Gopal Subramaniam controversy: What CJI did NOT say

File Photo of Chief Justice of India RM Lodha. (PTI Photo)

Kartikeya Tanna : Niti Central :2 Jul 2014

The Chief Justice of India Justice RM Lodha spoke on the Gopal Subramaniam elevation controversy that carried on for a couple of days last week. In addition to expressing disappointment with Subramaniam going public with his grievances, he also said that Subramaniam’s segregation was unilaterally done by the Modi Government without his knowledge and consent.

It is crucial to read the official sources here. Many channels and journalists have confused CJI’s statement as being critical of Modi Government’s disapproval and rejection of Gopal Subramaniam for elevation as the Judge of the Supreme Court. That is plainly wrong. The PTI tweet embedded above reproduces the exact words of the CJI.

This clearly means that CJI’s issue with the Modi Government, if at all there is one, is on aprocedural matter, i.e., that Modi Government separated Gopal Subramaniam’s file from the files of three other persons recommended by the SC collegiums for elevation. The CJI has not criticised Modi Government seeking CBI and IB reports on Gopal Subramaniam nor has he criticised the Government indicating its objections.

Many Constitutional experts have opined that Government of the day cannot segregate one file from the other. However, this requirement that the executive cannot segregate one file from the other deserves a debate. There is absolutely no logical reason why appointment of others recommended by the Supreme Court in the same list be held back due to some clarifications being sought for one of them. Hopefully, a new Bill reforming this collegiums system shall do away with such requirements.

It is crucial to remember here that, in 2009, when the then collegium recommended 2 names – Justice Swatanter Kumar and Justice CK Prasad – the two names were, indeed, considered separately. While Justice Kumar’s name got cleared and he was sworn-in as a judge soon after his name was recommended, Justice Prasad’s elevation got stuck since the President received a few complaints about him.

Here is a detailed report on that. Therefore, it isn’t as if such segregation has not happened earlier. The question that remains to be resolved between the collegiums and the Modi Government is when such segregation can happen.

It is vital to state here that the current collegium system has not provided full confidence in the manner in which names are recommended and elevations done. An incident that occurred last year is worth recollecting.

Being overlooked for elevation yet again, the Chief Justice of the Gujarat High Court wrote a letter to the President and PM stating that he was overlooked primarily because he had opposed ex-CJI Altamas Kabir’s sister’s elevation as an High Court Judge when he was in the Calcutta High Court. He also requested that he be shown material which led CJI Kabir to take a decision regarding his competence and character.

There have been other such illustrations which have dented confidence in the manner in which appointments are made to the highest court of the land.

It is also vital to point out former CJI P Sathasivam’s views on the collegium system. Last year, when the Central Government rushed the Bill creating a Judicial Appointments Commission, Justice Sathasivam categorically stated that the Government and its agencies have a say in the system and their views are also taken into consideration for appointment of judges.

To quote from the Economic Times report:

“Justice Sathasivam said that no name is finalised until it gets clearance from the Law Minister, the Prime Minister and the President and in the whole mechanism, inputs from intelligence bureau, respective High Courts and eminent people like sons of the soil, are taken into consideration.”

That the system requires an overhaul is beyond any doubt. However, for Modi Government’s critics to seek vindication on their criticism from what the CJI commented on the procedure is plain dishonest. Indeed, Justice Lodha could not have criticised the Modi Government merely for its views and objections to Gopal Subramaniam’s elevation given the fact that the spirit of the collegiums system that Justice Sathasivam dwelled upon last year entitles it to present its views.

Postscript: It is unfortunate that the Chief Justice of India decided to go public with his comment that the Modi Government handled Gopal Subramaniam’s elevation in a “casual manner”. It would have been proper if he had expressed his reservations to the Modi Government in private. The collegium system is not without its share of criticism in the manner in which some appointments are made and some not made. This is an extremely sensitive system which requires the Judiciary and Executive to place confidence in one another without airing views in public. Wouldn’t it cause discomfort to the CJI and the collegium if, for example, Modi Government were to go public with gratuitous comments on the manner in which the elevation of the Chief Justice of the Gujarat High Court has yet not happened because, as he himself says in his letter to the then PM, he had opposed former CJI’s sister’s appointment to the Calcutta HC Bench when he was a member of that collegium? By airing his views in public, the CJI has ill-advisedly made the same error that Subramaniam did.

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