New Delhi: In a thought-provoking session at the Bhopal Literature and Art Festival, former Supreme Court Justice Madan B. Lokur delved into pressing issues concerning the Indian judiciary, raising critical questions about case allocation, constitutional morality, and the role of the judiciary in upholding democratic values.
Questioning Case Allocation in the Judiciary
Justice Lokur, in his address, scrutinized the rationale behind the allocation of certain types of cases to specific judges. He expressed concern over this practice, stating,
“Why should some kinds of cases go only to a particular judge who also does not happen to be a senior judge? Who happens to be a junior judge….That created a bit of a problem. That problem, unfortunately, is persisting. The perception is that the cases that are sensitive are going only to a particular judge or a particular set of judges and not to others….that perception creates a problem, that why the master of the roster, i.e., the CJI, is doing this.”
He emphasized the principle of equality among judges, arguing against arbitrary case assignments:
“Arbitrariness is the antithesis of equality. If all judges are equal, you cannot arbitrarily say that, well, certain kinds of cases will go to a particular judge and to nobody else.”
The Exclusion of the CJI from Election Commissioner Selection
Justice Lokur criticized the recent legislative change that removed the Chief Justice of India from the committee for selecting the Chief Election Commissioner and Election Commissioners. He referred to the constituent assembly debates, highlighting the agreed-upon need for an independent body to oversee elections, a fundamental feature of the Constitution
“Yes, you are right. In the constituent assembly, there were debates about the election commission… But the most important thing was that everybody in the constituent assembly said that the executive should not be involved in the appointment of the CEC and the ECs. Which is to say that it has to be some independent body…free and fair elections is one of the basic features of our constitution,”
he remarked.
Collegium Recommendations and Government Inaction
Justice Lokur also addressed the issue of the government not acting on collegium recommendations, linking it to constitutional morality. He expressed his concern, stating,
“The Problem that has been arising in the recent past is that the government says that you (Supreme Court) have made a recommendation, we are not going to act upon it. They sit on the file for years. Even though the SC collegium has said that this person should be appointed, we have seen your objection, we do not agree with your objection, it is our view that which we reiterate; yet, the government says that no, we are not going to appoint that person. That is where the constitutional morality comes in.”
The Case of Advocate Saurabh Kirpal
Highlighting the case of Advocate Saurabh Kirpal, whose appointment as a judge was stalled, presumably due to his sexual orientation, Justice Lokur questioned the relevance of sexual orientation in judicial appointments.
“There is a person who has been recommended for the judge for Delhi HC….The perception is that the government is saying that we are not going to appoint this person because he is gay. Now, if he is gay, does it mean that he cannot be a judge? Is there some connection between the sexual orientation of a person and being able to give justice?”
he asked, challenging the apparent bias and questioning the government’s reluctance in this matter.
Governors and State Legislation
Justice Lokur also criticized the role of governors in delaying decisions on bills passed by state legislatures. He pointed out that such inaction goes against constitutional morality, stating,
“What has been happening is that the governor has been sitting over these bills, saying that I am not going to do anything. I am not going to tell you it is unconstitutional, I am not going to say that it is contrary to law enacted by the parliament….that is not constitutional morality. The Constitution requires that you have to take a decision. The Constitution does not say that you have to give your opinion within 10 or 15 days. The constitution says that you have to take a view within a reasonable period of time. What is a reasonable period of time?…It could never be one year; it could never be two years.”
Delay in Deciding Disqualification Petitions
Adding to his critique, Justice Lokur mentioned the delay in deciding disqualification petitions under the Tenth Schedule of the Constitution by the Maharashtra Speaker. He emphasized that such delays are not in line with constitutional morality and proper governance.
Post-Retirement Appointments of Judges
Addressing the issue of post-retirement appointments, Justice Lokur recalled the instance of Justice MC Chagla, who was appointed as a Union Minister. He noted that times have changed, and such appointments now raise questions about the integrity and independence of the judiciary.
Conclusion
Justice Lokur’s insights at the Bhopal Literature and Art Festival highlight significant challenges in the Indian judicial system. His remarks on case allocation, the role of the judiciary in upholding constitutional morality, and the need for independence in judicial appointments underscore the ongoing debate about judicial transparency, fairness, and the rule of law in India. His call for a reevaluation of these practices resonates with the broader concerns about maintaining the integrity and autonomy of the judiciary in a democratic society.
