Politicising appointments

Recent government action is a jolt to the system

On the 40th anniversary of the Emergency - a period that saw the tragic politicisation of the judiciary - a set of ghosts has been entirely unnecessarily let loose. In withholding its consent to the appointment of prominent lawyer and former solicitor general Gopal Subramanium as a judge of the Supreme Court, the government has once again raised worries that the executive may be preferring a "committed" judiciary. It is ironic that Indira Gandhi's actions in this respect - the supersession of as many as three judges of the Supreme Court - were loudly criticised by the Bharatiya Janata Party (BJP) in particular. Partly as a response to the problems of the 1970s, over the past two decades the higher judiciary has carved out a great deal of independence for itself in the matter of appointments through the self-referential collegium that appoints new Supreme Court judges. So it is particularly unfortunate that the government has chosen to remind the judiciary and other observers of the dangers of executive control at just the moment when a consensus in favour of alternative methods of judicial appointments was building up.

The collegium had recommended Mr Subramanium's name to the government. It has since been learnt that the other names recommended along with Mr Subramanium's have been accepted. This was revealed through media reports of unknown provenance. Other media reports revealed the facts the government claimed lay behind its reasoning - such as, for example, Mr Subramanium's relation with the lobbyist Niira Radia and his actions during the investigation into 2G licences. These events have been amply explained by Mr Subramanium. Thus, the government's action rests clearly on questionable facts and was not revealed transparently. Mr Subramanium himself contends that the government merely asked its investigative agencies for an excuse to blackball him. If so, this insults not just a respected lawyer but the judicial system itself, and politicises judicial appointments. Mr Subramanium pointedly referred to his actions as amicus curiae in the Gujarat fake encounter cases. It would be deeply unfortunate if this underlay the decision to object to the Supreme Court's desire to raise Mr Subramanium to the bench. Mr Subramanium has since withdrawn his name from contention. But the issues raised remain, and must be addressed by both the government and the judiciary.

This action on judicial appointments combines with several other problematic actions to suggest a regrettable move towards politicisation of appointments and the judicial system. For example, the investigation into illegal surveillance by anti-terrorism squads in Gujarat is likely to be withdrawn - which should not have happened if the BJP or the Gujarat government has nothing to hide. Then there's the suggestion that state governors quit en masse. Reports have also emerged that bureaucrats who served ministers in the previous government could not serve ministers in this one: Home Minister Rajnath Singh was denied his preferred choice of private secretary in the process. Intelligence and vigilance inquiries on these officers have also been reportedly stepped up. This politicisation of appointments is a cloud over a government that has otherwise started well.