A subversion of the judicial system

The case of eminent senior advocate Gopal Subramanium, whose name was forwarded along with three others to the government for elevation as judge of the SC by the Chief Justice but was openly rebuffed by the powers that be, should fill us with concern. It tells us that the government of India can do pretty much as it pleases in making top-level judicial appointments. This is not how it is meant to be.

The model of the government having sole discretion in making senior judicial appointments was given up on account of the danger of its obvious misuse, the case of supersession of judges in the 1970s being the most illustrative example. The collegium system has since evolved. Under this the CJI, in consultation with the four most senior judges of the apex court, proposes appointments and transfers and advances the names to the government. But the present case signifies the collapse of this system also.

In the present instance, the government simply segregated Mr Subramanium’s name from the remaining three on the list, for whom a warrant of appointment was duly issued. This was a patently crafty move. CJI R.M. Lodha was kept in the dark about it. This amounted to countermanding the judges’ collegium.

The government did not bother letting the CJI know why it thought Mr Subramanium was unfit to be a judge of the Supreme Court. However, leaked stories to the media implied that vetting by the IB and the CBI had revealed that the prominent lawyer had breached professional propriety in sensitive cases when he was Solicitor-General of India.

The issues as raised by the IB and the CBI — pertaining to the 2G case — look like being little tricks with which to muddy someone’s name through the media to enable his exclusion from consideration from high office, or to “bork”, after a well known case in the US. The outstanding feature of this is its opaqueness.

Such governmental conduct subverts judicial independence. We must understand that segregation was not done after securing the CJI’s concurrence. The CJI was simply overruled. Regrettably, he has not protested governmental encroachment on his realm. For those familiar with recent politics, the IB and CBI reports may be a diversion.

The real story may be that Mr Subramanium might have fallen foul of the BJP, now the ruling party, for proposing as amicus curiae in the Sohrabuddin murder case in Gujarat that while Amit Shah may be given bail, he must be kept out of Gujarat. Mr Shah is now tipped to be BJP president.

Politics and judicial fair-play cannot go together. The enactment of the Judicial Appointments Commission Bill brooks no delay.