The Chief Justice of India, R.M. Lodha’s statement blaming the Centre for “unilaterally segregating” senior advocate Gopal Subramanium’s name for elevation as Supreme Court judge raises many doubts (July 2). It is difficult to assume that such a segregation of one or more names is illegal. It must be noted that the CJI found impropriety with the executive for what it did as it was without his knowledge and concurrence. The government only returned his case to the collegium for “reconsideration.” Admittedly, this is a part of a consultative process and admissible under the law. It is not known whether a consultation is binding even before the file is returned. Moreover, the segregation by itself does not prevent the collegium from reviewing its stand. Thus, the fear of a “compromise of the independence of judiciary” seems to be out of place.
The order of the nine Judge Supreme Court Bench of October 10, 1993 unambiguously says that “the role of the Chief Justice of India in the matter of appointment of judges of the Supreme Court is unique, singular and primal, but participatory vis-à-vis the executive on a level of togetherness and mutuality. And neither he nor the executive can push through an appointment in derogation of the wishes of the other.” The present episode shows the absence of the stated “togetherness and mutuality.”
The CJI has delivered a sharp rap on the knuckles of the BJP/NDA government. The government’s meek admission that the issue has no valid status now as Mr. Subramanium has already withdrawn his candidature cuts no ice as the government had done enough to drive Mr. Subramanium to a situation where withdrawal was the only way he could salvage his reputation.
The efforts of the government to denigrate Mr. Subramaniam by endeavouring to dig out the dirt on him is a sordid chapter in the judiciary-executive relationship and speaks very poorly of the government in general and the Law Minister in particular. The CJI’s stand is one that has struck a blow for the judiciary.
The independence of the judiciary has a much wider connotation than spelling mere independence from the executive. In his book Unspeakable Anecdotes, Justice V.R. Krishna Iyer, while commenting on judicial appointments, refers as to how the then CJI once opposed his elevation to the Supreme Court only on the ground that he was a Communist. He also refers to how Mr. Justice Mathews, then a sitting Judge of Supreme Court, told Justice Krishna Iyer how lonely he felt when he found that judges are not in favour of socialist thinking. Therefore, we will have to closely examine the selection and appointment of judges on the basis of how far they fulfil the socialist credentials of the Constitution. When these appointments were in the air, the only talk was about how much income these lawyers were making and the sacrifice they would be making by accepting judgeship. I think appointments should not be based on income but on outcome.
The CJI’s remark, though belated, has caught the Centre off guard. However, it is not clear why he has chosen to express his views at a function instead of formally communicating his strong views to the government through a letter. Will the government, which has shown utter disregard for the judiciary’s formal recommendations, care for such an off-the-cuff remark? It would appear as though the judiciary has become wary of asserting its independence.