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Scuttling inconvenient judicial appointments: The BJP way

Written by Prashant Bhushan

Every trick in the trade will be used to compromise the independence of 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 that of Subramaniam had been recommended for appointment to the Supreme Court by the 5 member collegium headed by Chief Justice Lodha. Subramaniam had been a former Solicitor General and had represented most important institutions in the country including the CBI in many cases and had acquitted himself with great distinction.

Subramaniam 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 which also came to involve the fake encounters of his wife Kauser Bi and Tulsiram Prajapati. The CBI charged Modi’s right hand man Amit Shah along with a number of Gujarat police officers for that encounter. It was Subramaniam’s role in this case which must have made him persona non grata with Modi and his men.

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. 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. These allegations were then deliberately leaked by the government to prepare the ground for segregating his name from the other 3 recommendations.

As the smear campaign through planted leaks continued, Subramaniam, getting the impression that this segregation had happened with the CJI’s consent wrote to the CJI withdrawing his consent.

The conversations in the Radia tapes in fact show Subramaniam in a favourable light.  Referring to Rajas 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 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.

The attempt to undermine the independence of the judiciary originated in 1973. Mrs. Gandhi then told her law minister that only those judges who are committed to the ideology of the government should be appointed. 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 appointed judges who had proximity to the government.

Finally in 1993, the Supreme Court wrested the control in the matter of judicial appointments from the executive. The words “in consultation with the Chief Justice” was interpreted to mean, “with the consent of the Chief Justice”. In 1998, the meaning of Chief Justice was interpreted as, a collegium of Chief Justice plus 4 senior judges of the Court.

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. However, neither the government nor the judiciary was interested in creating an independent full time body as exists in UK to select judicial appointees. A national judicial commission Bill of 2013 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 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 in the appointments.

There is little doubt that the BJP Government would try to revive a similar proposal soon. They are also not likely to support a full time independent body for judicial 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 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.


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