For many years, especially in the UPA’s second term, perceptions of a weak political executive had gained ground. They drew upon the reality of a government increasingly preoccupied with its internal contradictions, one in which political authority was divided at the topmost level.
One of the most disquieting effects of this phenomenon could be seen in the imbalances and distortions it introduced in the institutional equations that undergird our constitutional democracy — most notably in the relationship between the executive and the judiciary. Here, it often seemed that a waning executive had set the stage for judicial overreach.
Now, a new government has taken charge with a decisive mandate, and the story has changed. Now, a strong executive will be watched for the delicacy and restraint with which it addresses other institutions. In this context, the way in which the Narendra Modi government has handled the appointment of lawyer Gopal Subramanium to the Supreme Court is a troubling moment between the executive and the judiciary.
The executive has a say in judicial appointments but the government’s conduct so far in l’affaire Subramanium — it forwarded three of the four names recommended by the SC collegium, withholding Subramanium’s candidature — has touched off questions and concerns. As a former CJI has observed, the government should have sent the entire file back to the collegium, placing its views on the record on all candidates, including the former solicitor general.
The Constitution outlines a process of “consultation” between the executive and the judiciary in the appointment of judges to the SC. The court itself has made it clear that the collegium has “primacy” in the appointment process. In fact, in the Second Judges case (1993), the court took the view that “consultation” with the chief justice on SC appointments should be understood as requiring his “concurrence” or “consent”.
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By separating Subramanium’s file from the other nominees’, the government has not only stripped the collegium of its agency to seriously reconsider his appointment but also opened up the decision-making process to irresponsible speculation. While public scrutiny of appointments is necessary, a flurry of allegations regarding the nominee’s independence surely cannot augur well for the health of executive-judiciary relations.
Subramanium’s anguished letter, raising questions about the judiciary’s independence and making allegations of executive partisanship, is in the public domain. But the law ministry is yet to offer a convincing explanation of why it denied the SC’s choice. It must do so, especially as it readies to deliberate a judicial appointments commission that enhances its power in Parliament.