Politicians cutting across party lines are unhappy with the present form of choosing Supreme Court judges. A collegium comprising the Chief Justice of India and four most senior judges recommend names which go to the Union law ministry, that is the government, which either approves or returns the recommendation asking for reconsideration. In a way, the government is disagreeing with the collegium. If the collegium persists, then the government will have no choice but to accept. But there often seems to be a tussle from both sides to have its way, and what emerges is a compromise of some sort.
In the case of former solicitor general Gopal Subramanium, the collegium has recommended his name along with three others. The new BJP-led NDA government objected to Subramanium and accepted the others. Meanwhile, the story found its way into the media — and it became apparent that the BJP did not approve of Subramanium because of his association with the 2G spectrum allotment case and with the alleged fake encounter of Sohrabuddin, in which BJP general secretary Amit Shah has been implicated. The BJP/NDA government made it appear that the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI) revealed aspects of Subramanium’s professional and personal life which the government felt were not conducive for the making of a SC judge. Subramanium on his part says that the Chief Justice RC Lodha told him that the IB had given its clearance. It is indeed strange that IB should be judging the character of a person to be made the judge of the apex court.
The furore is over the politicisation of the process of the appointment of a Supreme Court judge. Subramanium claims that he was singled out on grounds of politics. The government and the collegiums are silent, and the media reports based on government sources reveal that the BJP suspected his political neutrality. There is a general argument that an independent judiciary means that it is free of political manipulation and it is above political predilections of any kind. There is undesirable fuzziness in this judges-ought-to-be-apolitical. What is implied is that the judges should be non-partisan, and that they should not have party loyalties. It is a fair demand. But it should be recognised that judges have a political philosophy of their own and their judgments will reflect their philosophy. They can be conservatives, progressives, liberals, even socialists and communists. It will clear the air if this fact is accepted openly. What should be of importance is judicial competence, deep knowledge of law and fair-mindedness in judging issues on merit. In the fight over getting their respective recommendations approved, the core issue of competence seems to get overlooked.
Secondly, there has to be openness on the part of collegium and government to make public the reasons for their choices and also the objections, as in the case of Subramanium. The American system provides for open hearing by the senate of the candidate recommended by the president and it is played out in the public. The pretence in India that the judiciary is above politics may have to be given up, and the bare truth has to be accepted that the appointment of a judge is indeed a political, not a party, issue as anything in the public sphere is. Both government and collegiums should lay bare their legitimate prejudices while appointing judges and do so in an open and transparent manner.