Gopal Subramaniam, an eminent lawyer, is denied place in the apex court of the country by a vengeful government. The episode hints at shape of things to come.
Senior lawyer Ram Jethmalani once said, ” There are two types of judges in India – the ones who know law and the ones who know the Law minister.”
The government has always had a major role in the appointment of judges right through. In 1979 when the then Chief Justice Chandrachud tried to appoint Justice Yashodanand and Justice Chandurkar to the Supreme Court, he was stalled, thanks to stiff opposition from the Centre.
Again G.P.Singh was denied elevation to the Supreme Court as he had earned the wrath of the federal government during his stewardship of the Madhya Pradesh High Court by rejecting some recommendations from the Centre for appointment to that court.
Similarly the appointments of Justice P.D.Desai, the then Chief justice of the Himachal Pradesh and Justice Chandwalia , the then Chief justice of Patna High court were torpedoed by the Centre for various reasons.
During the Emergency, in the case questioning the suspension of fundamental rights, four judges fearing Indira Gandhi, ruled in favour of the government, but Justice H.R.Khanna dissented – predictably an enraged Mrs Gandhi denied him the prestigious post of the Chief Justice of the Supreme court, though he was in line for it by virtue of his seniority. Justice Khanna resigned in protest, thus kicking up a furore and embarrassing the Centre no end.
So clean a man that he makes angels look disheveled and dirty,’ wrote Khushwant Singh about Justice Khanna.
Even in recent times, many failed to make it to the Supreme Court because of a hostile Centre, though some did eventually after a few rejections following pressure from the judiciary.
Though the judges are generally appointed by a collegium set up for the purpose, the Law ministry is always consulted. Well of course even if the Law ministry differs with the selection, the decision of the collegium is final. But between 1971 and 1993, it was the Centre that played a dominant role.
It was a time when the collegium couldn’t appoint anyone whose selection was opposed by the government. There was no problem in the appointment of judges when the Janata party was in power. But after the collapse of that government , when Charan Singh was the Prime minister with the support of the Congress, appointments of many judges were rejected.
The Congress is known for taking revenge on judges they don’t like. Justice Jaganmohan Lal Sinha of the Allahabad High Court, who declared Indira Gandhi’s election void, didn’t get the opportunity to serve in the higher Court. The same thing happened to Justice Lentin who found Mr.A.R.Antulay , the former chief minister of Maharashtra, guilty of corruption charges.
“On April 25, 1973, a day after the delivery of the judgment in the Fundamental Rights case (Kesavananda Bharati), the Indira Gandhi government, departing from earlier conventions, superseded three of the senior-most judges (who had decided against the government) and appointed A.N. Ray as Chief Justice of India. Justice Ray had decided three major cases in favour of the Central government — though in the minority — namely the Bank Nationalisation case, the Privy Purse case and the Kesavananda Bharati case. The government stand was to appoint “forward looking” judges who shared its philosophy — a euphemism for compliant judges.
“After the declaration of Internal Emergency in June 1975 (as a sequel to the disqualification of Indira Gandhi who lost her election petition and could not obtain a complete stay from the Supreme Court), a calibrated, predetermined attack on judicial independence was organised and implemented. Mass transfers of 16 independent High Court judges, including A.P. Sen, Chinnappa Reddy, B.J. Divan, Sankalchand Sheth, J.R. Vimadalal and P.M. Mukhi, from their parent High Courts were made. Additional Judge U.R. Lalit was not confirmed. Justice S. Rangarajan was transferred to Sikkim because he delivered a judgment in favour of Kuldip Nayar (preventively detained) and a Service Judge R.N. Aggarwal who concurred was reverted as a Sessions Judge (after four years in the Delhi High Court). These were all punitive measures to intimidate independent and fearless judges and undermine their morale,” points out Anil Divan.
Recently Chief justice A.P.Shah of the Delhi High Court ruled that judges too came under the Right to Information act, and so his senior colleagues themselves denied him promotion.
Continuing with such a dubious legacy, the Modi administration has stalled the appointment of senior lawyer Mr. Gopal Subramaniam. Clearly it is taking steps to bring the judiciary under its control, just like Indira Gandhi did during the Emergency.
In a series in the Savukku website, it was noted that Mr. Modi was arrogant, a man of vendetta and would do anything to promote his personal interests. The rejection of Mr.Gopal Subramaniam’s appointment only vindicates such an assessment.
There is no doubt that Mr. Gopal Subramaniam is one of India’s best lawyers. He has worked under Justice Wadhwa of the Supreme Court and also with that reputed lawyer Mr.Solil Sorabhjee Mr.Subramaniam was made a senior lawyer by the Supreme Court at a very young age.
He had worked as the counsel of Justice Verma commission when it looked into the security lapses relating to Rajiv Gandhi’s assassination and for the Venkatasamy commision which looked into Tehelka’s sting operation. He was the Public Prosecutor in the Mumbai blast case. In the 26/11 attacks case he was again the public prosecutor and was able to prevail on the bench into awarding death penalty to Ajmal Kasab.
