COLUMN : L E G A L E A S E
By Parmod Kumar*
Chief Justice R.M. Lodha ticking off the government for not clearing former solicitor general Gopal Subramanium as a Supreme Court judge has sent a rather strong signal to all those worried about executive whittling away at the judiciary’s independence.
Before publically disapproving the government action of segregating Subramanium’s name and returning the recommendation, Lodha wrote to government telling it very clearly: Thus far and no further.
Just a day before he made public his disapproval, Justice Lodha, in a letter to Law Minister Ravi Shankar Prasad wrote: “I don’t approve of segregation of proposal without my knowledge and concurrence…. In future, such a procedure of unilateral segregation should not be adopted by the executive.”
The firm stand taken by the chief justice has set at rest apprehension in some quarters about a majority government’s interference in the coming days in a zealously guarded turf of Indian democracy – an independent judiciary.
There was a strong basis for such fears.
Though no parallel can be drawn between the office of the Lokayukta and the judiciary, the erstwhile Modi government in Gujarat,though unsuccessfully, did everything to frustrate the appointment of Justice (retd) R.A. Mehta as the Lokayukta merely because his views were not melodious to state government’s ears.
Besides being one of the three pillars of the state apparatus – the other two being the executive and the legislature, an independent judiciary not only forms the basic structure of Indian constitution but is essential for upholding the rule of law.
The judges of the Supreme Court and high courts should not only be men of integrity but be courageous enough to dispense justice “without fear or favour, affection or ill will”. This is also the oath they take while assuming office.
What the framers of the Indian constitution expected from an independent judiciary was aptly summed up by the country’s first prime minister, Jawaharlal Nehru, who had said that it was important that judges should not only be first-rate people but should be of the highest integrity, people who can stand up to the executive and whoever else come in their way.
From all that has come to light, it is clear that Chief Justice Lodha sought to impress upon Subramanium during his 75-minute meeting on June 28 that he should take back his letter withdrawing consent so that collegium could take the next step. On the face of it, it appears that the grounds on which Subramanium’s name was returned were not “strong and cogent”.
The apex court, by its Oct 6, 1993 judgment that gave birth to the collegium system of appointing judges, had said: “In exceptional cases alone, for stated strong cogent reasons, disclosed to the chief justice, indicating that the recommendee is not suitable for appointment, that appointment recommended by the chief justice of India may not be made.”
The government returned the apex court collegium’s recommendation based on a CBI report adversely reflecting on Subramanium’s role in dealing with the 2G scam and the mention of his name in corporate lobbyist Niira Radia’s tapes.
The government has since has defended its decision, with Ravi Shankar Prasad saying it was based on “cogent, proper and sound grounds”.
There are many questions making rounds in legal corridors. Why did Subramanium withdraw his consent when he was asked by the chief justice on June 24 to wait for him to return to look into the matter?
Why were the media reports so agonising to him that he could not wait for the chief justice to return and take command of the situation?
Why did the same CBI, which put the lid on 14 cases rooted in the intercepted Radia tapes as bragging, but treated all references to Subramanium as the gospel truth, including his role in the 2G case to allegedly help then communications minister A. Raja?
With Subramanium on June 29, reiterating to the chief justice his withdrawal of consent, this chapter stands closed as far as he is concerned.
But one question still begs an answer – the veracity of the CBI report that clouded Subramanium’s name getting cleared by the government, that too after the May 16 Intelligence Bureau report that had given him a clean chit.
Whatever happened in last two to three weeks was disturbing, but apprehensions about the judiciary taking a beating stand dispelled by the assurance that judges led by the chief justice of India would not permit any such tinkering.
“For the last more than 20 years, I fought for independence of judiciary and to me this is one subject which is not negotiable. At no cost, the independence of judiciary can be allowed to be compromised,” Lodha said.
“I will be the first man to leave this chair…if I know that judiciary’s independence has been compromised. I will not hold my office for a second.”
Need we say any more?
*Parmod Kumar is the IANS legal correspondent. The views expressed are personal. He can be contacted at [email protected]