Wednesday, February 8, 2023

Politics vs Merit?

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The center feared that gopal subramanium could become the CJI in 2019 and influence politically-sensitive cases



By Rajendran Nair Karakulam and Vishwas Kumar

It was the first case of the Modi government’s confrontation with the judiciary. On June 25, senior advocate Gopal Subramanium withdrew his candidature for appointment as a Supreme Court (SC) judge four weeks after the apex court’s collegium recommended his name along with Rohinton Nariman, Adarsh Kumar Goel and Arun Mishra.

Subramanium’s decision was forced by the government’s move to ask the collegium to reconsider his appointment. The BJP leaked two negative intelligence reports against the lawyer. The IB and CBI’s reports mentioned the complaints filed by two CBI officers against Subramanium during the 2G spectrum scam probe.

In a nine-page letter to the chief justice, the advocate refuted the charges against him. Subramanium accused the government of “character assassination”. He had earlier told friends that IB had cleared his name during the tenure of the previous government. The letter said the NDA regime’s decision raised serious concerns about the “ability of the executive to respect the independence, integrity and glory of the judicial institution”.

Gopal Subramanium 2

The issue behind the battle was political. The government felt that he was close to the Congress—he served as the solicitor general under UPA II—and, therefore, couldn’t be trusted to act independently in sensitive cases.

As a BJP insider explains: “A judge, especially for the Supreme Court, should be selected not only on the basis of integrity, merit and qualification, but also ‘neutrality’. He or she should  be above all suspicions. Based on past experience, we felt that Subraman-ium’s ideological leanings were tow-ards the Congress and the UPA.”

There could have been a personal reason why Modi and Amit Shah may have hated Subramanium. This was the advocate’s role in the Sohrabuddin fake encounter case in Gujarat. While Subramanium was the solicitor general, he agreed to become amicus curiae to assist the apex court in the case, which involved Modi and Shah.

BJP politicians cried hoarse over  “conflict of interest”. How could Subra-manium who, in his official capacity, represented the UPA-II’s view, be neutral in this politically-sensitive case, they asked. It was his efforts that led to the arrest of Shah, the then Gujarat minister of state for home affairs, and constitution of a SIT team that questioned Modi, the then chief minister.

Subramanium claimed that he bec-ame the amicus curiae because the apex court asked him to do so. But the BJP argued that although the Sohrabuddin case involved his family members, activists and the Gujarat government, Subramanium’s decision enabled the UPA government to enter through the back door. 

The BJP is scared that if Subra-manium was appointed the apex court judge, he could become the chief justice in 2019. Subramanium, who had issues with former law minister, Kapil Sibal, could directly and indirectly interfere in sensitive cases.

The real issue is about the political interference in judicial appointments. It was because of the politicization of the judiciary that the old system was changed to the collegium one in 1993. Before that the judges were appointed by the executive; in the 1970s, Justice HR Khanna, the seniormost judge in the apex court, was denied the chief justice’s post because of his order in the ADM Jabalpur case.

Law Minister Ravi Shankar Prasad may push for the Judicial Appoint-ments Commission, rather than allow the collegium system to appoint judges. Chief Justice RM Lodha and former chief justice P Sathasivam have oppo-sed the removal of the system. The constitutional amendment for the change has been passed by the Rajya Sabha and NDA has the numbers in the Lok Sabha to push it through.

—With inputs from Shailendra Singh

Gopal’s controversies

— 2G scam: Called two CBI officers in chamber to discuss the case; A Raja’s lawyer was present

— Padmanabhaswamy Temple: As amicus curiae, he said it should be managed by erstwhile royal family

— Niira Radia: Charges that he was close to her, and was mentioned in several of her taped conversations l Sohrabuddin encounter: As amicus curiae, his inputs led to the arrest of Amit Shah and interrogation of Modi by SIT


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