The relationship between the judiciary and the National Democratic Alliance government has begun on a sinister note. What has been achieved by the former Solicitor General Gopal Subramanium withdrawing his name from consideration for appointment as a judge of the Supreme Court is the supremacy of the executive over the judiciary. This exhibits a desire by the NDA government to pack the judiciary with friendly judges and to exercise the power of veto over the recommendations of the judiciary by disqualifying those that are inconvenient to them.
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 reports from the Central Bureau of Investigation and the Intelligence Bureau against Mr 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. 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 May 15, 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.
The NDA government maintains 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 victimised for 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 from 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. 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.
I hold no brief for the collegium system of appointment but, so long as it exists, it must he respected and followed. Notwithstanding Mr Subramanium's withdrawal of 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. If 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 adherence to their proclaimed agenda of good governance.
The controversy has exposed the fault lines in the system of appointment of judges. 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.
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 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 than 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.
The government of the day should learn from history that the judiciary is not easy to tame. We may 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.
The writer was Additional Solicitor General.
Disclosure: Ms Jaising 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
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