Subramanium's Decision to Withdraw Consent Hasty

Under the existing law as ruled by the Supreme Court, appointment of its judges is made by a collegium of five judges. The names recommended by them have to be accepted by the executive which, however, can request the collegium to reconsider the names in light of information and material forwarded to the collegium which have a bearing on the suitability of the proposed appointee. Two courses are open to the collegium. It may after considering the information and reasons forwarded by the executive withdraw the proposed name or reiterate its recommendation.

The relevant facts pertaining to the Gopal Subramanium imbroglio are that government accepted three out of the four names recommended by the collegium. Gopal’s name was segregated as it did not meet with the executive’s approval. The crux of the matter is that before the collegium could decide the matter after considering the executive’s reservations and before the Chief Justice of India’s return to India, Gopal wrote a nine-page letter to the CJI and chose to withdraw his consent to his candidature. Thereby the collegium was preempted from exercising its right of reiterating its recommendation of Gopal and which it most probably would have done. In that eventuality, the supremacy of the judiciary would have been maintained and Gopal, my first junior and a dear friend, would have adorned the Supreme Court Bench. Gopal’s decision of withdrawing his consent was hasty. The repeated insinuation that government’s objection to Gopal’s appointment was because of his role as amicus curie in the Sohrabuddin case wherein he strongly castigated the Gujarat government and its high functionaries is unjustified because Rohinton Nariman in a case against the Gujarat government in the apex court with regard to appointment of Gujarat Lokayukt had forcibly argued against the Gujarat government and also accused CM Narendra Modi of mala fides. Nonetheless, the government rightly did not object on that ground which falsifies the insinuation based on Gopal’s advocacy. The sad part is that the apex court has been deprived of an accomplished lawyer and a fine human being.

Worrying Trends: The European Court of Human Rights in its recent majority judgment of 15 to 2 upheld the ban imposed by the French government on the wearing of full-face veil, burqa, in public on the ground that the ban was imposed in the interest of social cohesion and it did not violate freedom of religion of the person. The two dissenting judges ruled that the ban violated the lady’s freedom of conscience and religion, and were not impressed by security considerations advanced by the French government in view of the petitioner’s statement in court that she was willing to remove the burqa whenever required for security reasons. It is incomprehensible how wearing of a full-veil burqa is detrimental to social cohesion. The majority judgment will intensify the growing perception that the West is anti-Islamic.

China’s ban on fasting in some of its provinces during Ramzan is a clear encroachment on religious freedom of Muslims. Such moves antagonise the Muslim community and provide fertile ground for the jihadis to wage war against so-called anti-Islamic states in which India is included. According to US-based Pakistani author Arif Jamal, Pakistan-based LeT and its front group JuD, enjoying backing of the military, are going stronger and now trying to acquire weapons of mass destruction. According to Jamal, the Pakistan government is unlikely to take any action against LeT or JuD or its leader Hafiz Saeed because of its goal to bleed India in times of peace and at the same time to avoid war with India. Even if Jamal’s apprehensions are exaggerated, the possibility of some part of Pakistan’s nuclear arsenal falling into the hands of the Taliban or other fanatical jihadis cannot be ruled out. It is imperative that effective measures are put in place to counter such horrendous eventuality. 

Sorabjee is a former Attorney General of India

solisorabjee@gmail.com