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The Gopal Subramanium Appointment Controversy!

Published on Sun, Jun 29,2014 | 23:13, Updated at Mon, Jun 30 at 18:13Source : CNBC-TV18 |   Watch Video :

The manner in which Former Solicitor General Gopal Subramanium was compelled to withdraw his consent to be elevated to the SC bench has raised several important questions about this appointment and the general process of appointment of Supreme Court judges. But most importantly – it has brought to the fore an imminent politicisation of the judiciary. Who will win the face off between the government and the Supreme Court? Or do we all stand to lose?

Gopal Subramanium- Senior Advocate of the Supreme Court and Former Solicitor General of India. His name, along with 3 others, was proposed for an elevation to the Supreme Court bench by the Supreme Court collegium. But the Narendra Modi led Government has reportedly rejected his appointment as Supreme Court judge. The rejection is being linked by some to Mr. Subramanium’s service as amicus curiae in the Sohrabuddin case involving Gujarat government officials and police.

The rejection was accompanied by so called leaked intelligence reports that cast a shadow on Mr. Subramanium’s integrity and behaviour even though the same two agencies have for a long time relied on him to fight their cases in court. Ultimately it was not the rejection as much as the purported reasons therein and the accompanying slander that resulted in Gopal Subramium withdrawing his consent to be a Supreme Court judge. Did he have any other choice? CNBC-TV18’s Menaka Doshi puts that question to Senior Advocates of the Supreme Court.

Dushyant Dave, Senior Advocate, SC
“By withdrawing he has played into the hands of forces which wanted to stop him from becoming a judge. So, in that sense I would have been more comfortable had he allowed the collegium to take a second look at it and send it back which would have perhaps been a better course to my mind.”

Harish Salve, Senior Advocate, SC
“I am little distraught at the manner in which this has played out. The allegation that the government is shooting him down because he is an independent has an undertone which I do not like. The undertone is that the government is agreeable to those who are not independent. Are we trying to suggest that the other names therefore are not as independent as he is - which is not correct. Rohinton Nariman is a fiercely independent person. He was a Solicitor General in the previous regime and he also had differences with the previous regime. Gopal Subramanium had differences with the previous regime. So, I do not think it is the politics of the situation which should be given primacy.

Doshi: What can and should the Supreme Court and the Chief Justice of India, who heads the collegium, do now?

Dushyant Dave, Senior Advocate, SC
“I would definitely say that even if Mr. Subramanium may have withdrawn his consent, the collegium would be well advised to reconsider the matter and send his name back again if it finds that the reasons that government has given in not agreeing to his appointment, are not justifiable reasons and the reasons do not satisfy the text that has been laid down by the Supreme Court in its judgments for appointments of judges to the highest judiciary.”

Raju Ramchandran, Senior Advocate, SC
“Nothing more is to be done by the collegium because he has withdrawn his candidature but at a personal level, I do believe that the Supreme Court as an institution and particularly the collegium, is required to make some amends. These amends do not have to be made publicly considering the high position of the functionaries involved but Gopal is right in asking that there should be a proper closure.”

Doshi: The Gopal Subramium matter spotlights the always contentious matter of appointing judges.  The 1993 decision in the Second Judges’ case gave the Supreme Court supremacy in judicial appointments. Is that supremacy now in doubt?

Supreme Court, 1993
'No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.'
- Majority Judgment
- Also known as Second Judges' Case

Harish Salve, Senior Advocate, SC
“I wouldn’t say it diminishes anything but it brings to the fore the pitfalls in the system which we have right now. There has been a criticism of the system. There are people who have been concerned about a degree of opacity. Some of the names which have been recommended at times have created serious concerns. We know of recently the problem which happened in Madras HC recommendations which came into the public gaze. What happens is when you do things in a manner which are not completely open and transparent in institutional fashion as it is done in other places then this leak system starts and some times government uses leaks to build public opinion for or against. I do not know how these leaks have happened and leaks have now become something which is a separate problem we have to deal with but this judgeship of the High Court and Supreme Court is far too important an office, far too important an office and it therefore has to be in a mechanism where the appointment process is beyond reproach.  

Dushyant Dave, Senior Advocate, SC
“Unfortunately over the last more than two and a half decades the judges have clearly shown that the entire process that they have themselves adopted is highly secretive and is far from being transparent, open and fair. I personally feel that this process has not brought the best judges to be appointed to the highest judiciary and I would be much more comfortable if the original position of appointment by the Executive in consultation with the judiciary is restored back.”

Raju Ramchandran, Senior Advocate, SC
:According to me the solution is the national judicial commission where all stakeholders have an equal say, where names can emanate both from the judiciary and the political class. Names are invited, that there are search committees, names are thrashed out across the table with proper safeguards for confidentiality etc. We need the right mix of transparency and confidentiality. I think this instance makes it clear that there is no escape from moving towards a national judicial commission which will have the necessary element of democratic accountability.”

Doshi: The opacity in the process of how the Supreme Court collegium picks judges has lost it many friends. Many of those who believe the Supreme Court must have the final say in judge selection also believe there is place for the Executive’s views. But is the ideal solution to be found in the current design of the Judicial Appointment Commission?


JAC: Composition
- Chief Justice of India (Chair)
- 2 senior most SC judges
- Minister of Law
- 2 people nominated by Collegium

- Prime Minister
- Leader of Opposition of Lok Sabha
Harish Salve, Senior Advocate, SC
“We had a system from 1950 to 1993. By and large it worked reasonably well till the primacy of the Executive started creating troubles and Supreme Court is such a high powered institution, you do not have space for even one bad judge. So I accept that completely. Executive primacy therefore is something which nobody today speaks of. Today we need a system, A) which is transparent, B) which as far as possible can secure these appointments in a non-controversial way. That should be the goal of setting up when you are designing a new body which will appoint judges. We should try and see that we have a body where by consent you can arrive at sufficient number of names or at least sufficient number of people. So nobody has primacy and yet appointments get made.”

Doshi: Are we now set firmly on the path of the politicisation of the Supreme Court?

Dushyant Dave, Senior Advocate, SC
“Justice Verma's judgment in 1993 has a very beautiful passage from Shakespeare. It says, ' it is excellent to have giant strength but it is tyrannous to use it like a giant.' And that is exactly what the Executive today is aiming. I think that political interference by the Executive in judicial process or judiciary is not good for the politicians themselves because if you were to make judiciary amenable to your philosophy today, tomorrow when the opposition comes it will boomerang on you. So it doesn't really help. I think it is in everybody's interest to have an independent and strong judiciary.  

Raju Ramchandran, Senior Advocate, SC
“After all the other distinguished lawyer Nariman- whose name has been approved- is also a former UPA Solicitor General. So it will not be correct to say that politicisation has started but definitely with all the unpleasantness and with all the humiliation which has been caused to a very senior and respected member of the bar, I think a lesson has been learnt.”


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