This is not the first time that a collegium recommendation has been returned. In the past also, names for appointment as judges were returned by the government in the wake of unfavourable reports by the Intelligence Bureau (IB).
But what distinguishes Subramanium's case from the others is that previously, there were no smear campaigns by way of selective leaks questioning the integrity of a person recommended to be a judge of the apex court.
That the recommendation of Subramanium would not have brought cheer to some quarters was never in doubt from day one. It was hard for some to forget the way he carried out his responsibilities as amicus curiae in Sohrabiddin Sheikh staged-shootout case.
On May 15, the IB gave Subramanium a clean chit - just a day before the results of the general election were declared. Then, a CBI report cast a shadow on his suitability. On May 22, the IB endorsed this report.
Based on these reports, the government segregated Subramanium's name from the four recommended by the collegium and returned it to the chief justice. This has been questioned by none other than former Chief Justice M.N.Venkatachaliah, who has said that if the government differed, it should have sent the entire file back to the chief justice for reconsideration by the collegium.
The question is: Did the government take the consent of the chief justice - may be oral - before segregating Subramanium's name or was it a unilateral decision?
If it is the latter then it is not in conformity with the verdict of the apex court in a 1993 case out of which the collegium system flowed.
The apex court, by its October 6, 1993, judgment, had said: "In exceptional cases alone, for stated strong cogent reasons, disclosed to the chief justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the chief justice of India may not be made."
It had further said: "However, if the stated reasons are not accepted by the chief justice of India and the other judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the chief justice of India, the appointment should be made as a healthy convention."
The judgement also reiterated the primacy of the chief justice in the appointment of Supreme Court and high court judges.
Thus no segregation can be done without the express consent of the chief justice of India.
With Subramanium withdrawing his consent, the question of the apex court collegium reiterating its recommendation appears to be a remote possibility but the question is whether the material relied upon by the government to return the recommendation to appoint him a judge is cogent or not.
The first allegation is that Subramanium arranged a meeting between CBI officers engaged with the 2G investigation and counsel for the then telecom minister, A. Raja, an accused in the 2G scam. The second allegation is that Subramanium used lobbyist Nira Radia's office to get the membership of a swimming club.
These are the two allegations that Subramanium has addressed in his letter to the Chief Justice of India, Justice R.M. Lodha, withdrawing his consent.
Subramanium has denied the allegation that he ever convened a meeting of CBI officers with Raja's counsel and second that his membership of the swimming club was arranged by the then additional solicitor general Parag P. Tripathi.
On the purported conversation between Radia and an industrialist where Subramanium's name surfaces, eminent jurist Shanti Bushan says that it shows him (Subramanium) in a very favourable light. In the tape, Radia says: "I am not sure that he (Subramaniam) will agree to what they say. He is an upright person. I think Raja will be trying to get the AG".
Notwithstanding any damning evidence against Subramanium that has still not come in the public domain, all that has appeared so far could not be said to be "strong cogent reasons" to return his recommendation for consideration by the apex court collegium.
Indeed, the Supreme Court not getting Subramanium as a judge is unfortunate, but it is not a reflection on his any dark side which he has none but what Bhushan says is that it is the price he has paid for taking a "tough stand in the Sohrabuddin, Kauser Bi and Tulsiram Prajapati fake gunbattle cases, in which Amit Shah, the blue-eyed boy of Narendra Modi, has been charge-sheeted."
Subramanium's integrity, competence and capabilities are vouched by none other than former Chief Justices V.R. Krishna Iyer and M.N. Venkatachaliah.
One hopes that the collegium would take a position that will give apex court a judge which according to Justice P.N. Baghwati "should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says: "Be you ever so high, the law is above you."
(29.06.2014 - Parmod Kumar can be contacted at email@example.com)