Federalism Most Suited Idea For India In View Of Its Diversity, Centralising Whole Things Will Lead To Troubles : Justice Chelameswar

When asked how well can judiciary protect federalism, Justice Chelameswar replied that, "The statement that whether the judiciary will be able to protect the federalism in this country in my opinion is an absurd statement. Federalism is a political arrangement, judiciary is a part of the federal system. Question of judiciary protecting or not protecting does not arise. If the political elements of the federation do not work out the federal system properly, no constitution, no judiciary, no judge can ever save it."

When Lok Sabha MP Asaduddin Owaisi, also a member of the panel, remarked that "the judiciary had also been lacking.. for example Article 370, it has not yet been heard, when 80 lakh people were basically imprisoned in their homes without any net nothing really happened", Justice Chelameswar stated that, "As regard the skepticism of Mr. Owaisi, well of course questions are always there in any democratic society, questions are there and debate is inevitable and no institution is perfect but then to improve the situation, a constant debate is required and a constant effort is required by all the stakeholders and the greatest stakeholders in any democratic system are the people and their representatives ultimately, in other words the politicians, if they do not play there role the way they ought to play it then things start slipping away from the hands."

Justice Chelameswar explained that the scheme of the Constitution indicates that more powers are to be invested in the Union Government.

Drawing a comparison he added, "When we are talking about federalism, all of us perhaps somewhere have an idea of American Federalism where the States got together to form a Federation, independent states which retained their sovereignty and parted with the bit of the regulatory authority to the Federal Government. In India, that is not the system, because in America, if you take the American Model, none of the existing states can be destroyed or totally obliterated from the map. Even American Constitution provides for creation of a new state by merging different territories or different states within the country but then such a thing is possible only with the consent of both the states from whom the territory is sought to be carved out and then special majority in the Congress and so on and so forth. If you look at the Indian Constitutional system, the text of the constitution, by a simple law of the Parliament an existing state can be obliterated from the face of the map, a new state can be created in the process. The constitution provides for altering the boundaries of various states and so on and so forth with a simple law. The consent of the concerned states is not required, maximum that matter is referred to that particular state… a resolution and now these resolutions are passed and even if the resolution is passed what is the attention paid to that resolution in the Parliament is a different question. Mr. Owaisi would know it better. It's a political decision to create or not create a particular state. The question is did we follow what exactly is a rational process in this and these rational processes are only possible if the players in political arena conscientiously discharge their constitutional responsibilities by properly debating the issue. Once a bad precedent is set up it continues, it may happen in X state today, it may happen in Y state tomorrow so on and so forth."

Talking about the Indian Constitution he stated that, "now essentially the tendency of Indian Constitution is to create more and more power in favour of the Union Government and in the process in the last 70 years on various occasions wittingly or unwittingly various constitutional organs fell a prey to this trap."

He also shared an experience and stated, "Generally an annual conference of all the Chief Justices is held in this country, various questions are debated. In one of those conferences which I had the privilege to attend, some proposal was made by the then Chief Justice of India with the suggestion that all the Chief Justices may consider. It is a very civilized way of directing the High Courts. All the High Courts may adopt this model. Then I had to tell the Chief Justice of India, at that point of time I was presiding over a High Court as Chief Justice which had its jurisdiction over 7 states, 7 different benches, 7 registries, 7 different governments, 7 different sets of service rules governing the employees of the registry in that particular bench and then if you ask me to follow a model generated in Delhi which basically is generated on the basis of some experience gained out of UP or Bombay or Calcutta or Madras, it is not going to work out that way. Then of course, the then Chief Justice of India said, brother you form a separate class, may be you can adopt the proposal to suit the convenience of your High Court. The point is, what is valid in this argument is valid for every aspect of Indian political problem. It is such a huge country with huge elements of difference. The idea of Federalism is the most suitable idea for this country in view of all this diversity. The minute you try to centralize the whole thing and create a model which you believe is good for the entire country for all the states and all the classes of people, then we are into trouble."

A member of the audience raised a query before Justice Chelameswar that, "We have grown up with the belief that you are the last resort in the sense that the Supreme Court of India is the last resort for the people in the context of federalism for the states. Please tell us honestly do you think we are now in a situation where the Supreme Court can be considered as a last resort where the interest of states and the people are going to be protected. We are hearing fabulous grand statement made by your brother judges in seminars and workshops but in terms of orders being delivered there things appear to be different."

Justice Chelameswar in a lighter vein remarked that, "Those grand statement are widely published by you and your ilk. It is because of you these statements come please remember that, don't blame anybody first blame yourself and first of all your question 'please tell us honestly' what makes you believe that I will not give an honest answer I don't understand".

Responding to the query put forward he stated, "You said the Supreme Court, I don't believe that there is a Supreme Court, there are 16 Supreme Courts in the country as of today, the highest court of this country doesn't sit enblock. What is decided by two judges sitting in a bench today this morning might be disagreed to by another bench in the afternoon session. I am not blaming anybody. I am giving you the factual in which case what Supreme Court are you talking about. I am not saying it for the first time here, something like this I said it when I had the privilege of delivering Late Justice H. R. Khanna memorial lecture sometime in 2015 and its not I who invented it, it all started long back.

Justice Hidayatullah former Chief Justice of India in this city delivering a lecture made the statement, it's become a two judge quote, he said, in our days most of the important matters were decided by Constitution benches and nowadays everything is being decided by two judges and the next morning another two judges reverse it. It happens because naturally it is such a system where the highest court sits enblock on any issue a decision would be a decision of the court. Even when the entire court sits together, there can be differences of opinion, but the majority opinion would be won and that would be binding on the country. When you have 15 or 16 benches of the Supreme Court, every decision of the bench is binding on the rest of the country. This is a system which perhaps requires some attention to be paid. Something is to be done about it because without meaning any disrespect, people who are in control of the executive power would always love this kind of a system because it is always comfortable to handle situations. If the entire Supreme Court of 30 judges or 20 judges were to sit together and decide the matter and if the judgment is not palatable to the government which ever may be the party, it may take a decade or two before it can be reviewed because to pursuade the 20 judges that earlier judgment requires reconsideration because of xyz factors it takes a lot of time. If matters are decided by two judges or three judges much easier to persuade two judges or three judges that earlier judgment requires reconsideration. Therefore, nobody bothers about this thing. If debating these matters let us debate about these things".