Apart from his profound knowledge of the law, Subramaniam is also known for his unimpeachable integrity. When a PIL was filed on the illegal detention of people in mental health facilities in Assam, Justice Venkatachalayya and Justice Mohan assigned Subramaniam the task of submitting a report on the situation. Do you know how the judgement of that case starts?
“ We have perused the excellent report submitted by Shri Gopal Subramanium, Senior Advocate. At the outset, we consider it our duty to place on record our deep appreciation of the time and energy spent by Sri Subramaniam in inquiring into the situation. We have no hesitation in accepting the report in its entirety. There is one other aspect which requires immediate attention.
“Shri Subramaniam, though worked in his capacity as Commissioner appointed by this Court, appears to have incurred expenses running to tens of thousands of rupees during the course of his court-assigned work, but all from out of his own pocket. We request him to furnish an account so that at least there could be some restitution of the money spent by him.”
This happened in 1994. Subsequently he was appointed the amicus curiae in many cases by the Supreme court. It was one such case that has cost him now a seat in the august apex court.
He was the amicus curiae in the notorious Sohrabudin Sheikh fake encounter case, and he effectively nailed the Modi government on the issue. How can the then CM and now PM forget or forgive his temerity, his determination to get at the truth.
In his letter to the Chief justice withdrawing his candidature, Subramaniam notes:
” As far as the Rubabbuddin Sheikh case is concerned, I would like you to know the correct facts. I was sitting in the Court waiting for a matter to come up, which was lower down in the list. The Bench consisted of Justices Tarun Chatterjee and Dalveer Bhandari. It was Justice Dalveer Bhandari who along with Justice Tarun Chatterjee requested me to appear as amicus curiae in the matter. I readily accepted the request, which is consistent with the duties of the office of a Law Officer. I found that the petition contained a reference to a letter, which had been written by the Petitioner to the Chief justice of India, 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 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 Sohrab-uddin. In the first instance, I may add that I also insisted upon the production of Kauserbi 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, 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, the right hand man of Mr.Modi today, was arrested in connection with this case and had to serve a few months behind bars. Only because the courts ordered him to keep away from Gujarat during the trial, Mr.Modi sent him to Uttar Pradesh.
The relationship between Mr.Modi and Mr.Shah is similar to that between Ms.Jayalalitha and Mrs.Sasikala. Has Ms.Jayalalitha ever let down Mrs.Sasikala even if the latter is known to have amassed wealth with or without her knowledge ?
Mr.Modi and Mr.Shah are ideologically close, thick as only committed Hindutvaites could be. In order to make Modi popular if asked to kill a girl he would do it with alacrity, say an Ishrat Jahan, accusing her of plotting to kill Modi. If given Rs. 10 crore and asked to paint Sohrabuddin Shiekh a terrorist and kill him in a fake encounter, he would do it too. If asked to spy on a woman of Mr.Modi’s interests, he would employ the state police to do so 24 hours a day. How will then Mr.Subramaniam, who facilitated the arrest of such a person, be appointed a Supreme Court judge?
Now the information spread by the intelligence bureau and the CBI are similar to tactics of Goebbels. We have earlier seen how the Modi government leaked the IB report about NGOs.
Mr.Modi keeps all his ministers on a tight leash, under his full control, just like Ms. Jayalalitha does. Not that he wants them to remain clean or anything like that – simply to ensure they don’t act against his interests. So in this case too, Mr.Arun Jaitly and Mr.Ravishankar Prasad , friends of Mr.Subramaniam, remain silent spectators in the face of the canards spread by Modi’s propaganada machine. They perfectly know that the allegations against Mr.Gopal Subramaniam are false. But Modi’s minions will not speak out just as none of JJ’s own ever do.
The collegiate system of appointing judges followed in India is not free from shortcomings. Still this system, which has given the nation some of the worst judges, has also produced some of its best. But it is under threat now.
Remember the fate of Special CBI judge JT Utpat, hearing the case of alleged fake-encounter cases of Sohrabuddin Sheikh and Tulsi Prajaptai? A day after he ordered Amit Shah to appear in the court, Utpat was transferred out of Mumbai.
Only the previous week, he had reprimanded Shah’s advocate for filing an exemption application without assigning any reason to it. For his gall out he goes. Clearly the Modi regime is out to subvert the judiciary too, by bringing everyone under its control.
It seems like Mr.Modi will win eventually. People like Justice H.R.Khanna who did not bow down to Indira Gandhi’s wishes, are hard to find now. This is the age of Sadasivams, C.T.Selvams and Karnans, so how can H.R.Khaannas survive?
The so-called Fourth Estate that can stand in the way of Modi’s fascist designs, is looking the other way – if anything some reporters are said to have gleefully acted as the Amit Shahs of the media. Even otherwise servile, it is grovelling even more, feeling intimidated and of course but also eyeing greedily the various favours the federal government can dish out.
It needed an Emergency for Mrs Gandhi to arm-twist the media, but now the Pavlovian drive impels them to crawl and bootlick in sheer fright.
So the ball is squarely in the court of the civil society to check further fascist onslaught in the days to come.
(Translated from the Tamil original by a student volunteer. Thanks a lot friend. May your tribe flourish.)