The Chief Justice of India is not being fair when he seeks to shift the blame to the executive for the controversy over the non-appointment of Gopal Subramanium to the bench. In his remarks the other day at a farewell function for a retiring SC colleague, Justice R M Lodha waxed eloquent about the independence of the judiciary and suggested that the government was wrong in segregating the case of Subramanium from that of the three other nominees for appointment to the SC bench. It was his case that the segregation was done without “his knowledge or consent.” Justice Lodha went on to declare that he would be the first person “to leave the chair if the independence of the judiciary is compromised.” That he has not felt obliged to do so would suggest that the independence of the judiciary is not under threat, isn’t it? But why blame the Government? The truth is that it was Subramanium himself who unilaterally withdrew his consent to become a judge of the apex court. Why he did that is for him to tell, but the most plausible reason is that he found the media scrutiny of his conduct unbearable. A series of newspaper reports focusing mainly on his extra-judicial conduct, his covert and often overt belief in Tantric practices, his curious adherence to a seemingly illogical behaviour pattern in his private conduct were all laid bare by a prying media. Also, the old complaint by the CBI that he was allegedly trying to interfere in the ongoing 2G investigations/prosecution was recalled. The fact that he was the court-appointed amicus curiae in the Sohrabuddin Sheikh encounter case in Gujarat too was mentioned. However, there was near unanimity regarding the professional competence and financial integrity of Subramanuim. It is significant that none of the reports was sourced to an identifiable government functionary. Nor did anyone in the political executive volunteer a word edgeways disapproving the candidature of the former Solicitor General for elevation to the SC bench. If, under the above circumstances, Subramanium himself decided to withdraw his consent to become the SC bench, it is hard to see how the government can be held responsible for his decision. It is a canard that the government did not want him to become a judge of the apex court since he had been the amicus curiae in the Gujarat `fake’ encounter case. At that time, his role may have been construed as hostile by some in the BJP, but the fact that he performed a task assigned to him by the court would suggest that no animus or prejudice per se could attach to his actions. Even the charge of segregation is untenable, since there are precedents of this having been done in the past.
Assuming that the name of Subramanium was withheld when the government sent consent for the appointment of the other three, the SC collegium had two clear options. One, it could go ahead with the appointment of the three, which it did, while it took up the matter of Subramanium with the executive. Two, it could keep the appointment of the three in abeyance till differences over Subramanium were sorted out. In the event, it chose the first option. Even before it could consider the second option, Subramanium foreclosed the matter by publicly withdrawing his consent. His diatribe against the `system’ in his six-page letter to Justice Lodha further tightened the lid over the controversy, especially when he released that letter to the media. That matter ought to have been treated as closed at that stage. Therefore, Justice Lodha need not have reignited the controversy, especially when the collegium had no further role to play in the matter. Needlessly a confrontationist colour was sought to be given to the matter when the main cause of the dispute had himself left the field. Had Subramanium remained in contention, the collegium would have been within its right to press ahead with his elevation to the bench regardless of the reported reservations of the executive. The government, on its part, has said or done nothing that remotely suggests that it was out to undermine the independence of the judiciary. Yes, a review of the system of appointment of judges is long overdue. The proposed judicial commission and the broad-basing the process of appointment of judges of the higher judiciary ought to be expedited. Till that happens, the present system of collegium appointments is certain to prevail, despite its opaqueness and inbuilt infirmities. The short point is that none of the three estates of the Constitution has the right to play god, to grandstand, to bite more than it can chew. The clearly demarcated roles of the three must be performed without one trying to poach on the role and functions of the other two. The unfortunate Subramanium controversy ought to sensitise the judiciary and the executive about the fine constitutional lines that separate them.