EDITORIALS

Economic & Political Weekly EPW july 12, 2014 vol xlix no 28
9
T
he scales of the balance in appointments to judges of the
apex court may have shifted again. Prior to 1993 the
executive had the upper hand, with the requirement of
consulting the judiciary but not obliged to accept its views. The
Second Judges Case virtually reversed this position, and in the
Presidential Reference of 1998 set down the details of the collegium
system. The names are to be put forth by a collegium consisting
of the Chief Justice of India (CJI) and his four senior-most
colleagues. The government may return a name with objections;
but if the collegium still reiterates its choice, the appointment
must go through. The judiciary has the rst, and last, word.
The 1993 decision itself was accepted without much protest
by the political class, which was surprising since it was a major
constitutional shift achieved without amendment. Over the years
the executive has largely accepted the appointments proposed
by the Court. Where there was a difference, the judges prevailed.
The judicial branch seemed pretty much in control of appoint-
ments to its benches, which incidentally is a rarity the world
over. It helped that barring one, all appointments to the Court
since the Judges case were made from chief justices or senior
judges from the high courts; these are not so easy to impugn given
the judges long years of judicial service.
Gopal Subramanium, however, was in a different category.
He has never been a judge before; he fell under another category
envisioned in Article 124, viz, advocates. Since Independence
only a handful of judges have come from this source notably
Chief Justice S M Sikri, Justices Kuldip Singh and Santosh Hegde.
Subramanium did not therefore have the protective mantle cast
over high court judges. Second, he had been the solicitor general
for the United Progressive Alliance government handling a range
of politically sensitive cases. Third, and perhaps most important,
as amicus curiae he slammed the investigation of the Gujarat
police in the deaths of Sohrabuddin Sheikh and Tulsiram Prajapati;
this led to the special investigation team and then the Central
Bureau of Investigation (CBI) coming in. Amit Shah was arrested,
and Subramanium opposed grant of bail to him.
It has escaped no ones attention that Amit Shah is as high in the
present dispensation of political power as any one can get. Moreover
Gopal Subramanium, if appointed, would have been on the bench
for nine years and would have, seniority norms being followed,
served as CJI in the last two of them. A most unpalatable prospect
for a government which is looking at a 10-year term at the least. The
stage was therefore set for the rst clash between an entrenched
Court and an assertive prime minister fresh from electoral victory.
Narendra Modis own party has in the past repeatedly casti-
gated the CBI for playing up to and aiding the wishes of the govern-
ment in power. The same behaviour of the CBI has been on display
in the way it has gone about trying to dig up dirt and leaking
its ndings on Subramanium. The only point made by it that
deserves any consideration is whether the agencys stand in the
2G case was compromised by the solicitor general having a
meeting with CBI ofcials in the presence of Rajas lawyers; his
defence is that Raja was then a member of the government.
That the CBI goes on to invoke swimming pool memberships
and questions whether meditative practices can aid judgment
writing only illustrates how shallow its case is and how deep it
has had to ing its net. It needs also to be remembered that a
probity check would have been done by the countrys intelli-
gence gathering agencies before the Court made its nomination.
Other questions, however, remain. Was it wise for the Court to
put forth names just before the counting of votes in the general
election? Did it not realise that Gopal Subramaniums candidature
would be met with reservations, if not hostility, by a BJP-led gov-
ernment? Was it prepared to deal with a situation where his name
was returned? When the three other names were cleared and only
one was held back, would not the Court have sent out a strong
signal to the government if it had put the other appointments on
hold, either by directing that the warrants be held back or at least
indicating that these judges would not be sworn in till the Subra-
manium candidature was cleared? Subramanium too was perhaps
a trie hasty in withdrawing his name; instead of wading into the
allegations, he could have waited for the constitutional authorities
to sort out the imbroglio. It is likely that the Court would not have
stood down, and Modi may have rested content with ring a shot
across the bow. Now it looks as though the latter has won.
Will this lead to a determined push to bring in changes in the
appointment method? The collegium system has been criticised by
almost everyone but the collegium for being opaque and non-
transparent without giving even legitimate stakeholders like the
Bar a chance to scrutinise the proposed appointees. The judicial
commission under discussion contemplates members other than
the CJI and two senior judges; the law minister is on it, and the
prime minister has a say in appointing two more. The judiciary
has been wary of sharing its turf, and has resisted this proposal.
Given the recent happenings, will it dig in even more? And will
other players scent a warning in the winds that blew last month?
This government blocked an appointment without being on the
appointing body; what will happen when it is part of it?
When the Government Leans on Judges
Is the Gopal Subramanium case a harbinger of the executive asserting its power?