Gopal Subramanium case: Why SC collegium system is past its sell-by date

The decision of Gopal Subramanium to rule himself out for appointment as a Supreme Court judge is the right one. Not just because the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB), both “caged parrots” of the government in power, had given adverse reports on his suitability for this high office, but because the current system of judges deciding their own appointments through a collegium of senior judges is simply not right. The executive cannot be completely shut out of the appointment process. While it may be true that the NDA government has not been favourably disposed towards Subramanium for its own unstated reasons, Subramanium has not exactly covered himself with glory by alleging that he had been blocked for collateral purposes. The Indian Express quotes him as saying: “I’m fully conscious that my independence as a lawyer is causing apprehensions that I will not toe the government line. This factor has been decisive in (the government) refusing to appoint me.” He also said that the negative reports from the CBI and IB were only “half-truths”. [caption id=“attachment_1585939” align=“alignleft” width=“380”]  Former Solicitor General Gopal Subramanian. Image courtesy ibnlive[/caption] Subramanium’s allegation cannot be given too much credence since it comes after he has been blocked. Sikkim Chief Justice PD Dinakaran, who was blocked from elevation after the Supreme Court collegium nominated him, was shunted off to the Sikkim High Court when the government hesitated to toe the collegium’s line. Dinakaran’s bad karma followed him there and he had to resign when threatened with impeachment for dubious dealings. He said: “I am the victim of the whole system—political, executive—and also partly the legal system. I expected the rule of law would be available to me. Rule of law is not maintained here. Process of natural justice has been thrown into the air.” This is not to equate Dinakaran with Subramanium, but to make the point that one can make any allegation on someone else’s motives when nothing can be proven. As things stand, in the absence of a sensible system for appointing judges to the Supreme Court, only Subramanium is out. The other appointments suggested by the collegium—senior advocate Rohinton Nariman, Calcutta High Court Chief Justice Arun Mishra and Orissa High Court Chief Justice Adarsh Kumar Goel—go through. Any selection system that excludes the executive completely from the process of appointment of judges falls foul of the basic democratic principle of institutional checks and balances. Governments are accountable to the people, Parliament and the Constitution; judges can junk laws passed by Parliament if they violate the Constitution; judges can be impeached by Parliament. Why should the process of appointing judges thus be purely their business? In the US, the President nominates judges for appointment to the Supreme Court, but Congress has to clear those appointments. The process clearly has a political loop through which it travels. Parliament’s standing committee on law and justice, which vetted the government’s Judicial Appointments Commission (JAC) proposal some time ago, had this to say about the collegium system: “The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the executive entirely in the collaborative and consultative exercise for appointment of judges to a bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various high courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary.” It is also pertinent to point out that the current collegium system has managed to produce judges of doubtful integrity, with one judge (PD Dinakaran) having to be rejected following serious allegations of financial impropriety. Another judge (Justice Soumitra Sen) came close to be being impeached by Parliament, but he chose to resign to avoid ignominy. The Chief Justice who headed the collegium  that chose Dinakaran, KG Balakrishnan, had himself come under adverse scrutiny for various reasons. (Read here and here ) Faith in the collegium system was dented seriously after the Dinakaran episode in 2009, which created an uproar in the legal fraternity. Senior advocate Fali S Nariman had said at that time: “The gentleman (Justice Dinakaran) should have been dropped like a hot cake (sic) the moment serious allegations supported by documentary evidence surfaced against him. I have no faith in the collegium system.” When the proposed appointment stirred a hornets’ nest, Chief Justice Balakrishnan happily tossed the decision to the government, saying the government could overturn the collegium’s decision if it found reason to. This suggests that, at one level, the blocking of Subramanium by the NDA government is not without legal basis. But, clearly, judicial appointments are too important to be left to judicial whims or wayward government preferences. We clearly need a statutory Judicial Appointments Commission to be passed by parliament as soon as possible. A Bill to create one was approved by the UPA last December on the basis of a report of the Standing Committee on Law and Justice, which had made suggestions on how the JAC should be constituted. It called for the insertion of a new article 124A in the Constitution to define who will comprise the JAC, and a 124B to define its role and job. The Bill, cleared by the UPA cabinet in December 2013, called for a JAC comprising three Supreme Court Justice, the Union law minister, the law secretary as convener, and two “eminent persons” chosen by yet another committee comprising the prime minister, the leader of the opposition, and the Chief Justice of India, said a report in The Hindu. It’s a pity the UPA did not prioritise the bill. Maybe, the NDA now should. It may not need too many changes, and since the UPA okayed it, the Bill should have a smooth passage in the Rajya Sabha too. After the Gopal Subramanium fiasco, JAC is the need of the hour. The collegium system is outdated and past its sell-by date.