What is extraordinary is the procedure by which this has been achieved. Out of four files sent by the judiciary for the consideration of the executive, three have been cleared and one held back. It is alleged that there are CBI and IB reports against Subramanium, but these have not seen the light of day. Some speculate the fourth file has not yet reached the judiciary for reconsideration. The process of reconsideration of the decision has been preempted by simply holding back the file, a kind of “pocket veto” . It is surprising that the President did not think it appropriate to deal with all four files before issuing the warrants of appointment -- either all or some but after considering all four of them.
Also read: Gopal Subramanium's Letter
It is difficult to speculate any further on these issues since none of the files have been put in the public domain and what actually happened is shrouded in mystery. Slowly the truth will emerge making it possible to evaluate the extent of the damage done to the judiciary – the damage is partly by the executive and partly self inflicted. There is some concern that the judiciary is treating this as a “ deemed rejection,” a procedure unknown in law.
One thing is clear: institutions of governance have surrendered their autonomy. A consensus built up over what is due process of law in the matter of appointment of judges has broken down. Institutions have succumbed to the dictates of the ruling party. On 15th May 2014, the IB had given clearance to the appointment of the former Solicitor General. After the elections, reports have been generated by the very same agencies, putting on record objections to his appointment. One is reminded of the famous remark of the present Chief Justice of India while hearing the coal scam case, that the CBI was behaving like a “ parrot in a cage” and it needed to be liberated. Much judicial time was spent on how to liberate the parrot.
The NDA government maintains that that they have a right to ask for reconsideration of the nomination of an individual. Indeed they do, but surely on relevant considerations in accordance with procedure established by law. They have not done this by withholding the file and going ahead and asking for warrants to be issued in relation to three of the nominated judges. We are told that there is adequate material against the individual warranting reconsideration , yet the material has not been shared until now. There is reason to believe that the materials have not been shared with the judiciary.
When confronted with the claim that Mr. Subramanium is being victimized for his having appeared in the Sohrabuddin case as amicus curia opposing unconditional bail for Amit Shah and because he was Solicitor General in the UPA government, the government responds with the claim that there is no such motive as is evident form the fact that another law officer of the UPA has been cleared. They appear to forget that one appeared in the Sohrabuddin case, the other did not. This is the covert motive, the hidden agenda. It is for the Supreme Court and for the people of the country to judge whether this is a relevant consideration for the non appointment of a person as a judge.
This episode has exposed the fault lines in the system of appointment of judges as it exists today. The government has a lot to answer for. I hold no brief for the Collegium system, but so long as it exists, it must he respected and followed.
Notwithstanding that Mr. Subramanium has withdrawn his consent, the Collegium can still demand that the file be sent to them, and return the file to the President, after having considered the material, if any sent to them. If they decide to stand by their recommendation, they must once again request Mr. Subramanium to give his consent. It he still does not give consent, the matter will be treated as closed, but what will have been achieved is the due process of law and the vindication of the independence of the judiciary.The Supreme Court cannot be blackmailed into accepting the decision of the executive simply by the exercise of a veto power. This is truly a test for the NDA government to prove its credentials to their proclaimed agenda of good governance.
The controversy has exposed the fault lines in the system of appointment of judges. The battle at this stage is symbolic but it is representative of things to come. The need for a fearless and free judiciary cannot be overstated . No ruling party can be allowed to pick and choose its judges in a cloak and dagger manner. Ar the very least they must be transparent about their choices. The entire system of appointment of judges needs to change. The BJP in its election manifesto promised a judicial commission for the appointment of judges. Even such a Commission may turn out to be a paper tiger if a false consensus is arrived at between the executive and the judiciary.
The “eminent person" on the Commission will after all be selected by the Judges and the Executive by consensus. There is no definition of who is “ eminent” and just about anyone can be appointed on the Commission with no reasons offered for the selection. The only solution seems to be that the proposed Commission should invite nominations from eligible persons for appointment as High Court Judges and the hearings before the Commission should be open and public. We will then have the opportunity to place all materials before the Commission and a final decision can then be taken before the appointment , rather that make allegations against the person after the selection. We the people of India have a right to know why certain people are being considered for appointment and their political background.
To give an example from the current appointments, one of the three judges appointed has his own political affiliations, he appeared in the Supreme Court in the Babri Masjid case on behalf of the then Chief Minister of Uttar Pradesh and tendered an affidavit in court that law and order would be maintained. On the following day the mosque was demolished. All this and more ought to be debated before and not after the appointment if we want a truly independent judiciary. We need an explanation to these bizarre events from all the stakeholders, the Judiciary the Prime Minister, the CBI and the IB.
The government of the day should learn from history that the judiciary is not easy to tame. The people of this country are accustomed to having a free and fearless judiciary and will tolerate no less. We may just be playing with fire here, a fire that will not leave the executive untouched. The only solution now for the judiciary to reassert its supremacy is to refuse to swear in the judges who have been appointed.
Disclosure: She appeared in the Sohrabuddin case on behalf of the Union of India and has personal knowledge of the role of Mr. Gopal Subramanium in the case.