PRASAD DEFIES SUPREME COURT

Geopolitical notes from India

M D Nalapat

Friday, June 27, 2014 – Ravi Shankar Prasad, Union Law Minister of India since May 26,2014, is both a brilliant lawyer as well as a shrewd politician. Since 1993,the Supreme Court has made itself independent of the executive by decreeing that a Collegium composed of the Chief Justice of the Supreme Court of India (SC) and the four senior most judges of the Court would have the exclusive right to nominate judges to the court. In 1998,this right was reiterated by the Court when areference about its maintainability was made by then President of India,K R Narayanan. It needs to be stressed that the Constitution of India nowhere mentions such a system, and indeed this columnist (in the Sunday Guardian) has characterised the Collegium system as being based on an “invisible” constitution (which was relied on by the then Chief Justice J S Verma in 1993 when he introduced the Collegium system through an SC judgement).

Since that time, every elected Government of India has chafed under the system, because of the fact that it had – because of Chief Justice Verma’s historic verdict – got zero power over the Court. Over the past two decades, the Supreme Court of India has passed judgement after judgment which has gone completely contrary to the wishes of the government. Indeed,several verdicts of the Court have led to a situation of crisis and even paralysis in the functioning of the government. Fear of the Supreme Court was among the primary reasons why the previous government led by Manmohan Singh slowed down decision-taking to a crawl. Hundreds of projects have been held up or scrapped by court verdicts, and thus far the government has had to stomach such verdicts as the Collegium system made the highest court in the land impervious to the influence of the Government of India Prime Minister Narendra Modi won the 2014 elections because voters believed that he would provide decisive governance, unlike the Sonia-Manmohan duo, who floundered from crisis to crisis, in the process holding up projects and speedy decisions which are essential to high rates of growth. Manmohan Singh, and Sonia Gandhi were timid to the point of paralysis when it came to any project or policy which got adverse mention in even a television channel. The consequence was that entire industries went into decline because of policy paralysis, while overall the annual rate of growth of the economy fell by half from its earlier level of 9%. Clearly, Law Minister Prasad was of the view that the obstacles to the smooth and speedy functioning of the government needed to get removed, and for this to happen, the powers of the government had to get restored to the same elevated levels that were extant during the periods in office of Jawaharlal Nehru and Indira Gandhi, two Prime Ministers who were known to take untrammelled and decisive action whenever they judged it necessary. A week ago, the Modi government made legal history by refusing to endorse a name unanimously approved by the Supreme Court Collegium for appointment as a judge of the highest court in the land.

Former Solicitor-General Gopal Subramanium was recommended for elevation, but the Law Ministry disagreed, and conveyed its view to the Court. The decision ( to reject the name of Gopal Subramanium as Judge of the Supreme Court) was taken by Law Minister Prasad and not the Prime Minister, who merely ratified the same. News reports have placed the onus of the decision on the PM, but Narendra Modi is known to have immense respect for the judiciary and hence it is difficult to believe that he would have taken the initiative in blocking the choice of an individual who was the unanimous choice for judgeship of the Chief Justice of India as well as the four senior most judges of the Court. However, the PM decided to stand by his Law Minister in the matter. Of the four names recommended by the Collegium, only three names were forwarded to the President of India, who issued the warrants of appointment after getting only these names for such appointment.

By the information available to this columnist, Gopal Subramanium is an outstanding lawyer with a reputation for independence and integrity. But it is no surprise that the Intelligence Bureau (IB) and the Central Bureau of Investigation (CBI) gave negative verdicts about him, for since Gopal Subramanium gave a written opinion in 2007 about Lord Ram,among the most venerated of names in the mythology of India and considered God by the Hindu community. Then the Additional Solicitor-General, he presented the view of the Archaelogical Survey of

India (ASI) that there was no concrete evidence to establish the existence of Lord Ram and other figures mentioned in the ancient epic, the Mahabharata. This affidavit, which was considered heretical by many Hindus (and incidentally Gopal Subramanium is a devout Hindu), created such a public uproar that it was hurriedly withdrawn by the Manmohan Singh government, despite its aversion to Hindutva and its obsessive focus on minorities rather than on the Hindu majority.

It is difficult to enter into the thinking of Law Minister when he refused to accept the unanimous recommendation of the Supreme Court of India to make the distinguished lawyer Gopal Subramanium a judge of the Supreme Court. Should he be made a judge, he would become Chief Justice of India within nine years,in accordance with the principle of seniority. However, it is clear that by Subramanium’s affidavit forwarding an ASI report which cast doubt on the existence of Lord Ram, the former Solicitor-General fell foul of several devout Hindus, the core constituency of the ruling Bharatiya Janata Party (BJP).Hence the Law Minster’s decision has been greeted with appreciation by this huge group of voters. However, the to reject a name suggested by the Collegium goes far beyond Gopal Subramanium. The innuendos made against the former Solicitor-General so distressed him that he asked Chief Justice Lodha of the Supreme Court to withdraw his name from consideration as an SC judge. The matter is now back in the court of the Collegium of the Supreme Court of India.

Should the Collegium accept the Law Ministry stance that Gopal Subramanium remain on the Bar rather than move to the Bench (in the manner decided upon by the Supreme Court Collegium), the consequences would be immense of such an outcome on both the speed as well the chemistry of governance, as well as on the relationship between the Executive and the Judiciary in India. After first getting a veto on judicial appointments through securing for itself the power to reject Collegium recommendations, the next step would logically be a return to the earlier system of the Executive deciding who will be judges of the High Courts and the Supreme Court, both institutions that are respected in India for their quality and competence.

—The writer is Vice-Chair, Manipal Advanced Research Group, UNESCO Peace Chair & Professor of Geopolitics, Manipal University, Haryana State, India.

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