The chief justice of India has expressed strong disapproval of the government’s move to “unilaterally” segregate Gopal Subramanium’s file from the list of candidates the Supreme Court collegium had nominated to the bench. He has spoken out against the government acting as the final arbiter on judicial appointments without his “knowledge or consent” and highlighted the primacy of the collegium as well as the “non-negotiable” independence of the judiciary. “I will be the first to leave this chair if it is compromised,” he said. Those are strong words and they go a long way in reassuring those who have watched the building confrontation in recent days between an executive emboldened by a decisive mandate and the judiciary with growing apprehension. Justice R.M. Lodha’s intervention holds out the assurance that a hard-won and delicate institutional balance will be safeguarded. It also demands an answer from the government.
Subramanium may have communicated his reluctance to be appointed as a Supreme Court judge, but the CJI’s comments now leave the executive with no option but to defend its handling of the matter. Unless the government offers a persuasive explanation of why it chose to segregate Subramanium’s file from that of the other candidates, its motives in disturbing the settled norms of a constitutionally mandated, consultative process of appointments will remain open to question. Responding to the CJI, Law Minister Ravi Shankar Prasad offered a token “no comment” and expressed his government’s “highest regard” for the judiciary. If it indeed holds the judiciary in high esteem, the government will surely deem it necessary to respond substantively to the CJI’s charge of “not proper” conduct.
This episode should also prompt the Supreme Court collegium to reconsider its approach to judicial appointments. If the government is now able to tinker with the nomination of candidates, it is on account of the secretive nature of the selection process itself. Down the years, there has been little, if any, serious evaluation of the candidates the collegium has recommended to higher courts. The independence of the judiciary cannot be fortified by simply insulating the collegium’s candidates from the executive. The individuals so recommended must inspire confidence through their exceptional integrity and merit. If the judicial class has objected to the institution of a judicial appointments commission — which it sees as an encroachment by the executive — the collegium must respond by making the current process more transparent.