Chief Justice R.M. Lodha deserves appreciation for breaking away from the secrecy surrounding the process of appointment of judges and disclosing that the government had unilaterally segregated the name of Gopal Subramanium from a four-member list it had recommended for appointment as Supreme Court judges. The disclosure that the separation of one name for reconsideration, while sending up the other three for appointment, was done without his knowledge and concurrence has placed the onus of explaining the rejection of Mr. Subramanium’s candidacy squarely on the government. When Mr. Subramanium went public with his letter to the Chief Justice of India withdrawing his consent to be made a judge, the immediate upshot was that it stirred up a controversy over what he had the country believe was an affront to judicial independence. For a few days, there was an impression that the collegium, which recommends all appointments in the higher judiciary, had acquiesced in the government’s decision to overrule its recommendation. On the contrary, Chief Justice Lodha’s statement now makes it clear that had Mr. Subramanium not hastily withdrawn his consent, it may have reiterated its recommendation. In the final analysis, it would appear that Mr. Subramanium himself has contributed to the undermining of the judicial collegium process by denying it an opportunity to evaluate the government’s reservations and take a final call. He needs to introspect whether his accusation that the judiciary did not stand up to the executive is really valid.
The Chief Justice’s stand has had a salutary effect, with Union Minister for Law and Justice Ravi Shankar Prasad affirming the government’s commitment to an independent judiciary. The executive is quite confident that it has not undermined prescribed procedure while segregating Mr. Subramanium’s name and that it had valid reasons. However, it continues to speak anonymously through unattributed briefings to the media while seeking to clarify its position. It has been silent on the reason why it found the former Solicitor General unsuitable, and why it did not apprise the collegium about its reservations before segregating his name. In the backdrop of Mr. Subramanium alleging that he was not chosen because he was too independent to “toe the government’s line” and seeking to link his rejection with his role as amicus curiae in the Sohrabuddin encounter case, the government’s continued reluctance to speak out is not helping its case. For, while the Gopal Subramanium episode has revived the debate on the present system of judicial appointments, it has also raised the question whether the NDA government wants to revert to the 1970s practice of seeking to appoint only committed judges.