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 sensitive cases, including the Bombay bomb blast case of 1993, one relating to Dawood Ibrahim’s nexus with certain gutkha manufacturers, the demolition of the disputed site in Ayodhya and so on. And after he had resigned from his post as solicitor-general on grounds of principle, his services were specifically sought by the CBI. Further, if these were real doubts that the executive had, then it would have written to the collegium with the necessary confidentiality. It did not. It only leaked tidbits to justify a confrontation with the judiciary in a matter where the law is very clear.
The only ones who could have taken up cudgels on Subramanium’s behalf at this time is the collegium. It is yet to respond. Why this unseemly delay on its part? It is a settled question of law that the Constitution is what the judges of the SC say it is. Will they or won’t they defend him? This is a question that requires an answer.
More so in view of the institutional independence of the judiciary, reiterated by the SC in two concurring judgments that judges know more than the executive about who is suitable to be a SC judge. There are further issues of finer legality or propriety involved. Some respected members of the Bar opine that when the collegium had sent a composite list of four, the executive could not have segregated the same without the prior consent of the collegium. Was this done? If so, was it over a telephone call from the executive?
A famous American judge, Oliver Wendell Holmes Jr, once said that the only qualities required of a judge were honesty and courage, and no other qualities, because all the issues of law and facts of the case would be supplied by the counsel for the parties and where it was felt to be required, by the amicus curiae to the case. Subramanium is such a man, whom I can say, with all honesty and conscience, is one who listens to all, in his fierce independent-minded pursuit of the truth of the case so that he may be able to assist the court in the best possible manner, but who, in the end, only acted according to his conscience. This is why he was raised directly by the SC in 1993 as a 35-year-old as a senior advocate. His subsequent assistance to the judiciary was valued and respected by the Bar and the bench, which is why he was invited to join the bench in 2011. He declined this invitation on the highest nuances of propriety, because his relative was an SC judge at the time. The man had proved by the highest account that even as a lawyer he respected the institution of the judiciary, perhaps even more than the judiciary itself. Now, after he had honoured this latest invitation, after he had accorded his consent because his relative was no more a member of the noblest office, why is there such a deafening silence from the judiciary?
It is sad that the Central government is not showing respect for the institutional independence of the judiciary, a basic feature of the Constitution. It is also surprising that the executive should try to encroach upon the institutional independence of the judiciary at such an early stage, when there are so many other problems to solve. Indira Gandhi too made a vain assault on the judiciary by packing it with men she felt were more compliant and amenable to persuasion in a fit of hubris while basking in the afterglow of popular approval for her victory in the 1971 War.
It is necessary to appreciate the significance of judicial independence. The executive government is the highest litigant in the country, like in all other constitutional liberal democracies. When the executive is unwilling or unable to do justice, the common man can only throw himself at the mercy of the court, and the judiciary is expected to deliver justice without fear or favour, affection or ill-will — in short, with independence, while always appearing independent. The substance of justice will be spoiled with the slightest appearance of cohabitation with the executive. This is the bedrock of our judicial system: “It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” [ 1 KB 256]. The appearance of justice is important to the substance of justice and its absence negates the second.
We, the people, who gave unto ourselves our Constitution, await the legal guardians of the Constitution to discharge their constitutional duty. Will the SC be able to take on the executive in this encounter that has been dared by the executive? We are with the SC in its attempt to uphold its institutional independence. We expect the judges of the SC to be men and women of the noblest character, who will respect their own judgement of the man they invited to sit with themselves.
The writer is a former judge of the Bombay High Court