Judiciary has failed to assert its independence, says former Solicitor-General

Senior advocate and former Solicitor-General Gopal Subramanium on Wednesday faulted the Centre for not following the Memorandum of Procedure in appointment of judges by segregating his name from the list of four names without the active consent of the Supreme Court collegium.

Talking to journalists, he said if the government had any reservation against any candidate it should record its objections and return the entire file to the collegium and only with its consent that name/names could be segregated.

“If my understanding of the procedure is correct then the appointment of three persons, [the Chief Justices of Calcutta and Orissa High Courts, Arun Mishra and Adarsh Kumar Goel respectively, and senior advocate Rohinton Nariman] is illegal and against the framework prescribed by the Constitution and by the Supreme Court in various pronouncements,” Mr. Subramanium said.

He said the former Chief Justice of India, M.N. Venkatachaliah, who spoke to him, said the procedure followed by the government in segregating his name was incorrect as the entire file ought to have been returned to the collegium.

Mr. Subramanium, in his letter to Chief Justice of India R.M. Lodha said, “If I continue to be a judge-in-waiting, the validity of these appointments is bound to 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.”

Stating that harmony between different organs of the state was desirable feature, Mr. Subramanium said the functionality of each organ was meant to have different, defining characteristics. “I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. The court owes me, in the very least, a clear statement of confidence although my personal character is not dependent on the outcome of such willingness. It is an act of closure, which a Court of Justice owes to its own members. By failing to do it, the court will sink into quicksand,” he said.

The senior counsel said that over the fortnight a few media reports had voiced the Centre’s reservations over his appointment. He said the reports spoke of alleged adverse reports against him by the Intelligence Bureau and the CBI.

“I must say that these media reports are malicious insinuations based on half truths, and appear to be a result of carefully planted leaks aimed at generating doubts in the minds of the collegium and of the public as to the suitability and propriety of appointing me as a judge of the Supreme Court. 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,” Mr. Subramanium said.

Mr. Subramanium said, “You [CJI Lodha] had informed me that you would discuss any queries pertaining to the above issues when you return to Delhi on June 28. I promised that I would wait till the 28th of June to meet with you and express my desire to withdraw. I told you that my wife and family are undergoing agony at what was a wholly unnecessary experience. I assumed that I would be treated on par with the other nominees for elevation. However, having regard to what has transpired in the matter of segregation of names, of which I was never informed, I will have to withdraw from my silence to await your return to Delhi on June 28.”

Mr. Subramanium said that in accordance with the highest traditions, when a lawyer was invited to the Bench but doesn’t get to become a judge, the person ceases to practice in that court, until the incumbent Chief Justice demits office. “I shall, therefore, be resuming work at the Supreme Court only thereafter,” he said.

No comment: Prasad

Meanwhile, Law Minister Ravi Shankar Prasad told journalists that he did not wish to comment on Mr. Subramanium’s letter to the CJI.

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