Not going by the rule book here

The CJI’s remarks suggest that the Centre and Gopal Subramanium are both to blame for the mess

The saga over the appointment of Gopal Subramanium as a Supreme Court judge continues. Mr Subramanium withdrew his candidature last week after it emerged that the Centre withheld consent for his appointment, while clearing the names of three other judges who were proposed by a Supreme Court collegium. Mr Subramanium alleged that he was being subject to a “dirt digging exercise” by the government and that “carefully planned leaks” were circulating to generate doubts about his candidacy. He regretted that the judiciary had not stood by him and withdrew his name to protect his honour and dignity. Chief Justice of India RM Lodha lent a new twist to this controversy this week by disclosing that the Centre had “unilaterally” segregated Mr Subramanium’s name from the panel of names without his knowledge and concurrence which, in his view, “was not proper”. Justice Lodha’s remarks are a serious indictment of the government’s handling of this issue. If the government had its reasons for not elevating Mr Subramanium despite his credentials, it ought to have spelt out the reasons then and must do so now. The government will only end up fuelling suspicions about its approach to the independence of institutions if it does not have a credible narrative to explain the sequence of events. The government ought to have explored the scope for consultations with the CJI instead of finalising the “segregated” file while he was away abroad.

Mr Subramanium, too, has not helped himself or the cause of judicial independence by his conduct. He pre-emptively withdrew his candidacy and waged a public campaign against the government without waiting for the CJI to return to Delhi. In showing undue haste, Mr Subramanium did not allow the appointments process to fully unfold that may have eventually worked in his favour. The collegium could have potentially sent Mr Subramanium’s name back to the government, which would have made it much more difficult for the latter to refuse. Justice Lodha has revealed that he subsequently asked Mr Subramanium to reconsider his decision to withdraw, but the latter reportedly declined to. In so doing, Mr Subramanium foreclosed the scope for his appointment to become a litmus test for the judicial independence that he so avowedly cherishes.

Justice Lodha has done well by setting out his side of the story and clearing the air on this murky episode. His stern remarks will set the tone for the judiciary’s relationship with the executive in the days ahead. They may also reassure some who worry about the institution he leads.