Legal Tangle

Rakesh Bhatnagar

Whenever a new government comes to power, things are set to change. But at times, it is the executive which is handicapped and the Modi government is no exception. This is especially so in judicial appointments of the highest order.

The Modi government will have to abide by the decision taken by a five-judge Supreme Court (SC) collegium, which elevated two former solicitor generals—Gopal Subramanium and Rohinton Fali Nariman—to the top court. Even though their names are yet to be sent to the president for the issue of “warrant of appointment”, the appointments are now binding on the Modi government.

Both Subramanium and Nariman were appointed during the previous Congress-led UPA government and fought several controversial cases for it, including those related to scams. The two had demitted office amid controversial circumstances. Once they become SC judges, with several years left for their retirement, the chances of either of them becoming chief justice of India—even within Modi’s tenure—are quite strong, which could cause trouble for the PM.

While Modi will have to bear with the two, the only option he has is long-term —bring about changes in law and curb the powers of judiciary in appointments, which, in fact, UPA had also tried to bring about through the 120th Constitution Amend-ment Bill.

Their appointment to the Supreme Court also raises the issue of supersession of several senior high court judges. The only precedent that exists is that of Justice Kuldip Singh and Justice Santosh N Hegde being brought directly to the SC.

High profile judges

Gopal Subramanium, 56, was appointed additional solicitor general in 2005 and continued in the post till May 2009. In July 2007, he acted as amicus curiae to assist the SC in the sensational Sohrabuddin Sheikh fake encounter case and slammed the Narendra Modi government in Gujarat for filing a charge-sheet on the basis of shoddy investigation to shield the “real culprits”.

He told the SC bench of Justices (retired) Tarun Chatterjee and PK Balasubramanyan that the chargesheet would “benefit the accused.” Terming it an unacceptable chargesheet, he said: “It speaks about Sohrabuddin and his wife Kausar Bi, killed two days after her husband was killed in a fake encounter. But there was no mention of the third person (Prajapati), who was picked up from the bus proceeding to Ahmedabad and killed along with Sohrabuddin and Kausar Bi.”

Subramanium, incidentally, has also served in other high-profile cases and his profile speaks volumes about his academic and professional expertise. He served as counsel for the Justice Verma Commission, which examined the security lapses leading to the assassination of former prime minister Rajiv Gandhi. He also assisted the apex court in the case of petrol pump allotment to widows of Kargil martyrs by the Vajpayee government; was counsel for the Justice K Venkataswami Inquiry Commission that probed the Tehelka tapes exposing corruption; and was special public prosecutor in the parliament attack case.

In sharp contrast, Nariman Jr, the son of eminent jurist Fali S Nariman, is reserved and known to be glued to legal briefs, particularly corporate and taxation law. It was when Subramanium resigned in July 2011, protesting against Nariman’s retention as a lawyer in an ongoing scam case that the government filled the crucial post of solicitor general with the 59-year-old Nariman, But he also demitted office in February 4, 2013. Presumably, the stern solicitor couldn’t see eye-to-eye with the then law minister, Ashwini Kumar.

Nariman, too, has taken up cudgels on behalf of the government in a number of cases. These include the then army chief VK Singh’s age dispute, Vodafone taxation, coal scam, the controversial Kudankulam nuclear power plant and the legality of VIP security and use of beacon lights.

Judiciary’s prerogative

It wasn’t always like this. There was a time when the executive was the sole authority to appoint and transfer judges. However, it was in 1993 that a bench of the Supreme Court examined Articles 124 and 217 of the constitution related to the appointment of judges to the SC and high courts, respec-tively. Popularly called the “Judges case”, a seven-judge bench comprising of Justices (all retired) late J Verma, SR Pandian, AM Ahmadi, MM Punchhi, Yogeshwar Dayal, GN Ray and AS Anand on October 6, 1993, delivered the mammoth judgment denuding the executive of its power to appoint SC or HC judges.

It ruled that their appointment “is an integrated, participatory, consultative process” for selecting the best and most suitable persons for the job. Thus, all the “constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose.” It said initiation of the proposal for appointment in the case of SC “must be by the chief justice of India (CJI), and in the case of a high court, by its chief justice; for transfer of a judge or a chief justice, the proposal had to be initiated by the chief justice of India.”

It added: “In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary, symbolized by the view of the CJI and formed with consultation with members of collegiums and other senior judges, has primacy. No appointment of any judge to the top court or any high court can be made, unless it is in conformity with the opinion of the CJI.”

Crucial commission

As reports of deterioration in the quality of judges appointed by collegiums poured in, the Vajpayee government in 1998 moved the Constitution (98th Amendment) Bill in the Lok Sabha in 2003, which provided for the constitution of a National Judicial Commi-ssion (NJC) to be chaired by the CJI along with two of the senior-most judges of the SC. The law minister, along with an “eminent citizen” to be nominated by the president in consultation with the prime minister, would also be members. The NJC would decide the appointment and transfer of judges and probe cases of misconduct by them and those from the highest judiciary. The bill lapsed.

Later, the UPA government introduced the 120th Constitution Amendment Bill, replacing the existing system with a Judicial Appointments Commission. But the bill was forwarded to a select committee for better consultation.
Reacting to attempts by governments to do away with appointment of judges by judges, some CJIs like P Sathasivam, KG Balakrishnan, SH Kapadia and SP Bharucha warned against its tinkering. But, the former judge of the SC, VR Krishna Iyer said: “Persons are chosen, privileged groups get priority, reconsideration is often rejected. The methodology is unscientific. The collegium must go.”

It remains to be seen what the Modi government will do.