Refusing to be a “judge-in-waiting” amid what he described as a conscious move by the Narendra Modi-led NDA government to mark him as “unsuitable” for elevation as a Supreme Court judge, former Solicitor General Gopal Subramanium on Wednesday withdrew his candidature for the post, and alleged the government feared he would not toe their line.
In a nine-page letter to Chief Justice of India R M Lodha, Subramanium said this government does not respect the independence of the judiciary, complained about the judiciary’s failure to “assert its independence by respecting likes and dislikes of the Executive”, and appealed to the CJI for a “suitable introspection”.
Subramanium’s elevation was stalled following a “negative” report by the CBI — first reported by The Indian Express — questioning his propriety as SG in the 2G case and also his alleged links with former corporate lobbyist Niira Radia, whose intercepted phone conversations are under CBI scrutiny.
The government cleared the names of senior advocate Rohinton Nariman, Calcutta High Court Chief Justice Arun Mishra and Orissa High Court Chief Justice Adarsh Kumar Goel for elevation to the Supreme Court.
Calling reports in the media “carefully planted leaks” intended to make his candidature doubtful, Subramanium said the apprehension that he would not “toe the line of the government” had been “decisive in refusing to appoint” him.
Wondering why CBI would engage him as its counsel for more than two decades if it had any doubt over his acumen and integrity, he pointed out that the Law Ministry initiated an inquiry against him after May 15 “with a clear mandate to find something to describe me as unsuitable”. The election results, giving the NDA a clear majority, were declared on May 16.
In a thinly veiled censure of the Modi government, Subramanium said: “The events of past few weeks have raised serious doubts in my mind as to the ability of the Executive Government to appreciate and respect the independence, integrity and glory of the judicial institution. I do not expect this attitude to change with time.”
Justifying his role as amicus in Gujarat’s Sohrabuddin Sheikh fake encounter case in which the alleged role of then chief minister Modi and former home minister Amit Shah had come under the Supreme Court scanner, Subramanium said he was now being “targeted” for the “independence and integrity” that he had shown.
The senior advocate said he had met Modi only once when the latter was chief minister and he was the SG, and added that it was “a period the memory of which I hope will be forgotten by me with time”.
He denied he ever met Amit Shah, and said he had “no personal vengeance or grudge” against him.
Subramanium said that while reservations against his appointment as a Supreme Court judge were unjustified, he did not want his elevation to be the “subject matter of any kind of politicisation”, and that he would be “hesitant to join the courts amid such speculation”.
“I do not consider that the Executive Government is entitled to judge my character after having seen me in public and professional domain for over 34 years,” he wrote, adding that such attempts showed falling standards in constitutionalism, being encouraged by “accomodative participants”.
Subramanium referred to his telephonic conversation with Justice Lodha, saying he could not wait until the CJI returned to Delhi on June 28 after the three other names were cleared by segregation, and appointments were made outside the CJI’s knowledge and without the consent of the collegium.
He claimed such a segregation of names and appointment of three out of the four names appeared to be “against the constitutional framework” and their validity is “bound to come under the cloud”.
“I am more than willing to step out but I trust you and your colleagues will undertake suitable introspection… the court owes me, in the very least, a clear statement of confidence, although my personal character in not dependent on the outcome of such willingness.
“It is an act of closure, which a court of justice owes to its own members. By failing to do it, the court will sink into quicksand,” Subramanium said, adding he would resume his professional practice only after Justice Lodha demits office. Justice Lodha retires in September.
Subramanium also refuted allegations that he had, as SG, met with the lawyer for 2G scam accused former telecom minister A Raja in his office, in the presence of CBI officers in charge of the investigation. He clarified that he had met the CBI officers separately to get an idea whether there were adequate evidence to prosecute Raja in the case so that an “incorrect stand” is not taken in the court. He claimed he also advised then Prime Minister Manmohan Singh to allow CBI to investigate Raja’s role in the 2G scam.
On the Radia tapes controversy, Subramanium said he had no contact with Niira Radia during his tenure as a law officer between 2005 and 2011, and that he sought no favour from her over a “complimentary membership” for the swimming pool at the Taj Mahal Hotel on New Delhi’s Man Singh Road.
Subramanium told The Indian Express that he had acted in the “larger interest of the judiciary”, and that his withdrawal should send a clear message to the Executive and the Judiciary that “new ground rules are necessary when they deal with an office as high as of a Supreme Court judge”.
While Subramanium’s move averted a possible face-off between two wings of the government, the controversy has produced a test case for the judiciary, wherein a government with a powerful mandate flagged a “negative” report against a candidate recommended by the collegium for elevation as a judge.
Governments have in the past returned files to the collegium for clarifications or reconsideration of names, but the collegium has, except in one case, always stuck to its guns and “reiterated” its choices. All these names pertained to the elevation of High Court judges to the apex court.
The only occasion when the collegium decided to drop a name was in 2009, when the government raised serious objections to the elevation of then Karnataka High Court Chief Justice P D Dinakaran in the wake of allegations of land-grabbing and other “irregularities”, including amassing of wealth disproportionate to known sources of income.
The government had sought clarifications regarding Justices R M Lodha H L Dattu, A K Ganguly, V Gopala Gowda and M Y Eqbal, but the collegium had reiterated their names, following which the government had cleared the files.
Significantly, prominent leaders of this government have in the past complained about the alleged arbitrariness and opaqueness of the collegium system.
Justice Lodha had, upon taking over as CJI, assured “wider consultation” in recommending names for judgeship, and favoured more transparency in the process.
Accepting the government’s decision could have been interpreted as the collegium conceding that it had made a mistake, thereby amplifying the argument in favour of replacing the collegium system with a Judicial Appointments Commission for appointing judges to the higher judiciary.
Subramanium’s withdrawal has obviated the need for the judiciary to make a difficult choice. But it remains to be seen how it reacts to Subramanium’s call for “suitable introspection”.