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Judge pick pronounces govt guilty

Gopal Subramanium

New Delhi, June 25: Former solicitor-general Gopal Subramanium today withdrew himself from a shortlist of potential Supreme Court judges, saying “the government has a problem with my independence”.

The scathing comments of Subramanium, who was the Supreme Court’s adviser in a fake encounter case in which Prime Minister Narendra Modi’s closest aide Amit Shah is an accused, came in the middle of a confrontation between the Centre and the Delhi University vice-chancellor.

The back-to-back scrimmages have been cited by the Opposition to suggest that the Modi government is unable to work with “independent-minded” professionals.

Subramanium announced his decision through a letter to the Chief Justice of India in which he added that he was “unable to dispel the sense of unease that the judiciary has failed to assert its independence by respecting likes and dislikes of the executive”.

Subramanium had been empanelled with three others for appointment as Supreme Court judges by a collegium headed by R.M. Lodha, the Chief Justice of India. The others include Calcutta High Court Chief Justice Arun Kumar Mishra.

The government cleared the names of the others but rejected that of Subramanium.

In the nine-page letter to Justice Lodha, Subramanium alleged that there was a “very carefully orchestrated drama” to scuttle his promotion.

He added that his “independence” as a lawyer had been “decisive in refusing to appoint me”. “I have no illusions that this is so,” Subramanium said in the letter.

Prime Minister Modi, who tweeted today a picture of him feeding sweets to a PMO staff member’s son who made it to the civil services, had not commented till late tonight.

Law minister Ravi Shankar Prasad said: “Please do not drag me into the controversy.”

But sources in the bureaucracy insisted off the record that nobody concerned with the decision had ever mentioned even in passing that Subramanium’s “independence” could be a “challenge” to the government. “Does it mean that the other candidates are not independent? No candidate for a judge’s post has ever gone public in this manner after being turned down,” an official said.

The CBI had reportedly raised questions over Subramanium’s candidacy, pointing to his role in the 2G case as well as some purported references in the Niira Radia tapes.

As solicitor-general when the UPA was in power, the agency claimed he had met a lawyer for 2G scam accused and former telecom minister A. Raja in his office.

Quizzed today on CNN-IBN, Subramanium said: “I was never told (at that time) that Mr Raja was under some sort of a case or that he was under suspicion. I didn’t even know about it. The conference which I had was only with the CBI officer in a private room and it was I who asked the question that, ‘is there any information against the minister (Raja)?’”

Some sources suggested that the clincher was something else. The Intelligence Bureau reportedly claimed that the veteran lawyer relied on his spiritual instincts. For instance, in a report on the riches in the Sree Padmanabhaswamy temple in Kerala, he had reportedly stated that he could not take the credit for unearthing the “misdeeds” because the “discovery” was “divinely ordained”.

Excerpts

The following are excerpts from a nine-page letter former solicitor-general Gopal Subramanium wrote to the Chief Justice of India, R.M. Lodha, and made public by the news agency PTI. The sub-headings and italicised explanations were included by this newspaper

Aberrations

I must add that to invite a leading member of the Bar, and his appointment to the Court, must engender expectations of positive conduct and contribution. I have always believed that the Executive Government would so perceive and understand. Clearly, this is not the case. The recent weeks have witnessed some serious constitutional aberrations.

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.

Won’t toe the line

I am fully conscious that my independence as a lawyer is causing apprehensions that I will not toe the line of the Government. This factor has been decisive in refusing to appoint me. I have no illusions that this is so.

Clean chit

....On May 15, 2014, the Intelligence Bureau had given me a clean chit. The IB has sought my advice on sensitive matters of national security for over 25 years (including during the previous NDA regime). In fact, the then Deputy Prime Minister, Shri L.K. Advani, used to treat me with so much courtesy. The CBI has also consulted me on numerous occasions (before, during, and after my tenure as Law Officer) and I continued to have been its lead lawyer even after my resignation from the post of Solicitor General.

Clear mandate

One wonders why the CBI would repeatedly engage me as lead counsel over the past 20 years if there was any doubt. I have reliably learnt that the Ministry of Law and Justice initiated an inquiry after May 15, 2014, with a clear mandate to find something to describe me as unsuitable.

Sohrabuddin case

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 (the brother of Sohrabuddin who was killed in a suspected fake encounter) v. State of Gujarat....

My actions as amicus in the matter were greatly appreciated by the Supreme Court, and this was possible only because of the standards of integrity that I maintain in professional life and my undying respect for the Court. It appears that I am now being targeted because of this very independence and integrity.

Murder indication

I found that the (Rubabbuddin) petition contained a reference to a letter, which had been written by the Petitioner to the CJI, sometime ago. I went to the registry, found out the record, and, found that there was also a reply from the Gujarat police, which had certain annexures, which annexures indicated the commission of a murder. Therefore, 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.

Cremated!

In the first instance, I may add that I also insisted upon the production of Kauserbi (Sohrabuddin’s wife) 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.

Amit Shah

I may add, that I have never met Mr. Amit Shah (the then junior home minister of Gujarat) and I have only seen his photographs in the newspapers recently. I may also add that, in the course of the hearing of the bail application of Shri Amit Shah, I had said that his liberty should not be infringed and he may be allowed to be enlarged on bail but remain outside the State of Gujarat. This is only to indicate that I had no personal vengeance or any kind of grudge against the said Mr Amit Shah.

Modi

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 Narendra Modi, who appeared to have heard of me from before, and greeted me with a measure of respect. Incidentally, I mentioned that my wife was born in Mithapur in the State of Gujarat.

Shri Narendra Modi very decently asked both of us to come to the State of 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. Apart from this meeting with Shri Modi, I never had any interaction with him and it would not be proper on my part to say anything else.

‘Segregated’

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....

I further understand that this segregation has been carried out without the file being sent back to the Collegium for reconsideration....

If I continue to be judge-in-waiting, the validity of these appointments is bound to come under a cloud. The three appointees have been my friends over so many years. The least I owe them is that I withdraw.        

Judiciary

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. While harmony between different organs of the State is a desirable feature, the functionality of each organ is meant to have different, defining characteristics.

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.

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 an act of closure, which a Court of Justice owes to its own members. By failing to do it, the Court will sink into quicksand.