Looking For Lily Whites
- Cleared Subramanium in one report, cast aspersions on him in the next, to the law ministry
- Wrote to the CBI with newspaper clippings demanding confirmation of a dispute
- Advised the President to sign warrants without knowledge and concurrence of the CJI President
- Agreed to segregation of names, signed warrants without confirming if the CJI was consulted
- Cast unsubstantiated aspersions on Subramanium, quoting anonymous sources in the government
- His emotional outburst painted him in a bit of poor light too
In the 64 years since 1950, only six lawyers have been invited to be Supreme Court judges, four have taken the bench so far. To see those figures in perspective, consider that, during the same period (till June 2014), the SC has had 210 judges. The last a lawyer was made an SC judge—it was N. Santosh Hegde—was in 1999. Of the lawyers raised to the SC bench, one—Justice S.M. Sikri—retired as the chief justice of India (CJI). Senior advocate and former solicitor-general Gopal Subramanium, 56, invited to the bench this year, could have risen to become CJI—if the sly media campaign against him, launched with the obvious blessings of the government, had not led to him withdrawing consent.
The damning dribbles were all attributed to anonymous sources and the government did not utter a word of denial. First, it was said the government did not favour Subramanium; then, the disfavour was justified with contents from allegedly adverse reports on Subramanium from the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI); finally, the government confirmed that it had segregated Subramanium’s name and cleared the rest of the names recommended by the collegium that selects judges.
The reaction of CJI R.M. Lodha to these developments, which took place when he was abroad, could not have been sharper. “I’ve taken objection to the segregation unilaterally done by the executive without my knowledge and concurrence. It was not proper,” he declared. He said he’d consistently fought for the “non-negotiable” independence of the judiciary, and if it was threatened, he’d be the first to quit. This was a public rap on the knuckles of Union law minister Ravi Shankar Prasad, but the usually garrulous minister responded with stoic silence. Anonymous sources again piped up with calibrated innuendo, hinting they could do even more damage to Subramanium’s reputation. Subramanium continues to be blamed for releasing his letter of withdrawal to the CJI.
Some jurists underplay the controversy: they call it a procedural impropriety; the government can only be blamed for not having the courtesy to inform the CJI. But the larger legal fraternity sees in the events the government’s willingness to interfere in judicial appointments. Justice Lodha retires in September after one of the shortest tenures as CJI—barely five months—and this may have emboldened the government to do what it did. The President has already signed the appointment of three of the four names recommended to the bench, so the CJI is left with little option but to administer the oath of office to them.
The government certainly departed from procedure. The practice, if it has reservations on even one name, is to return the entire list. By segregating one name without the CJI’s knowledge, it essentially interfered with the collegium’s prerogative to examine the objections and change its mind. It also deprived Subramanium of any opportunity for rebuttal or redress. Worse, it ensured that if he is at all nominated again, he’d lose his seniority. It is not clear, too, if the President was aware of the segregation. If he was, jurists say, he might well have advised the government to wait till the CJI returned. The appointments were hardly an urgent matter, for the SC was on vacation.
There are more hints of machinations at work. The IB’s informal report to the CJI cleared Subramanium’s name. But a later report to the PMO—according to leaks to the media or anonymous sources—pointed out “oddities”, including his spiritual inclinations. This would have been seen as farcical, but media reports have the government citing this in annulling the wisdom of the five seniormost SC judges on the collegium. Anonymous sources were also quoted saying Subramanium’s interest in the occult and his turning up at Parliament in a veshti (south Indian dhoti) after the 2001 terror strike also went against him. The leaked report also cited a snippet from the infamous Radia tapes, in which lobbyist Niira Radia discusses with industrialist Ratan Tata the possibility of giving Subramanium a complimentary membership for use of a swimming pool at the Taj hotel in Delhi. It leaves out that Radia also said in the conversation that Subramanium was far too upright to be influenced—even if he accepted the offer.
The CBI plays no role in the appointment of judges, but the law ministry, citing news reports, had sought official word on a dispute between Subramanium and the agency. A CBI insider said, “It was just a matter of record, and since there was official correspondence between Subramanium and CBI on the issue, the agency confirmed it.” But the fact that Subramanium represented the agency before and after this dispute was glossed over. Clearly, the government has been proactive in building a case—however flimsy—against Subramanium.
The widespread belief is that Amit Shah, the PM’s confidant who’s tipped to be the next BJP president, does not want Subramanium as an SC judge. The lawyer was amicus curiae in the fake encounter killing of Sohrabuddin Shaikh, in which Shah was chargesheeted. He opposed unconditional bail and tightened the net around Shah.
The charge that a vindictive government tripped up Subramanium because of his past association with the UPA and cases related to Gujarat is, however, complicated by the fact that Rohinton Nariman, the other lawyer invited this year to the bench and cleared by the collegium, was cleared though he’d served the UPA as law officer and argued cases against the Gujarat government. But then, Nariman hadn’t crossed Shah’s path.
A lawyer with a reputation for legal acumen and probity, Subramanium was first considered for elevation when he was barely 39, say people who know him. He was dropped because then he would have remained a judge of the apex court for 26 years. He was again sounded in 2011, but turned it down as a relative was an SC judge at the time. On the third sounding, this year, he had consented.
With as many as eight SC judges retiring this year and with six current vacancies, the appointment of judges is going to be an exercise that will be watched closely and contested bitterly during the next several months.