The first thing I had taken objection to was the segregation of Gopal Subramaniums file unilaterally by the executive. It is not proper, said the CJI. I, as the CJI, and four senior colleagues in the collegium spotted the best talent, who in our opinion would be good judges. We forwarded four names to the executive for appointment on May 6, he said.
On my return from abroad on June 28, a file was placed before me by the Ministry of Law and Justice, indicating that out of the four names, three proposals had been approved and the name of Gopal Subramanium was segregated. It was done unilaterally... without my knowledge and consent, said the CJI at a farewell function for Justice B S Chauhan who retired on Tuesday.
Do not bear the impression that the independence of the judiciary has been compromised. What really shocked me were questions regarding the independence of the judiciary. I have always fought for it and I will be the first person to leave this chair if it is compromised. I promise 1.2 billion people of India that independence of the judiciary will not be compromised, he said.
When contacted, Law Minister Ravi Shankar Prasad said, Our government has the highest regard for the judiciary and its independence and profound respect for the Chief Justice of India. Beyond this, I have no comment to offer.
The collegium recommended Subramaniums name along with the names of senior advocate Rohington Nariman, Calcutta High Court Chief Justice Arun Mishra and Orissa High Court Chief Justice Adarsh Kumar Goel for elevation to the Supreme Court.
While the three other names were cleared, Subramaniums elevation was blocked by the Modi government following a negative report by the CBI questioning his propriety as SG in the 2G case and his alleged links with former corporate lobbyist Niira Radia, whose intercepted phone conversations are under CBI scrutiny.
Subsequently, in his letter to the CJI on June 25, Subramanium withdrew his candidature, alleging that the government feared he would not toe their line and hence it ran a propaganda to mark him as unsuitable for elevation. He said the government did not respect the independence of the judiciary. Complaining about the judiciarys failure to assert its independence by respecting the likes and dislikes of the executive, he appealed to the CJI for a suitable introspection.
The CJI said he was shocked and disappointed when Subramanium made his letter public although he asked him to wait till his return on June 28. It really shocked me... shocked me hugely...I have in the last 20 years fought for the independence of the judiciary. It is one subject which is non-negotiable at any cost. What can be more precious to me than the institution, for which I have worked as a judge of high courts, chief justice of high court, a judge of the Supreme Court and also the CJI, he said.
I met Subramanium after I came back and we spoke for around 75 minutes. I asked him if he was still sticking to his decision to withdraw, said the CJI, indicating that he asked Subramanium to reconsider his decision. He said Subramanium told him that he would get back to him.
On June 29, Subramanium wrote another six-line letter to me reiterating his decision. He wrote I regretfully cannot consent to be a judge of the Supreme Court. I am making this public since he made the other letter public, he said. The CJI said he had no alternative but to formally recall the proposal after Subramaniums letter.
While Subramaniums withdrawal averted a possible face-off with the executive, the issue produced a test case for the judiciary, wherein a government with a powerful mandate flagged a negative report against a candidate recommended by the collegium for elevation as a Supreme Court judge.
Government sources said this was not the first time that this has happened. In 2009, the collegium had recommended the names of Justice Swatanter Kumar and Justice C K Prasad. The then Law Minister had only cleared Justice Kumars name. Justice Prasads appointment was cleared after a few months.
In 2009, the SC collegium withdrew Justice P D Dinakarans name following the governments rejection. In the last two years, more than half-a-dozen names recommended by different High Courts for elevation as Supreme Court judges were also returned due to allegations.