On Tuesday, former Solicitor General of India Gopal Subramanian announced his decision to withdraw his candidature from the running to be a Supreme Court judge, in a letter to the chief justice of India, RM Lodha. Subramaniam decided this after reports in the media that Narendra Modi’s National Democratic Alliance government objected to his appointment after the Intelligence Bureau alleged Subramaniam had links with corporate lobbyist Nira Radia, one of the principal figures in the 2G scam. Subramaniam, in turn, alleges in the letter that his independence as a lawyer has caused apprehensions that he will not toe the government’s line.

Executive vs Judiciary

You find instances through history of the executive attempting to exercise control over the judiciary. US President Franklin Roosevelt was so concerned that the Republican-controlled Supreme Court would nix the New Deal that he had the Judiciary Reorganisation Bill passed. Indira Gandhi’s appointment of AN Ray as chief justice of India, in 1973, is now seen as a grievous contravention of the norms of appointment.

There were other instances that excited interest, such as the elevation of Justice DP Madon to the Supreme Court. As chief justice of the Bombay High Court he ruled, in 1976, against Congress censorship while the Emergency was in force. He also indicted the Rashtriya Swayamsevak Sangh and Jan Sangh for their roles in the 1970 communal riots in Bhiwandi, Maharashtra. He was sounded out for judgeship in 1975, but only made the bench in 1983.

In the case at hand, the Modi government’s objection to Subramaniam’s elevation is under particular scrutiny because the lawyer acted as amicus curiae (friend of the court) in the Sohrabuddin Sheikh and Tulsiram Prajapati cases. In both cases Gujarat’s Anti-Terrorism Squad is accused of the faked encounter-killings of Indian citizens at political behest. In both cases Modi’s key aide, Amit Shah, is one of the main accused.

The Collegium

This is why, in 1993, the Supreme Court devised the collegium system, bringing to an end more than a decade of tussle and heightened tension between the judiciary and the executive. The procedure they instituted gave the chief justice of India and the four senior Supreme Court judges the power to decide upon appointments. If the collegium recommended a particular person, the executive would have the right to refuse to accept, provided cogent reasons were given. However, if the collegium refused to reconsider, the government would have to comply.

There are no written codes regarding who can be appointed as a judge, though the Constitution does prescribe a minimum eligibility. Subramaniam cannot be faulted on that account, because he has had a remarkable career, working on cases of national interest such as the December 13 Parliament attack prosecution, was Special Public Prosecutor in the Mumbai terrorists attack case, and amicus curiae in the Sree Padmanabhaswamy temple gold-pilferage case.

But it is the opacity which the collegium enjoys that most troubles the executive. In a functional democracy each branch of government authority is supposed to act as support and rein to the others; the collegium system, which effectively allows judges to choose and promote their own, has been a source of tension since its inception.

Reforms to be dialed back?

Putting aside the personalities and egos at stake – Modi and Subramaniam, principally – this latest battle between executive and judiciary will have most urgent consequence on the movement for judicial accountability in India.

The collegium system keeps out the executive’s interference, but it has turned the judiciary into a virtual cabal – an old boys’ network.

The proposed Judicial Appointments Commission, which when constituted would make recommendations to the President on the appointment of senior judges, would have remedied this. Parliament would be empowered to control the composition of the JAC. The Bill related to this has been passed by the Rajya Sabha.

By all indications, the judiciary was ready to play ball. But the government’s decision to ask the collegium to reconsider its decision means the judiciary can claim the high ground, citing executive interference into its appointments. Ultimately, the Indian citizen is the loser.