Scuttling inconvenient judicial appointments: The BJP way

By Prashant Bhushan

            Every trick in the trade will be used to manage the judiciary. That is the signal that one gets from the manner in which Gopal Subramaniam’s appointment was scuttled by the Modi government. Consider the facts: 4 names including those of Gopal Subramaniam (along with another former Solicitor General, Rohinton Nariman, and two High Court Chief Justices, Adarsh Goel and Arun Mishra), had been unanimously recommended for appointment to the Supreme Court in early May by the 5 member collegium headed by Chief Justice Lodha. Subramaniam had been a former Solicitor General in the UPA government who had resigned because of his differences with the government in the handling of the 2G case. Subramaniam had represented most important institutions in the country including the CBI in many cases and had acquitted himself with great distinction. He had also been appointed as Amicus by the court in many cases in which he had invested considerable amounts of his time with great dedication. One of such cases was the Sohrabuddin fake encounter case[1] which also came to involve the fake encounters of his wife Kauser Bi and Tulsiram Prajapati, the unfortunate witness to these fake encounters who was also done away with. The CBI charged Modi’s right hand man Amit Shah along with a number of Gujarat police officers for that encounter. Shah stayed in jail for several months in that case. When the Supreme Court eventually granted him bail, Subramaniam persuaded the court to order that he would not be allowed within Gujarat. It was Subramaniam’s role in this case which must have made him persona non grata with Modi and his men.

These recommendations for appointment made in the dying days of the UPA regime, were not processed by that government which left them for the succeeding government. The Modi government lost no time in asking the CBI and the IB to dig up anything against Subramaniam which could be used to scuttle his appointment. The IB, ever willing to do the bidding of their political masters, was happy to oblige. The IB chief had been given an extension by the Modi government, and several senior IB officials had also been indicted in the series of fake encounters of Gujarat.

One of the gems that they came up with was that Subramaniam has strange religious practices! Then they discovered his name in the Radia tapes to suggest that he had accepted a complimentary membership of the Taj swimming pool from Radia. The other thing they mentioned was that in the 2G case, Subramaniam in a meeting with CBI officials, had also met a lawyer of Raja.[2] These allegations were then deliberately leaked to selected media outfits by the government to prepare the ground for segregating his name from the other 3 recommendations. Though the government could send back Subramaniam’s recommendation for reconsideration to the collegium, the government was planning to just sit on his recommendation, while segregating and clearing the rest. If the government returned it for reconsideration, the Collegium could reiterate the recommendation and the government would then have no option but to appoint him.

As the smear campaign through planted leaks in the media continued, Subramaniam, getting the impression that this segregation had happened with the CJI’s consent, on 25^th June, wrote a nine page letter to the CJI withdrawing his consent.[3] He then gave interviews to various media organisations, refuting the charges and innuendos leaked and planted in the media against him.

The conversations in the Radia tapes in fact show Subramaniam in a favourable light.  Referring to Raja’s  attempt to participate in the scam, Radia says “I am not sure that he (Subramaniam) will agree to what they say. He is an upright person. I think Raja will be trying to get the AG (Vahanvati)”. Subramaniam pointed out that he had never taken a complimentary membership of the Taj swimming pool, as suggested in the planted leaks by the government. So far as meeting Raja’s lawyer (before he was chargesheeted) in the presence of CBI officials, apart from innuendos there was nothing to suggest that he was trying to do anything improper.

The CJI Justice Lodha, felt compelled to publicly speak on this matter on the 1^st of July, when he disclosed that the segregation of Subramaniam’s name from the rest was improper on the part of the government and did not have his consent. He said that he would not allow the independence of the Judiciary to be compromised, but he was now helpless in this, since Subramaniam had withdrawn his consent.[4]

This entire episode has revealed the extent to which the BJP government would be willing to go to use every trick in the trade to have convenient judges and avoid inconvenient ones: in a word, to try and subvert the independence of the Judiciary. The attempt to undermine the independence of the judiciary originated in 1973, after the Kesavananda Bharti[5] judgement (which struck down some constitutional amendments by saying that the basic structure of the Constitution could not be amended). Mrs. Gandhi then told her law minister Kumaramangalam that only those judges who are committed to the ideology of the government should be appointed. That began the process of supersession of Judges (for appointment of Chief Justices). At that time, judges were appointed by the government in “consultation” with the Chief Justice of India as provided by the Constitution. The government then said that it was not bound by the advice of the Chief Justice. Successive Congress governments thereafter, especially during the tenure of Law Minister H.R. Bharadwaj, appointed judges who had proximity to the government. The saying, that in order to become a judge, it was not important to know the law, but more important to know the law Minister, became the prevailing wisdom. The subversion of the independence of the judiciary by the appointment of convenient judges became a major issue, especially with increasing corruption within the executive.

