NEW DELHI: Chief Justice of India RM Lodha has chided the government for scuttling the candidature of former solicitor-general Gopal Subramanium to the Supreme Court, his very public rebuke of the Modi-led administration so early in its tenure leaving it vulnerable to accusations that it was trampling on the judiciary’s independence.



With an unusually strong declaration that the “independence of judiciary will never be compromised”, Lodha on Tuesday hit out at the government’s decision to segregate Subramanium’s name from a SC-provided list of four persons for appointment as judges to the top court, saying the “unilateral” segregation was done without his “knowledge and concurrence” and was “not proper”.



“Segregation, unilaterally done by the executive without my knowledge and concurrence, was not proper. This is very, very unfortunate,” he said at a function organised by the Supreme Court Bar Association (SCBA) to honour Justice BS Chauhan, who retired on Tuesday. It was the first time that the chief justice was speaking on an issue that has ballooned into a controversy for the month-old Narendra Modi government.



Unable to Convince Subramanium



The issue has appeared to pit the new government on collision course with the judiciary and provided ammunition for its critics in the legal fraternity and opposition parties.



The chief justice also expressed “shock” and disappointment over Subramanium’s move to withdraw his consent to be a Supreme Court judge, which the senior advocate did last week amid a flurry of negative reports against him in the media that were ostensibly attributed to the government.



Subramanium withdrew his consent on June 25 by way of a letter to the chief justice, who was overseas at that time and returned on June 28. Saying that he was speaking because he felt he “owed an explanation” to the bar, Lodha said he had spoken to Subramanium on June 24 and told him that he would take the matter forward upon his return.



However, he was “hugely shocked” to learn that Subramanium had gone public with his letter which among things touted the “segregation” of his name from the quartet proposed to be elevated as an attack on the judiciary’s independence and lamented the judiciary’s failure to back him. The CJI said that neither he nor the judiciary would ever compromise on its independence.



“I have fought for judicial independence for the last 20 years and for me this is a subject which is nonnegotiable… At no cost will the independence of the judiciary be allowed to be compromised. I will not hold office for even a second if I feel that the independence of the institution… has been compromised. What is more precious for me is the institution for which I have worked as a chief justice of high court, judge of Supreme Court and CJI,” he added.



“I fail to understand how the appointment to a high constitutional position has been dealt with (by the government) in a casual manner,” he said in an extempore speech.Lawyers said the court should not accept this blow to its independence. “It is heartening to see the CJI speak of judicial independence.



He should not stop there. He should go ahead without consent of Gopal Subramanium and send Subramanium’s name back so as to vindicate the judiciary’s independence and Gopal Subramanium’s honour,” said senior Supreme Court lawyer Dushyant Dave.



But the chief justice gave a clear indication that such a step was unlikely.He said upon his return he called Subramanium over and spent 75 minutes trying to convince him to take back his letter, which the senior advocate refused to do.“I requested him to withdraw his June 25 letter so that I could take up the matter with other collegium judges for reconsideration.



Mr Gopal Subramanium said he would respond the next day. On June 29, I received a sixline letter from him reiterating his stand to withdraw his consent,” the CJI said.



“In view of this, the proposal (for recommending his name by the collegium) cannot be reconsidered. I discussed the issue with the members of the collegium and two future CJIs and felt there was no point in pursuing the matter further.”



Lodha’s remarks mark the first criticism of the BJP government, which came to power in May in a landslide victory. Its predecessor, the Congress-led UPA, had been the subject of several sharp judicial observations, including by the chief justice, who has been hearing the cases involving coal block allocations.Union Law Minister Ravi Shankar Prasad refused to comment on Lodha’s remarks.



The chief justice’s remarks could set the tone for the future of the relationship between the new government and the judiciary. With many more vacancies set to arise in the court in the next year, both sides will have to grapple with the complexities of the collegium-based system of judge appointments in which the judiciary has the upper hand in appointments.



The judiciary will be loath to give up a power it has enjoyed for decades now, while the government will be keen to dust up a UPA-drafted law that could take this power away and vest it in amore broad-based system which also gives the executive a say in the process.Under the current collegium system, the government can only send a name back for reconsideration by the collegium if it has reservations about the name, but will have to accept it if the collegium chooses to send it back.



This is what some lawyers say prompted the government to selectively leak adverse reports on Subramanium in the media. In his letter to the chief justice withdrawing his consent, Subramanium has lamented 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”.



“I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. The court owes me, in the very least, a clear statement of confidence although my personal character is not dependent 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.”