Of fact, procedure, and principle

Is the cost of standing up for the principle too high, or is it necessary to stand up for them regardless of the cost since it would take society to new and higher morality?

Like all things Indian, small events appear to have large implications. The curious Indian, with a few thousand years standing behind her, finds connections and controversies in everything. Questions naturally appear. For example, does the Gopal Subramanium elevation controversy have wider implications for the polity? Must we see it as telling us something about our public culture or is it just a one-day spectacle, permitting us, now that it has passed, to go back to business as usual? Is the nonchalance on the issue because of fear or because of indifference? Because legal practitioners have dominated the debates so far, we have been cautious since this is a zone where angels fear to tread. But when the demons of doubt will not go away, the issues require detailing. These concern matters of fact, of procedure, and of principle.

The process

Let us begin with the facts. The practice followed by the collegium of the higher courts, before a candidate is recommended for elevation and a panel of names is sent to the government for appointment, is as follows. The Chief Justice initiates a consultation with the legal fraternity. Speaking in confidence to senior advocates and fellow judges, to both the bar and the bench, a long list of possible candidates for elevation is prepared. Based on these recommendations the Chief Justice then invites the candidates to determine their willingness to be considered. If the candidates are willing then they are required to furnish details about themselves, such as their contributions to the law especially with respect to important cases, the extent of their legal practice, their annual income, their legal history, etc. These details are then processed by the court administration, during which time, I suppose, the court gets inputs from relevant investigating agencies about whether they have any legal proceedings against the candidate, etc. other inputs that may make them ineligible for consideration.

Based on (i) the recommendations of the legal fraternity, (ii) the willingness of the candidate, and (iii) the hard data relating to the legal practice and public standing of the individual, the file is placed before the collegium. The collegium then scrutinises the information on record and, based on the highest standards of judicial scrutiny, arrives at a decision on whom to recommend and whom to ignore, from the names before it. Not every name that comes up through this process gets the approval of the collegium. The shortlist prepared by the collegium is then sent up to the government for its approval. This I am told is the standard process that is followed. Gopal Subramanium’s case, I suppose, went through the same process.

There are many issues that need clarification now. Let us list them here. Let us begin with the issue of sequence. (i) When was the collegium’s due diligence completed? (ii) When did it send its recommended panel of names? (iii) When did the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB) give their reports which made him ineligible? (iv) Was it before the collegium considered the file, or after? (v) If before, were the intelligence reports presented to the collegium? (vi) If yes, then assuming that the reports were considered by the collegium, can they be regarded as germane to the appointment after the panel is sent to the government? (vii) If not, why were they concealed from the collegium? (viii) Does it constitute contempt by the CBI and the IB of the Supreme Court? (ix) When was the file sent to the President for his seal of approval? (x) How long did he take to grant approval? (xi) What were the reasons he gave to segregate the names into those he had approved and those that were to be kept in abeyance? (xii) Since this act of segregation has constitutional implications, did the President consult constitutional experts, as is the practice, or did he rely on his own wisdom? (xiii) If he did consult constitutional experts, who were they and what was their advice, and if he did not why did he not do so?

Fair and transparent

The principle for such empanelment was enunciated by the Supreme Court in the case of P.J. Thomas, nominee for the Central Vigilance Commission (CVC), whose candidature was rejected in 2011 when it described in detail the process to be followed in the appointment to a position of authority. Appointments to the Supreme Court, I expect, fall into this category. Here is what the judgment said — (vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee. (vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.

Complete information, including fair and adverse comments, is a necessary condition. Also fair and transparent process. I suppose the collegium, the government and the President followed these guidelines.

Separation of powers

Assuming complete information was available to the collegium, we now have to consider the contrasting positions of the collegium and the government. Based on the same facts considered by the collegium, the government is at liberty to give an alternative reading and argue for the unsuitability of a particular candidate. This is legitimate since the political lens of the government may be at variance with that of the collegium. The disagreement, at this stage, has to be on political grounds and not on facts. The procedure then requires the government to place its disagreement before the collegium which can either restate its earlier recommendation or revise it in the light of the arguments made.

This second stage is constitutionally sacrosanct since contained in it is the core principle of the separation of powers. The collegium has to deliberate on this contrary opinion of the government and decide whether, by accepting or rejecting it, the independence of the judiciary is eroded or enhanced. The decision that emerges from this review must indicate where the power of decision in the last instance, lies, with the government or with the court. Both parties must give clear reasons for their positions so that the final decision taken can educate the public on the core issue of separation of powers. The government’s reasons and the collegium’s views, as well as the facts of the matter, should be made public to serve, as the Supreme Court in the P.J. Thomas case said, the larger public interest.

We now come to the question of suitability. Was Gopal Subramanium unsuitable because of some “actions” of his, which were not kosher, i.e., meeting persons that he should not have met when he was Solicitor General, or was he unsuitable because of a “disposition,” i.e., shutting his mind out for an hour and praying as he was alleged to have done when he was investigating the Sree Padmanabhaswamy temple gold case? From leaked reports in the press it appears that both “actions” and “disposition” made him unsuitable. This is puzzling. How was he then the lead counsel of choice for both the IB and the CBI? How was he amicus curiae for the Supreme Court in several cases such as the Bachpan Bachao Andolan case, the Sohrabuddin Sheikh fake encounter case, and the Sree Padmanabhaswamy temple case. If he was good enough to be amicus curiae , why is he unsuitable now?

Basic issues for democracy

Three basic issues for our democracy emerge from this controversy. The first is the issue of public attitude. Are we prepared to let it lie, to blow over because another headline has grabbed its place or are we prepared to interrogate it further? This is not a partisan issue, of UPA versus NDA, since it perhaps points to a growing disregard for our constitutional culture. When the confidentiality of the collegium’s recommendation is treated lightly, when the intelligence reports are leaked, when the President’s confidential actions are public knowledge, we have reason to be concerned about the disregard for constitutional propriety. Will those who leaked information be punished to restore the sanctity of the process? Or are we moving toward what Paulo Friere calls the “culture of silence”?

The second issue concerns the doctrine of separation of powers. By segregating the names, did the President give primacy to the executive over the judiciary? Was this a question of political expediency trumping constitutional principles? With whom should the final decision, on who should be elevated, lie? The executive or the judicial fraternity? Since the Emergency, when it had touched its nadir, our democracy has been struggling to restore the balance between the executive and judiciary. Does the Gopal Subramanium case suggest that the pendulum has begun to swing again?

The third issue concerns Gopal Subramanium’s withdrawal of consent. By resigning he prevented the issue from developing into a constitutional face-off between the executive and the judiciary. Ronald Dworkin, the great legal and political philosopher, in Taking Rights Seriously , recommends such a face-off since he believes that only in such a situation will we be able to distinguish between just and unjust laws. We hope that the moment has not passed for the collegium to enunciate on the principle of finality. Mr. Subramanium’s withdrawal also highlights one of the knottiest problems of political philosophy. Should he have been pragmatic, and withdrawn to fight another battle, or principled, since a foundational principle was at stake? Is the cost of standing up for the principle too high, undermining other values that are also important, or is it necessary to stand up for them regardless of the cost since it would take society to new and higher morality?

Aung San Suu Kyi did not go to England to see her husband who had terminal cancer, when she was offered the choice, because she would have had to abandon the political struggle and leave the country. He passed away. She did not meet him. Yudhisthira told a little lie and won the war.

(Peter Ronald deSouza is professor at the Centre for the Study of Developing Societies. The views expressed are personal.)