The CJI also severely criticized Subramanium for making public his letter withdrawing consent to become a judge while casting doubts about the judiciary's independence.
At the farewell function for Justice BS Chauhan, the CJI expressed serious reservations over the manner in which the Centre segregated Subramanium's name from the other three — RF Nariman and chief justices Adarsh Goel and Arun Misra — without his consent. "I do not approve of it (the segregation). It was done without my knowledge and consent," the CJI said.
Sources in the government, however, defended the decision to seek a reconsideration of the recommendation to appoint Subramanium as a SC judge." "We exercised the right we have got under the Constitution", said a senior government functionary.
The Centre had cited adverse CBI and IB reports to return Subramanium's name to the collegium at a time when Justice Lodha was abroad. The CJI said after learning about the development, he had on June 25 talked to Subramanium and told him to wait for his return on June 28. But, Subramanium wrote a 9-page letter to the CJI on June 25 itself and the letter has since been in public domain.
Subramanium accused the Centre of trying to slight the judiciary by showing its unwillingness to appoint independent-minded people as judge of the SC. He had also said: "I am, however, unable to dispel the sense of unease that the judiciary has failed to assert its independence by respecting likes and dislikes of the executive."
Gopal Subramanium (front) during one of his visits to the Padmanabhaswamy temple in Thiruvananthapuram as amicus curie of the Supreme Court. (TOI file photo by Rakesh Nair)
The CJI said he was shocked by the letter that cast an aspersion on the independence of judiciary, asserting that as Chief Justice of India it was his primary duty to maintain the independence of judiciary.
"The day I will feel that I am not being able to maintain the independence of judiciary, I will have no right to occupy the post of CJI," he said.
When contacted Union law minister Ravishankar Prasad refused to react to CJI's criticism for segregating Subramanium from other names recommended by SC collegium for appointment as judges. "My government and I have the highest regard for judiciary and the Chief Justice. I don't wish to say anything beyond this."
Chief Justice of India RM Lodha. (TOI file photo by Mohammed Ilyas)
Sources in the government, however, expressed surprise over the CJI's public criticism. "Government has the right to be consulted and seek a review. We have merely exercised that right", said a senior government functionary.
They also rebutted the allegation that government did not send to the President the file seeking the reconsideration of recommendation for Subramanium's appointment. "It was sent along with the file regarding the approval of the 3 other recommendations made by the collegium, and was vetted by Prime Minister and President," sources asserted.
Sources also emphasized that the practice of segregation predates the Modi government. "It did not begin with us. In 2009 for instance, the SC collegium recommended the elevation of Justices Swatanter Kumar and CK Prasad. But while the recommendation for Justice Kumar was immediately cleared, the elevation of Justice Prasad was delayed because of a fictitious complaint. Then Justice PD Dinakaran was delinked from other recommendations. There are 4-5 similar cases with regard to recommendations for appointment of HC judges," they said.
The CJI said he had told Subramanium to wait till his return to India. "After I came back, I had a 75-minute talk with him on June 28. I told him that if he withdrew the withdrawal of his consent for becoming a judge, then I can place his name for reconsideration before the collegium. He said he would respond by tomorrow (June 29)," the CJI said.
On June 29, Subramanium had sent a 30-word regret letter to the CJI, who read it out word by word in the farewell function. As Subramanium is unwilling to become a judge of the SC, the matter stand closed now, the CJI said.
It is a matter of time that the CJI would administer oath of office to the other three — Nariman and Justices Goel and Misra — as judges of the SC. Their swearing-in is likely this week, though no date has been fixed.
The CJI also said that his proposal for keeping the courts open 365 days a year had been opposed by the Bar Council of India and other lawyers' bodies but refused to take criticism that he had not consulted his colleagues on the issue.
He said he had written to the judges of the Supreme Court and the chief justices of the high courts seeking their views on the issue. "If this is not consultation than what is?" he asked.
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