Gopal Subramanium might have sought to give a quietus to the controversy surrounding the NDA Government’s opposition to his nomination as a judge of the Supreme Court by withdrawing his consent, but the episode has raised troubling questions over the roles of the executive and the judiciary in judicial appointments, and the process of their interaction. In his statement, Mr. Subramanium has suggested that the reason for his exclusion from a list of four names recommended for appointment by the collegium headed by the Chief Justice of India was that he was considered too independent to toe the government’s line. He has also faulted the judiciary for failing to stand up for him. It is understandable that he should feel let down after being invited by the collegium to be a judge of the Supreme Court, in a rare instance of a member of the Bar being sought to be directly elevated to the Bench of the highest court. However, his claim that the splitting of the list by sending three of the four names to the President for appointment compromised the appointment process is debatable. Sending a recommendation back to the collegium is part of the consultative process and there is no reason why the appointment of those about whom no issues had been raised should be held up, particularly if seniority within the list would not be affected. More serious is his allegation that his independent role as amicus curiae in the Sohrabuddin fake encounter case may have been the real reason behind the Narendra Modi government’s rejection of his candidacy.
The government’s silence has not helped its case, as the nature of its reservations about Mr. Subramanium remains unknown. Now that the matter is in the public domain, it may have to clarify whether it had communicated to the collegium why it considered him unsuitable. The collegium had the option of reiterating its recommendation, a move that will be binding on the executive, but Mr. Subramanium has chosen not to wait for its decision. By voicing his “sense of unease over the judiciary failing to assert its independence,” he is actually charging the collegium with meekly acquiescing in the rejection of its own recommendation. It implies that even a valid recommendation could be circumvented by unverifiable intelligence reports and unproven allegations in an opaque process. It also raises the question whether the present legal position that accords primacy to the Chief Justice’s opinion has goaded the executive to find other means of having its way. The present opaque procedure needs to be replaced by an appointments process that is genuinely consultative and transparent, so that the best legal brains are attracted to the bench.