‘Govt. should have taken collegium into confidence’

Former Chief Justice of India M.N. Venkatachaliah on Wednesday criticised the government over the way it handled former Solicitor-General Gopal Subramanium’s case.

“It unilaterally segregated the name of Mr. Subramanium and approved the others. If the government had apprehensions about Mr. Subramanium, they should have first shared them with the [Supreme Court] collegium before de-linking his name…. The government should have told the collegium that these are our reasons and it is difficult to accept your recommendation,” Justice Venkatachaliah told The Hindu on the phone from Bangalore on Wednesday.

“Suppose, if Mr. Subramanium’s name was the first among the four names recommended by the [Supreme Court] collegium, the government is not entitled to clear names 2, 3 and 4 and withhold the first name. The entire file with objections regarding the particular candidate has to be sent back to the collegium for re-consideration. This is what the Memorandum of Procedure between the judiciary and the executive says,” Justice Venkatachaliah told The Hindu on the phone from Bangalore.

Paragraph 80 of the majority judgment in the Supreme Court Advocates-on-Record Association versus Union of India or the ‘Second Judges Case’ of 1993 — which paved the way for the collegium system — echoes the opinion of Justice Venkatachaliah.

It describes how the appointment of judges to the constitutional courts is a collective process in harmony between the executive and the judiciary.

The 1993 judgment also gave primacy to the judiciary over the executive in appointment of judges. It had reasoned that “should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

So, once the collegium reiterates its recommendation that a particular person has to be appointed as judge, the government is bound to comply with the collegium’s decision as a “healthy convention.”

“But in Mr. Subramanium’s case, this situation will not arise as he has already opted out. It is better this way, because he would have run a risk had the collegium also seconded the government’s apprehensions,” said Justice K.T. Thomas, retired Supreme Court judge.