Judiciary has failed to assert its freedom: Gopal Subramanium

The following are the excerpts of the nine-page letter of former Solicitor General Gopal Subramanium to Chief Justice of India Justice RM Lodha on June 25, 2014 following the controversy over his proposed appointment as SC judge:

Respected Chief Justice,

I have felt deeply honoured and moved by your request and persuasion to be a Judge of the Supreme Court. Over the past two weeks, quite a few media reports have voiced the Union Government's reservations about my appointment. These reports speak of alleged adverse reports against me by the Intelligence Bureau and the CBI. I must say that these media reports are malicious insinuations based on half-truths, and appear to be a result of carefully planted leaks aimed at generating doubts in the minds of the Collegium and of the public as to the suitability and propriety of appointing me as a judge of the Supreme Court.

Full text: Gopal Subramaniam's Letter to Chief Justice

The IB has sought my advice on sensitive matters of national security for over 25 years (including during the previous NDA regime). The CBI has also consulted me on numerous occasions (before, during, and after my tenure as Law Officer). I have reliably learnt that the Ministry of Law & Justice initiated an inquiry after 15 May 2014, with a clear mandate to find something to describe me as unsuitable. 

I, as Solicitor General, handed over the tapes of recorded conversations of Ms. Nira Radia in the Supreme Court. Allegations have also been made that I used Ms. Radia's offices to get a swimming pool membership. The correct facts are that I had been advised by my physician at the time to get some exercise by swimming. Since the Talkatora Swimming Complex (which I used to frequent at the time) was undergoing repairs, I had requested Mr. Parag P Tripathi (then ASG), if he could arrange a membership for me at a swimming pool.

I feel that I must also address here another issue being raised by the media as to why the Government considers me unsuitable for the post of judge. As you are aware, I assisted the Supreme Court between 2007 and 2011 as amicus curiae in the matters of Rubabbuddin Sheikh v. Sta. of Gujarat and Narmada Bai v. State of Gujarat. It appears that I am now being targeted because of this...

I recommended to the court, in a sealed cover, that a notice might be issued to the State of Gujarat to explain the disappearance of the said Sohrabuddin. In the first instance, I may add that I also insisted upon the production of Kauserbi by way of an ad-interim writ of habeas corpus at which stage the learned Counsel appearing for the State of Gujarat conceded in the Court that the said Kauserbi had also been killed and cremated. Even then, as a mark of respect for the law and order machinery within the State of Gujarat, I requested a Special Investigating Team, headed by Smt. Geeta Johri, to undertake the investigation into the case. It was during the investigation of Ms. Geeta Johri that a critical eyewitness, one Mr Tulsiram Prajapati. was mysteriously liquidated. Then I pleaded for the transfer of the case to the CBI. I have never met Mr Amit Shah and I have only seen his photographs in the newspapers recently. I may add that I have never met Shri Narendra Modi in my life, except once, that too when I was the Solicitor General of India (a period the memory of which I hope will be forgotten by me with time!!!). My wife had accompanied me to the dinner of Chief Justices and the Chief Ministers and I was introduced to Shri Modi, who appeared to have heard of one from before, and greeted me with a measure of respect. Incidentally, I mentioned that my wife was born in Mithapur, Gujarat. Shri Modi very decently asked both of us to come to Gujarat and be his guest of honour. I may add that my wife and I very rarely accept such invitations, and did not avail of any such hospitality.

Dismayed by reports

I am dismayed at reports that the file forwarded by the Court to the Government recommending four names for elevation (including mine), has been 'segregated' and the names of three candidates (not including mine) have been 'cleared' by the Government as well as by the Hon'ble President of India and that warrants have been issued for their appointment. I further understand that this segregation has been carried out without the file being sent back to the Collegium for reconsideration. If my understanding is correct, then the aforesaid three appointments appear to be against the framework prescribed by the Constitution and by the Supreme Court in various pronouncements.  I am, however, unable to dispel the sense of unease that the judiciary has failed to assert its independence by respecting likes and dislikes of the Executive. 

I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. I certainly protest against a very carefully orchestrated drama to overcome a recommendation. I, however, fully forgive all those involved. Under the circumstances, I withdraw my consent to be appointed a judge of the Supreme Court, and request you to proceed on that basis, so that I may resume my position at the Bar, from where, I now feel, I will be able to be better assist the institution than from within. I request you to communicate the same to the Executive Government. However, I stood to repudiate these outrageous allegations (inspired, as I came to know, by constituents of high authority). The Court owes me, in the very least, a clear statement of confidence, although my personal character is not dependant on the outcome of such willingness. It is start of closure, which a court of justice owes to its own members. By failing to do it, the Court will sink into quicksand. 

I wish you and your colleagues a great stints ahead in the new term. The self-imposed ban on my work, from May 2014, stands lifted…In accordance with the highest traditions, when such events occur, i.e., when a lawyer invited to the Bench does not get to become a Judge, as a mark of respect, he ceases to practice in that court, till the incumbent Chief justice demits office. I shall, therefore, be resuming work at the Supreme Court only thereafter. I will, of course, miss your lovely presence. May God bless you in your best endeavours! 

With very warm personal regards and my best wishes,

Gopal Subramanium