Murky actions

The government’s handling of the Supreme Court collegium’s recommendation for appointment of former solicitor-general Gopal Subramanium as a judge of the SC has raised concerns and is questionable in many ways. The government blocked his appointment by forwarding to the President only three out of four names recommended by the collegium. Subramanium has withdrawn his consent to be considered for the position in the wake of the controversy, but days after he imputed motives to the government’s action, it has not come out with a convincing explanation for it. In the absence of it, Subramanium’s charge that the government considered him too independent for the position would only sound credible. The devious means adopted by the government, allegedly to block his appointment, would also support this.

By sending only three names to the President for appointment, instead of returning the file to the collegium which was the normal course if the government wanted a reconsideration of any name, the government violated the due procedure. If the collegium stuck to its recommendation, the government would have had no option but to accept Subramanium’s name. It probably wanted to scuttle this possibility. The leaked reports about some purported acts of impropriety by Subramanium which raised questions about his suitability also gave a murky dimension to the matter. Therefore, the perception expressed by Subramanium that his role as amicus curiae in the Sohrabuddin encounter case, which led to judicial actions against BJP leader Amit Shah, influenced the government’s conduct would find credence. That would show partisanship, based on personal or political considerations, in decisions on judicial appointments, and it is undesirable and objectionable. The executive has the right to have its views on the collegium’s recommendations and pursue them with it. But the use of innuendos and intelligence reports, which cannot be verified, is wrong.

The collegium also failed to defend its recommendation after it had secured Subramanium’s consent for consideration as a judge. It also did not tell the government to follow the correct procedure. Subramanium has seen it as a case of ‘’the judiciary failing to assert its independence’’ and has expressed his unease over it. This is particularly glaring because the government’s action in effect circumvented the court’s powers in the present scheme of judicial appointments. Both the government and the court have erred in the matter.

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