CJI Lodha's war cry: Apex Court-Modi sarkar face off over Subramanium

In what could well be the biggest embarrassment for the Bharatiya Janata Party government until now, the Chief Justice of India RM Lodha has said the government’s move to scuttle the candidature of Gopal Subramanium for appointment as a Supreme Court judge was “not proper”. [caption id=“attachment_1476565” align=“alignleft” width=“380”]  Justice RM Lodha in this file photo. AFP[/caption] Justice Lodha was speaking at a farewell ceremony organised for Justice BS Chauhan who retired on Tuesday, when he finally broke his silence on the issue. “Segregation, unilaterally done by the executive without my knowledge and concurrence, was not proper. This is very, very unfortunate,” Justice Lodha said, according to a report in The Economic Times. His strong words appear to be setting up a judiciary versus executive faceoff. He said he would not allow the judiciary’s independence to be compromised. “I promise 1.2 billion people of India that independence of judiciary will not be compromised,” he said adding “I will be the first person to leave this chair if judiciary’s independence is compromised.” He said the independence of the judiciary was something he had protected for 20 years. The comments about the judiciary’s independence were a reference to Subramanium’s letter in which in which he had accused the Centre of slighting the judiciary, but Justice Lodha had more to say about the Union government. “I fail to understand how the appointment to a high constitutional position has been dealt with (by the government) in a casual manner,” he said. Lodha’s unhappiness is likely compounded by his personal regard for Subramanium. On his resignation as solicitor general, Lodha wrote to him ,“It was a sad thing to learn that you have resigned from the position of Solicitor General of India. Not only that in every single case –in which you represent the Central Government and its functionaries – was ably conducted by you but it also reflected your high character, sweet manners and single minded application.” Union Law Minister Ravi Shankar Prasad refused to comment on Justice Lodha’s remarks, but they are significant as the first chastising of the NDA government by a judiciary that has not shied away from rebuking the UPA government in the past, including on the coal block allocations. More vacancies for SC judges are to open up during coming months, and each will no doubt test the relationship between the judiciary and the new political dispensation in the executive. The collegium-based system of appointments of judges, through which the executive is more or less kept out of the process of appointment, had already been challenged by the UPA government, which sought to amend the law. Recent reports suggest that NDA will follow its lead. According to the Indian Express, “The NDA government has decided to resume consultations for setting up of a National Judicial Commission that will replace the collegium system of appointments to the Supreme Court and High Courts, giving the executive a say in the matter.” Under the existing system, the executive can only send a name back for reconsideration – had Subramanium not withdrawn and had the collegium persisted with his candidature, the NDA government’s red-flagging would have been only worth that much. The segregation of Gopal Subramanium’s file from among the quartet that the Supreme Court collegium had recommended was done by the Centre on the basis of adverse reports by the CBI and the Intelligence Bureau. The CBI had “red-flagged” Subramanium’s candidature citing allegations that he had met 2G scam accused A Raja’s lawyers while he was Solicitor General, a charge Subramanium has denied. The IB, on the other hand, cited “personality oddities” including Subramanium mentioning his spiritual instincts in the exposure of large-scale pilferage of gold from the temple vaults at the Padmanabhaswamy temple in Thiruvananthapuram. Subramanium, on his part, has said candidly that the government appears to dislike his independence. “I am known to be utterly, utterly, utterly independent, which means I am inaccessible... " he told CNN-IBN in a televised interview . Though he said he has no evidence that any individual in the government is against him, speculation was rife that the NDA rejection of his Supreme Court nomination was motivated by his role as amicus curiae in the Sohrabuddin fake encounter case – in which likely BJP president Amit Shah is an accused. The court came down strongly on the then Narendra Modi government in Gujarat in that case. What’s more, while the Intelligence Bureau and the CBI ‘red-flagged’ his appointment as a Supreme Court judge, both agencies have widely used his services in top criminal cases. Justice Lodha said he had asked Subramanium to reconsider his decision to withdraw his candidature. “I came back on June 28 and had a meeting with Subramanium asking him to reconsider (his decision to withdraw consent for being appointed as judge). He replied the next day with a six-line letter expressing his decision (withdrawal of his consent) that he cannot go back on it…” he said. “On June 29 when he wrote a letter reiterating his position, I was left with no choice but to recall the proposal (recommending Subramanium’s name for appointment as judge),” the Chief Justice said. While the Chief Justice expressed his displeasure at the executive’s unilateral decision, a report in The Times of India quoted sources in the government as defending the decision to seek a reconsideration of Subramanium’s candidature. “We exercised the right we have got under the Constitution,” a senior government functionary was quoted as saying. Chief justice of Calcutta High Court Arun Mishra, Chief justice of Orissa High Court Adarsh Goel and eminent lawyer Rohinton Nariman were the other three names recommended by the collegium which the government accepted. The three were later appointed as judges of the Supreme Court.