The Gopal Subramanium episode seems to have taken a final turn, a nasty and sharp one. Chief Justice of India RM Lodha expressed his displeasure and dissatisfaction that the executive — the BJP-led NDA government of Prime Minister Narendra Modi — had “segregated” the name of Subramanium from the list of nominees to be Supreme Court judges without consulting him. He declared that if the independence of judiciary was compromised, he would quit. The government has not reacted. Law and justice minister Ravi Shankar Prasad had said that the government believed in the independence of the judiciary but refused to get into the specifics of the issue. Chief Justice Lodha was also unhappy with Subramanium for making public the letter he had written to him (Lodha) where he expressed the suspicion that the independence of the judiciary had been challenged. Of course, had Subramanium not opted out, the collegium could have pressed his appointment and the government would have been pushed to the wall. It did not happen. As a matter of fact, it was the sore Subramanium who had saved the blushes for both the executive and the collegium by declining the nomination. These are but the bare bones of the controversy, the first major one concerning the new government.
The existing system, however unsatisfactory, leaves the ultimate decision of appointing Supreme Court judges to the discretion of the collegium comprising the Chief Justice of India and four other senior-most judges of the apex court. The executive has every right to express its reservations and objections about any of the nominees, but it cannot be seen to have blocked a nominee. The executive does not have a say in the matter and it is a limitation that it should accept gracefully. The executive, of course, has every right, especially when it has a clear majority in the Lok Sabha, to bring in the proposed Judicial Appointments Commission. But it should not be seen to be high-handed in its handling of the existing process. It sends out a negative message.
The appointment of judges, especially in the higher judiciary, is indeed a difficult task and there is no infallible method of doing it right. What can be ensured is that the judicial competence of the nominee remains unquestioned and that his or her moral credentials unimpeached. But this is a decision that is in the hands of the collegium and not with that of the executive. The BJP’s reservations about Subramanium might be quite legitimate and it had every right to convey it to the CJI. It should have ended there. Secondly, the executive must accept the possibility that there will be judges who would not see eye-to-eye with the executive on many issues. It is a sign of the healthy state of the system of separation of powers where the legislature, executive and judiciary serve as a check on each other — the Constitution envisages it that way — and there is no suspicious consensus among them. A dissenting judge is a reassuring presence.
Chief Justice Lodha’s rebuke to the government of the day should be taken seriously. He was not venting a personal grievance. His remarks are a warning of the need for vigilance all round. Lodha has set a healthy precedent by speaking his mind instead of keeping his thoughts to himself. There is need for greater candour in the governmental system, and it is good that it has come from the judicial quarter.