Collision course?

By segregating senior advocate Gopal Subramanium’s name from the four names recommended by the Supreme Court collegium for appointment to the apex court, the Modi government has weakened the judiciary’s primacy in the appointment of judges.

Gopal Subramanium.

IN May, the Supreme Court’s collegium, headed by the Chief Justice of India (CJI), Justice R.M. Lodha, and comprising four senior judges, recommended to the outgoing United Progressive Alliance (UPA)-II government the names of four persons for appointment as judges of the Supreme Court. Of these, Justices Arun Mishra and Adarsh Kumar Goel were the Chief Justices of the Calcutta and Orissa High Courts respectively. The remaining two, R.F. Nariman and Gopal Subramanium, were former Solicitors General. The outgoing government completed the necessary intelligence and background checks on these appointees but refrained from forwarding their names to the President for appointment as a matter of propriety since a new government was to be sworn in within a few days. It was widely believed that the Narendra Modi government, which came to power on May 26, would respect the recommendation of the judiciary and appoint all the four. Legally, if the collegium unanimously reiterates its recommendation if it is returned by the government for reconsideration, it will become binding on the government.

Therefore, when the Modi government, on June 19, segregated Gopal Subramanium’s name and forwarded the names of the remaining three for approval by President Pranab Mukherjee, it caused considerable disappointment and dismay in legal circles. Gopal Subramanium’s competence as a senior advocate of the Supreme Court and his potential for judgeship are impeccable. Rather than his non-appointment as a judge, it was the manner in which the government went about it that displeased the legal fraternity.

Despite the unsubstantiated allegations of impropriety against Gopal Subramanium in the reports submitted to the government by the Intelligence Bureau (I.B.) and the Central Bureau of Investigation (CBI), the legal fraternity holds him in high esteem.

While appointing judges to the higher judiciary, the Central government is bound by the Supreme Court’s judgments in the Second (1993) and Third (1998) Judges cases. In the First Judges case (1981), the Supreme Court had held that the President was not bound by the advice of the CJI in the appointment of judges and that his “consultation” with the CJI in the matter of appointment of judges, as envisaged in the Constitution, did not mean “concurrence”.

In the Second Judges case, the court overruled its own decision in the First Judges case and held that the President was bound by the recommendation of the collegium comprising the CJI and two other senior judges of the Supreme Court. In the Third Judges case, which was born out of an advisory opinion tendered by the court to the President, the court expanded the strength of the collegium from three to five, by including two more senior judges of the Supreme Court. If the government disagrees with the recommendation of the collegium, it can return it for reconsideration once. However, if the collegium unanimously reiterates its recommendation, it will become binding on the government.

The government is bound to follow the “Memorandum showing the procedure for appointment of the Chief Justice of India and the judges of the Supreme Court of India”. This memorandum, available on the website of the Department of Justice, shows that after receipt of the final recommendation of the CJI, the Union Minister of Law, Justice and Company Affairs will put it up to the Prime Minister, who will advise the President in the matter of appointment (Paragraph 3.5).

Clearly, the Prime Minister has no power to advise the President in the matter of non-appointment of persons recommended by the collegium. Read together, the memorandum and the judgments in the Second and Third Judges cases clearly show that in case of non-appointment of a person recommended by the collegium, the right course would be for the Law Minister to convey the government’s reservations to the CJI and other members of the collegium and obtain their consent to defer that particular recommendation, pending its reconsideration by the collegium.

Segregation of names recommended by the collegium and selectively recommending to the Prime Minister from among such names proposed by the collegium implies that the government unilaterally rejected certain name/s without giving the collegium an opportunity to reconsider its original recommendation in the light of reservations expressed by the executive. While the government may be correct in claiming that segregation of names recommended by the collegium is not unprecedented, it appears from the interview given by Gopal Subramanium to Frontline (see page 43) that this was done only after obtaining the consent of the collegium in writing.

With the President giving his approval for the appointment of the other three persons recommended by the collegium, its validity has come under a cloud in the light of the objections raised by Gopal Subramanium and others. The former CJI Justice M.N. Venkatachaliah is of the view that the entire file carrying the four names recommended by the collegium ought to have been returned to it for reconsideration.

Justice V.R. Krishna Iyer, former Supreme Court judge, in a statement, described Gopal Subramanium as a sound lawyer with great integrity who would have been a tribute to the Supreme Court Bench. To eliminate him from the appointment to the Supreme Court, he said, “will be an indefensible disaster and a disappointment, which the country need not suffer at all”.

Shanti Bhushan, former Law Minister and a senior advocate, and Gopal Subramanium had appeared on opposite sides as lawyers in many cases. In a statement condemning his non-appointment as a Supreme Court judge, Shanti Bhushan said it reminded one of the 1973 episode when Prime Minister Indira Gandhi directed Law Minister Mohan Kumaramangalam to take steps to have a committed judiciary. Several other members of the legal fraternity, including former Additional Solicitor General Indira Jaising, senior advocates Rajeev Dhavan, Dushyant Dave and Raju Ramachandran, deplored the non-appointment of Gopal Subramanium.

Although Gopal Subramanium stated in his June 25 letter to Justice Lodha that he chose to withdraw his consent to become a judge, he claimed that he did so because he did not wish to cloud the prospects of the other three appointments. However, in his interview to Frontline , he maintained that the three appointments were unconstitutional and could be challenged legally.

