As amicus curiae in the >Sohrabuddin Sheikh encounter case, the former Solicitor-General Gopal Subramanium had pointed out several missing links in the charge sheet filed by the Gujarat Police and had strongly recommended a fresh investigation by the Central Bureau of Investigation.
Calling the State Police investigation a mockery, he had called for a comprehensive probe to the highest level.
In 2012, the Supreme Court expressed “strong reservations” against the trial in the encounter case proceeding in Gujarat. This was after the CBI, which was by then probing the case, appealed to the court for an order to shift the trial outside the State.
Amit Shah, the then State Home Minister, was also accused of playing a key role in the encounter of Sheikh, who was allegedly gunned down by the Gujarat Police on the outskirts of Ahmedabad in November 2005.
As the BJP-led NDA government maintains its silence on the collegium’s recommendation for Mr. Subramanium’s appointment as a judge of the Supreme Court, media reports state that the Centre is doing a “rethink” in his case. However, a senior government official termed the news reports as “speculative”.
If the government decides to oppose a collegium recommendation, the file is sent back for re-consideration to the collegium led by the Chief Justice of India and senior-most judges of the Supreme Court. However, the collegium can take the final call and reiterate its stance to get its way.
An eventual re-consideration, if it happens, on Mr. Subramanium may ruffle the collegium, as it has only four times in the past recommended members of the Bar over High Court judges to the Supreme Court since 1950. Justices S.M. Sikri, S.C. Roy, Kuldip Singh and Santosh Hegde were direct appointments from the Bar.
Further, any stone-walling of the collegium’s recommendation works against the spirit of an October 10, 1993 decision in Advocates-on-Record Association versus Union of India by a nine-judge Supreme Court bench, which dealt with judicial appointments to the Supreme Court.
“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-a-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 141-page judgment said.
Besides, the Supreme Court is facing a slew of judicial retirements post-vacation. Justices B.S. Chauhan and C.K. Prasad are retiring next month when the Supreme Court reopens. Chief Justice R.M. Lodha reaches the end of his tenure on September 27, 2014 while Justice Ranjana Prakash Desai, the only woman presence in the apex court, retires in October. Justice S.J. Mukhopadhyaya's term would end in March 2015, followed by H.L. Dattu, who is perceived to succeed CJI Lodha.
With the strength of judges set to dip, delay in appointments would affect pendency in the Supreme Court. The court has 63,843 matters pending as of May 1, 2014.
The collegium has also recommended the names of Chief Justices of Calcutta and Orissa High Courts, Arun Mishra and Adarsh Kumar, as judges of the Supreme Court.
