There is plausibly, even hopefully, an inter-institutional confrontation in the offing, between the executive, the most powerful branch of government in the world’s largest constitutional democracy, and the judiciary, the weakest and “least dangerous branch of government”, as described by Alexander Hamilton. This is over the decision of the Supreme Court collegium recommending the elevation of Gopal Subramanium, a distinguished senior advocate, and the purported reservations of the present executive.
First, the facts. In early May, it was decided by a collegium of judges of the SC that two judges of high courts and two distinguished members of the SC Bar, Gopal Subramanium and Rohinton Nariman, who had both served as solicitors-general of India and resigned from these distinguished offices for different reasons of principle, had been recommended for elevation
as judges of the SC. Both are respected by the Bar for their finicky, even on occasion prickly, independence, the precise hallmark of a judge of the SC or, for that matter, any court in a constitutional liberal democracy. The only formality that remained was the ritual inquiry report from the Intelligence Bureau, as they were new entrants to the highest judicial service; there being no need for any such reports from the executive for those who already hold constitutional office. This is the law of the land, particularly in the aftermath of the ruling
in the landmark judges’ case by a large bench of the SC [AIR 1994 SC 268] and reiterated by an even larger bench [AIR 1999 SC 1] that every candidate, whether a serving high court judge or a distinguished member from the SC Bar, recommended by the collegium has always been eventually appointed by the executive. The simple rationale is that judges of the highest court have better expertise in judging who is suitable to serve alongside themselves than the executive for, after all, the judges know more about law and justice than any member of the executive. Another fact that has gone unreported is that Subramanium, if appointed, would have had about 14 months as the chief justice of India.
The Central government, through intentional innuendoes leaked/ planted via the media, made known that there were reservations about Subramanium because of his purported lack of integrity. It was also risibly argued that this was based on certain CBI reports. But even after he allegedly made CBI officers meet the counsel for A. Raja, the then telecom minister and at the time a suspect in the CBI case, the CBI had engaged Subramanium’s services in several continued…