(Harish Khare is a senior journalist, commentator and a research scholar)The Chief Justice of India, R.M. Lodha has lived up to the demands of his institutional dharma. He has made public his displeasure over the Modi Sarkar's decision not to honor the Supreme Court in the matter of elevating senior advocate Gopal Subramanium to the apex court. Just when everybody was beginning to get resigned to the Modi Sarkar using its honeymoon period to take liberties with institutional boundaries, the Chief Justice has let it be known that at least the judiciary is not overawed with the new 'historic' mandate.
On its part, the government has, expectedly, been politically correct in routinely affirming its respect for the judiciary and its independence. Indeed the new dispensation may get some support from sober quarters if it were to make a case for correcting what many have come to perceive as too much of an imbalance in the executive-judiciary equation. After all, the judiciary began over-flexing its muscle when the coalition arrangements produced weak governments in New Delhi; it was during the last days of a much weakened Narasimha Rao government that the judiciary started its experiments with over-reach, and ended up, during the United Front Government days, shutting the executive out of judicial appointments.
And now that there is a single party majority regime at the Centre, a re-calibration of the lop-sided equation would suggest itself. In the last five years, the apex court has got used to practicing what is called "judicial over-reach," over and above what a vigilant judiciary should be doing to rein in a rampant executive. An intellectually robust argument can be made for redrawing the boundary walls between the judiciary and the executive.
However, the Modi Sarkar has lost a historic opportunity. It was ill-advised to take a stand on Gopal Subramanium's suitability. The manner in which an investigative agency's presumed report [unfavorable to Subramanium] was leaked to the media suggested a "dirty-trick department" sleight of hand. There was something less than honorable about it. The whole operation reeked of second-rate minds at work. Perhaps the Modi Sarkar was sending out a signal to all other institutional players that it was not afraid to play rough with the constitutionally authorized speed-breakers.
But the capsizing of Gopal Subramanium's elevation to the bench is particularly distasteful and alarming on another count. It has been suggested that the new government has no reason to like the senior advocate, particularly given his association with the investigation in the Sohrabuddin encounter case. Leading lights of the new regime were suspected to be implicated in that sordid affair - and that can of worms is not yet capped. The new dispensation simply could not take the risk of having him on the bench. In the process, vulnerability has been advertised.
It is somewhat inexplicable that so early in its innings the Modi Sarkar has revealed its low hand. What is not clear is whether the new prime minister understood that he was subtly being nudged into an avoidable confrontation with the judiciary. As it is, the judicial fraternity - judges, law officers and senior advocates - is an intensely divided and partisan crowd, which pretends to play the "let the law take its course" game fairly and scrupulously, but, personal likes and dislikes and chamber loyalties abound. By vetoing the Gopal Subramanium nomination the Modi Sarkar has set the cat among the judicial pigeons. Consequences will follow.
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