It may not be the first time, but that does not make the deed less unacceptable. The chief justice of the Supreme Court, R.M. Lodha, could not have made this message clearer in his criticism of the Narendra Modi government which “unilaterally” deleted the name of the former solicitor general, Gopal Subramanium, from the list of four names proposed as Supreme Court judges, sent by the Supreme Court collegium headed by the CJI. The CJI’s disapproval is clear in his repeated emphasis on the issue of the judiciary’s independence that has been “questioned” by the executive’s act. The situation has been compounded by Mr Subramanium’s withdrawal of his own name in a letter that he made public, another cause of the CJI’s disapproval. The former solicitor general expressed doubts about the judiciary’s independence, and the CJI’s emphasis on this theme may be read as an answer to those remarks as well as a firm signal to the Bharatiya Janata Party, the leaders of which may not have been comfortable with Mr Subramanium’s role as amicus curiae to the court during the hearing of the Sohrabuddin fake encounter case. The collegium could have persisted with the matter had Mr Subramanium not withdrawn his name. By doing so, he himself deprived the judiciary of the means to assert its independence in this matter.
Such particulars aside, the CJI’s emphasis on the judiciary’s independence comes at an important moment. He has said that it has not yet been compromised, only questioned, but if he felt it was being compromised he would step down. The question of executive interference has always been a thorny one; it is likely to get thornier with one party dominant at the Centre. The tussle becomes obvious in matters where the judiciary and the executive are supposed to work “in consultation with” each other; “consultation” suggests a fragile balance and often results in a tug-of-war of interpretation. The CJI is making his stand crystal clear by drawing the boundary lines firmly at the first — if rather unfortunate — opportunity offered him by the executive. The independence of the judiciary, as he says, is non-negotiable. And it is the perception of this independence and dignity that will encourage the people to repose their faith in the courts, something that power tussles with the executive always tends to damage.