The unlawful segregation of names was just one aspect of the controversy. What the government subsequently did outraged the legal community. The government leaked to the media unsubstantiated allegations about Gopal Subramanium from the reports of the I.B. and the CBI that were submitted to the Modi government.

Law Minister Ravi Shankar Prasad, however, chose to avoid public comment on the controversy, clearly hinting that the government’s aim was to sully Gopal Subramanium’s image by making selective leaks from the investigative agencies’ reports.

But these allegations were hardly convincing. One of them is that he had arranged a meeting between the CBI and the lawyer of the then Union Communications Minister A. Raja, an accused in the 2G spectrum scam, in his presence. Gopal Subramanium has denied the factual basis of this allegation both in his letter to the CJI and in his interview to Frontline .

The other allegation is that the leaked tapes of the conversation between the controversial corporate publicist Niira Radia, who wielded political influence during the UPA regime, and a third person shows Gopal Subramanium in a poor light. As pointed out by Shanti Bhushan, the conversation between Niira Radia and the industrialist Ratan Tata shows Gopal Subramanium in a favourable light as Niira Radia is heard saying: “I am not sure that he [Subramanium] will agree to what they say. He is an upright person. I think Raja will be trying to get the A-G [Attorney General].” Gopal Subramanium has also refuted other allegations made in the I.B. and CBI reports about him.

The government has not bothered to refute Gopal Subramanium’s charge that it did not appoint him as a judge because it feared he would not toe its line. In his letter to the CJI, Gopal Subramanium has referred to his role as amicus curiae in the matters of Rubabbuddin Sheikh vs State of Gujarat between 2007 and 2011. The Supreme Court had handed over the investigation of the disappearance of Sohrabuddin Sheikh in a fake encounter to the CBI, overruling the pleas of the Gujarat government. Did the Modi government stall Gopal Subramanium’s appointment because of his role in this case, which went against the Gujarat government? Fali S. Nariman, however, disagrees. He has pointed out that his son, R.F. Nariman, who is one of the three appointees to secure the Modi government’s approval, had appeared against the Gujarat government in the Lokayukta case.

But analysts are inclined to believe that the Modi government appeared to have considered Gopal Subramanium too risky as a Supreme Court judge, especially when some crucial cases concerning the previous Modi government in Gujarat are likely to be heard by the Supreme Court. Also, the senior advocate had served the UPA government far too long as its Solicitor General.

At a public function held on July 1 to bid farewell to Justice B.S. Chauhan, who retired on that day, Chief Justice Lodha described the government’s segregation of Gopal Subramanium’s name without his consent as improper. He also said that he could not succeed in persuading Gopal Subramanium from withdrawing his consent. In view of this, after discussing with two more judges who are likely to become CJIs in future, the collegium saw no merit in pursuing the matter.

On Gopal Subramanium’s charge that none of the judges came to his rescue when the government sought to tarnish his image through selective leaks, the CJI said the judiciary could not react to media reports and that he was shocked that Gopal Subramanium made his June 25 letter to him public before he came to meet him on June 28. The CJI’s resolve that he and his colleagues would not compromise the independence of the judiciary is reassuring at a time when the Modi government’s unilateral action in denying judgeship to Gopal Subramanium has seemingly weakened the judiciary’s primacy in the appointment of judges. The Supreme Court’s judgments in the Second and Third Judges cases are far from perfect, as the court has arrogated to itself the power to appoint judges without any support in the Constitution. The court did so at a time when the governments at the Centre were seen to be weak and indecisive and the judiciary sensed an opportunity to protect its independence from the executive’s encroachment.

The government’s defence, according to reports in the media, is that the executive's right to segregate the name/s in the list of appointees recommended by the collegium is inherent in the judgment in the Second Judges case. Therefore, it does not require the CJI’s consent to refer such segregated name/s for reconsideration of the collegium on the basis of cogent reasons. The point, however, is that the government sought to achieve through unsubstantiated leaks from the reports of the I.B. and the CBI what it could not hope to achieve by asking the collegium to reconsider the names. The leaks forced Gopal Subramanium to rebut the allegations in order to protect his reputation and withdraw his consent to appointment as a protest, when the Supreme Court or the CJI was unable to come to his defence during the vacation.

Segregation of the name of a proposed appointee from other proposed appointees cannot but damage the reputation of that person so separated because the cogent reasons the government had offered the collegium are under wraps. Segregation becomes obvious when the government clears the names of the other appointees. It is for this reason, observers feel, that the government ought not to have cleared the names of other appointees until the collegium got an opportunity to reconsider its recommendation on Gopal Subramanium.

But as the Gopal Subramanium episode has shown, a determined government with a brute majority in the Lok Sabha can upset the balance between the executive and the judiciary and threaten the latter’s independence in ways that were not anticipated earlier. The aberrations in the court’s judgments in the Second and Third Judges cases need to be corrected through a mechanism that adequately takes into consideration the concerns of both the executive and the judiciary in the appointment of judges to the higher judiciary.

While Gopal Subramanium’s decision to withdraw his candidature might have served to avoid a confrontation between the executive and the judiciary, the collegium saw no need for a reiteration of its recommendation to appoint him, which would have become binding on the government. But the episode has sent ominous signals about the kind of relationship that could exist between the executive and the judiciary under the Modi dispensation.