The Gopal Subramanium controversy and the belligerence of chief justice RM Lodha on judiciary’s independence have forced the center to look afresh into judges’ appointments.
By Rajendran Nair Karakulam and Shobha John
If you thought all was fair and square in the judiciary, think again. The unseemly tussle between the two important arms of the government—the judiciary and the executive—over senior advocate Gopal Subra-manium’s appointment as Supreme Court (SC) judge, has shown how heavy the stakes are. The row led to a fresh debate on the formation of a Judicial Appointments Commission (JAC), although the Modi government has put the idea on the backburner, as of now.
A collegium of five SC judges had recommended Subramanium’s name, along with chief justices of Calcutta and Orissa High Courts, Arun Mishra and Adarsh Kumar Goyal respectively, and senior lawyer Rohinton Nariman when the UPA was in power. The center requested the collegium to reconsider Subramanium’s case. The names of three others were cleared for SC judges. Feeling let down by the decision and a campaign that questioned his integrity, Subra-manium withdrew his candidature on June 25. In a TV interview, he revealed his hurt: “I am known to be utterly, utterly, utterly independent, which means I am inaccessible….”
Planned onslaught
The segregation of Subramanium was done by the Modi government on the basis of “adverse” reports by the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB). The CBI alleged that he had met 2G scam-accused A Raja’s lawyers while he was solicitor general, a charge Subramanium has denied. The IB had cited “personality oddities” such as Subramanium mentioning his spiritual instincts in the exposure of gold pilferage from Padmanabhaswamy Temple in Thiruvananthapuram.
Caught in this sudden maelstrom, Chief Justice of India (CJI) RM Lodha showed his unhappiness over the unsavory affair, and in the first serious embarrassment to the government, criticized it. He said: “I fail to understand how the appointment to a high constitutional post has been dealt with in a casual manner.” The CJI insisted that at no cost could the independence of the judiciary be compromised.
Although law minister Ravi Shankar Prasad refused to comment, the curt reaction already set the ball rolling on apex court’s fight with the Modi government on the judiciary’s independence.
The fact that this had to happen to Subramanium of all people must have compounded Lodha’s unhappiness. He holds him in high personal regard and had lamented on his resignation earlier as solicitor general in 2011 during UPA’s rule. He had gone on reco-rd to appreciate Subramanium by saying that the lawyer had ably conducted every single case on behalf of the center, and this showed his “high character, sweet manners and single-minded application.”
Of course, this is of no consideration to the ruling party, whose rejection of Subramanium seems simple—he was the amicus curae in the Sohrabuddin fake encounter case in which the names of Narendra Modi and his right-hand man Amit Shah figured prominently.
Power struggle
The system of judicial appointments was ridden with controversy since 1970 and criticized by the executive for giving too much power to the judiciary. As per the existing system, appointment of SC judges is at the discretion of the judiciary; the executive can only ask the collegium to reconsider a recommendation. In case a name is re-recommended, the executive has to clear the name, but it has the option of sitting on the file indefinitely. And, there was all likelihood that the present government could have sat on Subramanium’s file for months. Luckily for it, Subramanium quit before that.
The collegium system has had its critics in the legal fraternity too. In recent times, it has been criticized for its opacity, unaccountability and the hubris of the judiciary in considering itself the sole guardian of judicial independence. There have been charges of nepotism in the appointments process, lack of an adequate tenure for the chief justices of high courts, the consultation process being secretive and meritorious candidates from the bar and high courts being denied an opportunity to serve on the bench for undisclosed reasons.
Law Commission of India Chairman Jus-tice AP Shah has described the collegium system as a “solution which has proved much worse than the disease” and “exemplifies the misalignment between the core values of judicial independence and judicial accountability.” Senior Supreme Court lawyer Harish Salve said: “I have been a critique of this collegium system. It is not serving the Indian judiciary or democracy.” Now, the same system has been called into question for denying independence to the judiciary and for political interference in judicial appointments.
How fair is it?
The collegium system is an extremely sensitive one and requires the judiciary and the executive to place confidence in one another without airing views in public. What if the government of the day had gone public with the comments of the Chief Justice of the Gujarat High Court Bhaskar Bhattacharya that it was because he had opposed the appointment of former CJI Altamas Kabir’s sister to the Calcutta High Court bench when he was a member of that collegium that he was not elevated to the SC?
Bhattacharya had then written to Kabir: “When time came for the selection of Smt Shukla Kabir Sinha as a judge of the high court, I was pressured to agree to such a proposal as a member of the collegium, but I thought it would amount to committing rape of the Calcutta High Court, which was like my mother and if I didn’t raise any objections that would amount to closing my eyes while my mother was being raped.”
It is often difficult to reason why one person is recommended by the SC, while clarifications are sought for others. In 2009, when the then collegium recommended the names of Swatanter Kumar and CK Prasad, Kumar’s name was cleared for SC judge, while Prasad’s elevation was stuck because of some complaints against him.
So, what does the constitution say about the appointment of SC judges? Article 124(2) provides that every SC judge shall be appointed by the president after consultation with such judges as he thinks fit, which must include the chief justice. The current system of appointing judges on the recommendation of a collegium, consisting of the chief justice and four senior-most judges, has been arrived at through a series of cases known as the “Three Judges Cases”, each granting more independence to the judiciary.
In the first case, SP Gupta vs Union of India case of 1981, known as the “Judges Transfer Case”, the executive became powerful and had the last word on appointment of judges. The judgment faced a lot of criticism on the ground that the appointments were prone to political influence and hampered the independence of the judiciary. It was held that the proposal for appointment to a high court can emanate from any of the four constitutional functionaries mentioned in Article 217—which include the president, the CJI and the state governor—and not necessarily from the chief justice of the high court.
However, in 1993, the independence of the judiciary was restored. The Advocates on Record case, aka “Judges Appointment case” laid down that the opinion of the CJI has primacy in case of a conflict of opinion between the executive and judiciary. It was in this case that the collegium system of appointment was initiated and the CJI was bound to seek the advice of his two senior-most colleagues.
The third case was a presidential reference seeking clarifications over the second case judgment. In this case, the court merely enlarged the collegium from three to five of the senior-most judges and arrived at the current system of appointment.
Banking on JAC
The UPA government moved a Constitution (120th Amendment) Bill, 2013, granting constitutional status to the Judicial Appointment Commission Bill by amending Article 124 and Article 217. It has been passed by the Rajya Sabha and has to be moved in the Lok Sabha. The bill proposes a commission headed by the CJI which will have as members, two senior-most judges, the law minister and two eminent persons nominated by the prime minister, the CJI and the Leader of the Oppo-sition. It also proposes to make the central and state government responsible for making a recommendation to the commission along with chief justices of high courts. 
The establishment of the JAC would mean that the executive has a bigger say in judicial appointments. The JAC would ensure that any unreasonable action of the judiciary is prevented by the executive and any politically motivated action of the executive is checked by the judiciary. However, it may bring in multiple influences from the executive, judiciary, state governments and independent experts and lead to a chaotic situation. Let’s hope that the JAC, if appointed, will lay the ghosts of the past to rest.
—With inputs from Shailendra Singh and Sanjai Pathak