‘Past few weeks have raised serious doubts as to the ability of the executive to respect the independence of the judiciary’

Edited excerpts from a letter from lawyer Gopal Subramanium to the chief justice of India, June 25.

Updated: June 26, 2014 12:18:15 am
While harmony between different organs of the state is a desirable feature, the functionality of each organ is meant to have different, defining characteristics. While harmony between different organs of the state is a desirable feature, the functionality of each organ is meant to have different, defining characteristics.

Over the past two weeks, quite a few media reports have voiced the Union government’s reservations about my appointment. These reports speak of alleged adverse reports against me by the Intelligence Bureau and the CBI. I must say that these media reports are malicious insinuations based on half-truths, and appear to be a result of carefully planted leaks aimed at generating doubts in the minds of the collegium and of the public as to the suitability and propriety of appointing me as a judge of the Supreme Court. l am fully conscious that my independence as a lawyer is causing apprehensions that I will not toe the line of the government. This factor has been decisive in refusing to appoint me. I may add that on 15th May 2014, the IB had given me a clean chit.

The IB has sought my advice on sensitive matters of national security for over 25 years (including during the previous NDA regime). In fact, the then Deputy Prime Minister, L.K. Advani, used to treat me with much courtesy. The CBI has also consulted me on numerous occasions (before, during, and after my tenure as law officer) and I continued to have been its lead lawyer even after my resignation from the post of solicitor general. One wonders why the CBI would repeatedly engage me as lead counsel over the past 20 years if there was any doubt. I have reliably learnt that the ministry of law and justice initiated an inquiry after May 15, 2014, with a clear mandate to find something to describe me as unsuitable.

Further, media reports have alleged that I had convened a meeting between CBI officers and the counsel for a person who was a suspect at the time in the 2G case. This is factually incorrect. CBI officers never met with T.R. Andhyarujina (senior advocate) at my home or office in connection with the 2G case, or even otherwise. I must add that I had asked officers of the CBI, within the course of a briefing conference in the matter, to tell me whether their investigation had revealed anything against the former telecom minister, so that an incorrect stand might not be taken before the Court. This meeting was conducted separately. I may add that I had advised the then prime minister, subsequently, to allow an investigation by the CBI into the conduct of the then minister, notwithstanding the disposal of the writ petition relating to arbitrary allotments. The prime minister accepted my advice. That I was motivated by the highest sense of assisting the Supreme Court in the matter may be seen from the fact that I had written to the CBI and the then Union minister for law and justice about this and kept them apprised of the happenings in the matter.

I feel that I must also address here another issue being raised by the media as to why the government considers me unsuitable for the post of judge. As you are aware, I assisted the Supreme Court between 2007 and 2011 as amicus curiae in the matters of Rubabbuddin Sheikh vs State Of Gujarat and Narmada Bai vs State Of Gujarat. Both were habeas corpus petitions, the background to which was widely reported in the press over an extended period of time. My actions as amicus in the matter were greatly appreciated by the Supreme Court, and this was possible only because of the standards of integrity that I maintain in professional life and my undying respect for the court. It appears that I am now being targeted because of this very independence and integrity.

As far as the Rubabbuddin Sheikh case is concerned, I would like you to know the correct facts. I was sitting in court waiting for a matter, which was lower down in the list. The Bench consisted of Justices Tarun Chatterjee and Dalveer Bhandari. It was Justice Dalveer Bhandari who along with Justice Tarun Chatterjee requested me to appear as amicus curiae in the matter. I readily accepted the request, which is consistent with the duties of the office of a law officer. I found that the petition contained a reference to a letter, which had been written by the petitioner to the chief justice of India, sometime ago. I went to the registry, found out the record and found that there was also a reply from the Gujarat Police, which had certain annexures that indicated the commission of a murder. Therefore, I recommended to the court, in a sealed cover, that a notice might be issued to the state of Gujarat to explain the disappearance of the said Sohrabuddin. In the first instance, I may add that I also insisted upon the production of Kauserbi by way of an ad-interim writ of habeas corpus at which stage the learned counsel appearing for the state of Gujarat conceded in the court that the said Kauserbi had also been killed and cremated! Even then, as a mark of respect for the law and order machinery within the state of Gujarat, I requested a special investigating team, headed by Geeta Johri, to undertake the investigation into the case. It was during the investigation of Geeta Johri that a critical eyewitness, one Tulsiram Prajapati, was mysteriously liquidated. Then I pleaded for the transfer of the case to the CBI. Even after the CBI had taken over the case, I realised that having regard to various political factors, the investigation may neither be fair nor truthful. I had brought out many anomalies, even of the CBI report, to the attention of the Supreme Court on many occasions. I may add that I have never met Amit Shah and I have only seen his photographs in the newspapers recently. I may also add that, in the course of the hearing of the bail application of Amit Shah, I had said that his liberty should not be infringed and he may be allowed to be enlarged on bail but remain outside the state of Gujarat. This is only to indicate that I had no personal vengeance or any kind of grudge against the said Amit Shah.

I may add that I have never met Shri Narendra Modi in my life, except once, that too when I was the solicitor general of India.

While the expression of reservations by certain quarters are unjustified, I would be hesitant to join the court amidst such speculation. In fact, the events of the 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 improve with time.

I am, however, unable to dispel the sense of unease that the judiciary has failed to assert its independence by respecting likes and dislikes of the executive. While harmony between different organs of the state is a desirable feature, the functionality of each organ is meant to have different, defining characteristics. I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. I certainly protest against a very carefully orchestrated drama to overcome a recommendation. I, however, fully forgive all those involved.

Under the circumstances, I withdraw my consent to be appointed a judge of the Supreme Court and request you to proceed on that basis, so that I may resume my position at the Bar, from where, I now feel, I will be able to be better assist the institution than from within. I request you to communicate the same to the executive government. However, I intend to repudiate these outrageous allegations (inspired, as I came to know, by constituents of high authority). The court owes me, in the very least, a clear statement of confidence although my personal character is not dependant 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.

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