Friday, Dec 09, 2022

'Malicious Insinuations Based On Half-Truths'

'Malicious Insinuations Based On Half-Truths'

'I am fully conscious that my independence as a lawyer is causing apprehensions that I will not toe the line of the Government. This factor has been decisive in refusing to appoint me'

Former Solicitor General Gopal Subramanium has opted out of being considered for appointment as Supreme Court judge after lashing out at the Modi government accusing it of ordering CBI to "scrounge" for "dirt" against him to scuttle his elevation

Subramanium, who had assisted the Supreme Court in the Sohrabuddin fake encounter case in which Amit Shah, a close aide of Prime Minister Narender Modi is now an accused, said that he was being "targeted" because of his independence and integrity.

He suggested that his role as amicus curiae, a friend of the court, in the Sohrabuddin case, could have been the reason for government opposing his elevation, although he had no direct evidence.

For those who came in late:

First came reports in the Indian Express on June 19 that while the Narendra Modi-led NDA government had cleared the names of senior advocate Rohinton Nariman, Calcutta High Court Chief Justice Arun Mishra and Orissa High Court Chief Justice Adarsh Kumar Goel for elevation to the Supreme Court Bench, it had sent back to the Collegium for reconsideration the name of former Solicitor General Gopal Subramanium as a Supreme Court judge.

The Prime Minister was said to have taken the decision after consultation with his senior Cabinet colleagues, including law minister Ravi Shankar Prasad.

The government decision was said to be based on "adverse intelligence bureau report concerning the senior advocate. The government, it is learnt, also received information about the charges against Subramanium from the CBI" relating to appearing in the 2G scam and on the basis of the supposed existence of a taped phone conversation between him and Niira Radia. 

If appointed, Subramanium would have gone on to become Chief Justice of India.

While the SC collegium could reiterate its recommendation, leaving the government with no choice but to clear the name. “But, the government has the option to sit on the file indefinitely.” 

The same newspaper then reported subsequently, on June 24, that the BJP government asked the CBI to confirm the allegations in the media reports that Subramanium met former telecom minister and prime accused in 2G case A Raja’s briefing counsel along with CBI officers investigating the matter. The CBI in its reply had confirmed the allegations as reported by the media in October 2011.

The newspaper points out that Subramanium had written a five-page letter on 21 July 2011, a week after he resigned as SG, to former law minister Kapil Sibal stating: “As far as 2G case goes, I was shocked to see that the extent of criminality wasn’t revealed to me by the government on its own. I have been hurt by the kind of media reports which have appeared about me. I just wish to put it on record for you that I never ever interacted with any lawyer in the case.”

More leaks followed, with insinuations that the Intelligence Bureau (IB) report on Subramanium questioned his appointment because of “personal oddities” and “odd behaviour”,  and that while taking decisions based on “spiritual instincts rather than rational logic”.

Meanwhile, a judge on the Supreme Court’s collegium, speaking on the condition of anonymity told the Economic Times that Subramanium’s “credibility and integrity” were beyond doubt:

There was nothing against him and all these facts, which are now being cited, were known to us. This was a unanimous decision, and everyone was so happy to recommend Gopal, he is a man of integrity.

I know about this conversation with Nira Radia, this actually goes in his favour, where Radia is heard saying Gopal is a decent man, he can't be handled or managed. And he is being targeted for a small thing like membership of swimming pool.

CJI can and should reiterate the recommendation, he can also refuse to administer oath to the other three judges, till Gopal's name is cleared and file sent to him… It is about independence of Judiciary, the institution is being maligned, this was a unanimous decision. If I was the CJI, I would reiterate it. The SC Collegium knows everything about the counsels, we consider everything, integrity, competence, only then we make recommendation.

And then came the letter withdrawing his name, pointing out that if he did not withdraw his candidature, the appointments of the other three judges who “have been my friends over so many years” would “come under a cloud”. 

“The least I owe them is that I withdraw. I am, however, unable to dispel the sense of unease that the Judiciary has failed to assert its independence by respecting likes and dislikes of the Executive.”

Subramanium, while rubbishing the allegations, went on to point out inter alia:

The IB has sought my advice on sensitive matters of national security for over 25 years (including during the previous NDA regime). In fact the then Deputy Prime Minister, Shri L.K. Advani, used to treat me with so much courtesy. The CBI has also consulted me on numerous occasions (before, during, and after my tenure as Law Officer) and I continued to have been its lead lawyer even after my resignation from the post of Solicitor General. Among the various matters in which I have led the State and the CBI are the Parliament Attack case, the Bombay Blasts appeals, and in the matter of the confirmation of the death penalty to Ajmal Kasab. One wonders why the CBI would repeatedly engage me as lead counsel over the past 20 years if there was any doubt. I have reliably learnt that the Ministry of Law & Justice initiated an inquiry after 15th May 2014, with a clear mandate to find something to describe me as unsuitable.

Full text of the former Solicitor General's 9-page letter to the Chief Justice of India withdrawing his consent to be appointed a Supreme Court judge:

Subramanium Letter