The issue of the manner of appointment of judges was first raised in S.P. Gupta’s case[6] in 1981. The question was whether the government or the Chief Justice should have primacy in the matter of appointment of judges, especially because independence of the judiciary had been declared a basic feature of the Constitution. In that case, the majority held that primacy in judicial appointments was with the government and it could disregard the opinion of the Chief Justice in the matter of appointments and transfers of judges and Chief Justices. But as this led to more brazenly partisan appointments, the issue was referred to a larger bench for reconsideration. Finally in 1993, the view in S.P. Gupta’s case was reversed by an innovative judgement in the Supreme Court Advocate on records case[7], which wrested the control in the matter of judicial appointments from the executive and vested it with the judiciary. The words “in consultation with the Chief Justice” was interpreted to mean, “with the consent of the Chief Justice”. The meaning of Chief Justice was interpreted as, a collegium of Chief Justice plus 3 senior judges of the Court. In fact, a new elaborate procedure was laid out by the court for appointment of judges, in which the role of the government was reduced to returning a name recommended by the collegium for reconsideration. If the collegium reiterated its recommendation, the President would have no option but to go through with the appointment. High Court appointments would also go through a similar procedure, except that the recommendations there would originate from the collegium of the High Courts.

In 1998, the Supreme Court further tweaked its judgement of 1993 in a Presidential Reference on this issue[8]. The collegium was widened to 5 judges. Consultation with other judges in the court who came from the same High Court as the proposed nominee was also provided. But the control over the appointments continued to vest with the Judiciary.

This system of appointment of judges by the judiciary did lead to the depoliticisation of the judiciary to a large extent and did substantially improve its independence. But the process of appointments was still shrouded in secrecy and keeping the control over appointments with sitting judges who had little time from their judicial work, coupled with the lack of transparency in such appointments led to nepotism and arbitrary appointments. No criterion for selection was laid down nor any system was devised to evaluate various candidates in the zone of consideration on any criteria. No system of inviting any applications or nominations was devised either. Thus the quality of appointments did not substantially improve even in this system. The appointments of Justice Soumitra Sen and Justice P.D. Dinakaran who had to resign facing impeachment, were also products of this judiciary driven system of appointments.

All this led to the political establishment crying foul and seeking a greater share of the Judicial appointments pie. There were also serious voices like that of Justice Krishna Iyer who called this an incestuous system and a snatching of appointments by abuse of judicial power.[9] Even Justice J.S.Verma, the author of the original judgement came to say that he did not anticipate that his judgement would lead to such poor appointments by the judiciary.[10]

The Committee on Judicial Accountability[11] (a voluntary body of Senior Lawyers and retired judges) proposed a bill for the Constitution of a full time and independent body called the Judicial Appointments commission for the selection of judges to the High Courts and the Supreme Court. It was proposed that such a body could be constituted from among retired judges or other eminent persons who are selected in the following manner: The Chairman to be selected by the collegium of all judges of the Supreme Court. A second member by the collegium of all Chief Justices of the High Courts. A third member by the Union Cabinet. A fourth by collegium of the leaders of Opposition of the two houses of Parliament along with the Speaker of the Lok Sabha. A fifth by a collegium of the CEC, the CAG and the CVC. Each of these members of the Judicial appointments commission would have a tenure of 5 years and would thus be independent of the government as well as of the sitting judiciary. This body would be mandated to function transparently and would have to publish the persons shortlisted for appointment for the information and comments of the people, before the final selection. Being a full time body, it would lay down the criteria for selection and would be mandated to go about its task in a structured and rational manner.

However, neither the government nor the judiciary were interested in creating an independent full time body as exists in UK to select judicial appointees. A national judicial commission Bill of 2013[12] was eventually introduced by the UPA Government, which sought to create an appointments commission in which the appointments pie was sought to be divided almost equally between the judiciary and the government. The proposed commission was supposed to have the three senior most judges of the Supreme Court along with the law Minister and two eminent persons nominated by a committee consisting of the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India. Thus the commission was still conceived as largely an ex-officio body of people who would have little time to devote to appointments and it did not lay down any standards of transparency either in the appointments. This bill too ran into a lot of criticism from various quarters, particularly from Judges and the legal community. It was therefore not taken further and has now lapsed with the dissolution of parliament. There is little doubt that the BJP Government would try to revive that or a similar proposal soon. They are as unlikely to cede the power of judicial appointments to the judiciary alone and are not likely to support a full time independent body for such appointments. Till that happens however, the BJP is likely to continue using the technique of just sitting on inconvenient recommendations sent by the collegium while using its dirty tricks department and hatchet agencies like the IB to defame the nominee and force him to withdraw. There is little doubt that the BJP, like the Congress also wants a committed judiciary.

—————–