When the Judiciary is in charge of its own appointments, something more substantial than a report based on innuendo is required before impugning a candidate’s integrity

Gopal Subramanium has been publically borked. Bork as a verb is defined by the Oxford English Dictionary as U.S. political slang, meaning: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

Robert Bork was Solicitor General of the United States under President Nixon. In 1973, when Nixon wanted to fire Archibald Cox, the Special Prosecutor in Watergate, Bork passed the necessary orders after the Attorney General and the Deputy Attorney General had declined to do so. He later explained that he took the decision as he felt constitutionally bound by Presidential directive. The consequences of this action and his other political positions came back to haunt him in 1987, when President Reagan nominated him to be judge of the U.S. Supreme Court, a move opposed by Democrats and some Republicans.

The proposed appointment had Senator Edward Kennedy memorably denouncing Bork’s appointment from the Senate floor: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy...” Bork did not consider any of these lines to be true, but the attack was deadly effective. Bork’s candidature failed on the Senate floor; 58 voted against his confirmation and 42 in favour of it. Six Republicans voted against his appointment.

Gopal Subramanium did not deserve a Borking. He would have been an asset to the country as a Supreme Court judge. He was literally born and brought up in the Supreme Court as his father was one of the Court’s earliest regular practitioners. Mr. Subramanium and Rohinton Nariman were among the youngest persons to be designated as senior advocates by the Supreme Court. A lawyer highly regarded by the late Justice J.S. Verma, it was Mr. Subramanium and his teams’ extraordinary effort which formed the basis of the Verma report which led to amendments to the rape law after the Delhi gang rape incident in Delhi in 2012. Mr. Subramanium has served as Additional Solicitor General and Solicitor General for over eight years. He worked on Ajmal Kasab’s appeal for a nominal fee of one rupee. Recently, acting as amicus curiae in safeguarding the wealth of the Anantha Padmanabhaswamy temple, Mr. Subramanium went out of his way in cleaning its sacred tank and spending nearly a crore from his own pocket. The Central Bureau of Investigation, which trusted him with cases of national importance, such as those of Ajmal Kasab and David Headley, has now unfairly chosen to weasel out by giving the recent events a colour which they did not originally possess.

Based on reports by the CBI and Intelligence Bureau, the government had returned the recommendation of the Supreme Court for reconsideration by the collegium. The IB report cited an old complaint against Mr. Subramanium by two CBI officers in the 2G probe along with some references made about him in the Radia tapes. The report seemed to be procured on purpose — to be used as a convenient excuse to avoid an inconvenient appointment. It is no secret that the unstated reason for the government’s opposition was that Mr. Subramanium was the amicus curiae in the Sohrabuddin encounter case (Sohrabuddin Sheikh was prosecuted by the same CBI) and in other cases, where senior figures of the current government are allegedly complicit. The government probably apprehended a certain sub-conscious bias against it on Mr. Subramanium’s part.

The government is mistaken in its belief because even if appointed, Mr. Subramanium would have recused himself in all these matters. However, Mr. Subramanium’s withdrawal of consent to be a Supreme Court judge has rendered the question moot. In a country where the Judiciary is in charge of its own appointments, something more substantial than an IB report based on innuendo and hearsay is required before impugning the integrity of the candidate and the appointment process.

During the hearings of the second constitution bench of the Advocates-on-Record Case which dealt with procedures for judicial appointments, Justice Kripal from the Supreme Court bench narrated an experience from the Delhi High Court. An IB report in the case of a prospective appointee mentioned that he was a drunkard. The appointment did not go through at that stage, but the Chief Justice of the Delhi High Court knew that the report was not true. When enquiries were made, it turned out that the appointee drank only on occasion while his friends were habitual drinkers. He was nicknamed ‘boozer’ because of the company he kept, even though he stayed sober. IB sleuths who were charged with finding out more information about the man stumbled on this nickname and drew a damning conclusion. The person concerned was later appointed to the Delhi High Court in a subsequent batch of appointments. The injustice to the candidate was temporary in this case, but in Mr. Subramanium’s case the damage is permanent.

This Borking makes the government look like it is seeking a “committed judiciary” in tune with its political philosophy and short-term objectives. Impartiality of a higher judiciary that is vetted and approved is unlikely to be universally accepted. India was ill-served in the past by Mohan Kumaramangalam’s call of the early seventies. Four decades later, it is ill-served by Union Law Minister Ravi Shankar Prasad’s subservience to his party interests. One must remember that the supersession controversy of 1973 had as its inarticulate major premise Indira Gandhi’s desire not to have Justice K.S. Hegde appointed as Chief Justice of India. She won the battle, but the damage caused served as the backdrop to the Emergency and the ADM Jabalpur case, which destroyed her as a democrat.

If engagements as counsel are likely to be seen as disqualifications for judicial office, lawyers of eminence who would have taken unpopular briefs professionally will no longer let their names go forward for consideration. After all it takes great financial sacrifice for a successful lawyer to accept judgeship for a limited period of time. The country will be the loser and not the individual if he is not appointed as a judge. Not very many years ago, before the collegium system was established, Ram Jethmalani had thundered, “There are two kinds of judges — those who know the law and those who know the law minister.” I hope and pray that those days are not coming back.

(Sanjay Hegde is a Supreme Court lawyer.)