India Must Evolve Judicial Independence Standards In Line With International Norms : Justice Madan B Lokur

Former Supreme Court judge Justice Madan B Lokur has called for the evolution of standards for judicial independence in India that align with international norms.

Speaking at the launch of a report titled “Judicial Independence in India: Tipping the Scale” by the International Commission of Jurists (ICJ), Justice Lokur stressed the need for open, free and frank discussions on judicial appointments, delays, transparency, diversity, communalism, and accountability.

“So we need to evolve standards in line with international standards, after a discussion. And we should have an open, free and frank discussion where we can say that, yes, you know what we're doing is right or what we're doing is not right. And how we can change it? And that will encompass just about every case, every issue – delay in hearing cases, passing orders which the government says, “we're not going to follow – bulldozer justice, well, we'll bulldoze the orders of the Supreme Court”. Talk about transparency, talk about diversity, talk about communalism. Appointment of judges or removal of judges, that's also equally important.”

Justice Lokur noted that there is a general international consensus on three essential aspects of judicial appointments: the criteria for appointment, the body responsible for appointments, and the procedure to be followed.

He said the criteria should include competence, integrity, and non-discrimination, including on the basis of religion, caste or political affiliation. He pointed out that while in India there is emphasis that persons who are appointment do not have political affiliation, international standards allow political affiliation.

Justice Lokur discussed the Memorandum of Procedure (MoP) for the appointment of judges in India, which stipulates a minimum age of 45 years, despite the Constitution requiring only ten years of practice. He flagged concerns about the income threshold criterion in the MoP, noting that it disadvantages lawyers in smaller states who may not meet the income criteria despite their competence.

On the body responsible for appointments, he noted that while some countries follow systems such as elections or executive nominations, others favour judicial councils comprising judges and lawyers to ensure the separation of powers and limit executive influence. He stated that in India, the collegium system continues despite the executive having a significant role in the final appointments, which has led to frequent conflicts between the judiciary and the government.

“So while many of these jurisdictions discussed in the report say that the executive should be kept out of the picture, in India, we have not been able to do that. And now we are having this conflict between the judiciary and the executive about appointments. Because the Judiciary makes a recommendation and the executive says, “no, we're not going to make that appointment””, Justice Lokur highlighted.

Justice Lokur said the procedure for appointments must be transparent. Referring to his experience in Fiji, he said discussions of their judicial appointments are audio recorded. In India, attempts to enhance transparency, such as collegium resolutions citing Intelligence Bureau reports, have faced pushback from the executive, he noted. He referred to the government's objection to the mention of IB reports in collegium resolutions.

“In India, there was, you know, at one point of time when the collegium resolution mentioned why a person is being selected. What is the nature of the nature of report against him or against by the Intelligence Bureau. Then there was a pushback from the executive, “why are you saying this is what the Intelligence Bureau has said?” So the collegium said, “all right, we're not going to discuss what is being said.””

“The fact of the matter is that everybody knows, it's common knowledge that a report is called for from the IB. And if you say that this is what the report of the IB is without disclosing the name of the person who has given the report, how does it matter? But there is a pushback”, he remarked.

Justice Lokur also addressed the issue of judges declaring their assets. He recalled that when he was a judge in the Delhi High Court, the judges had declared assets and published the information on the website, but this practice later discontinued. He noted that some judges began submitting asset declarations in sealed covers to the Chief Justice, and there was no mechanism to enforce public disclosure.

On case allocation, he highlighted the lack of transparency on the rationale behind the assignment of cases to particular judges.

“Transparency in listing of cases. Why should cases go before a particular judge? You want a particular outcome so you send it to a particular judge? What is the system of allocation of cases? Why should a particular judge be allocated criminal cases? Why shouldn't that person be doing civil cases? To some extent, you have to say that, “well, the Chief Justice is entitled to say that Judge A will do criminal cases, Judge B will do civil cases, Judge C will do revenue cases.” Now, if you're going to ask the Chief Justice that, no, you tell me why Judge C is doing revenue cases, there is perhaps no answer”, Justice Lokur pointed out.

He said that transparency must be accompanied by accountability, highlighting instances where judges do not deliver judgments for extended periods or leave cases part-heard.

“Keeping matters part heard for months together, or not delivering judgment for months together, sometimes even years together, is that misconduct? In my view, it certainly is. But there's nothing to say it is misconduct. It is my view. Somebody else can say, “no no, I don't think it's misconduct. It's perfectly alright if you don't deliver judgement for 6 months”, Justice Lokur pointed out.

He referred to a case of a judge who kept around 30 to 40 cases part-heard, and was merely transferred, leaving the burden of re-arguing the cases on litigants and lawyers. He highlighted the absence of consequences for misconduct by judges.

“Some judge makes a speech which is communally inflammatory. And you say, “alright, he's made that speech, we'll tell him that don't make speeches like this.” So, he says, “well, I'll make speeches like this.” What can you do about it?”, Justice Lokur highlighted.

Justice Lokur emphasised the need for either a statute or a binding resolution among judges to regulate judicial conduct and maintain accountability.

“What is the accountability? If a Judge says, “I'm not going to declare my assets”, what are you going to do about it? You can't do a thing, and that's happened for so many years. Many judges have said, “we're not going to declare our assets. Even to be Chief Justice, we're not going to declare.” So, it has to be a combination of both (transparency and accountability). And, that combination of both, I think, can come by some sort of a binding resolution by the judges that “listen, this is what is expected of you.” It could be a statute”, Justice Lokur said.

The ICJ report assesses the independence of the Indian judiciary over the past decade, with a focus on the Supreme Court and limited references to the High Courts. It highlights issues such as lack of transparency in appointments, excessive discretion exercised by the Chief Justice and the executive's effective veto over collegium recommendations.

The report highlights concerns with opaque procedures for the selection, appointment, and transfer of judges, and a lack of accountability mechanisms. It criticises the absence of statutory backing for the in-house procedure developed by the Supreme Court on judicial misconduct and flags post-retirement appointments by the executive as a potential source of bias.

It also raises concerns about judicial administration, including discretionary listing and allocation of cases by the Chief Justice, which in some instances appeared to favour the government.

The ICJ has recommended that a statute be enacted to establish a Judicial Council composed primarily of judges to oversee appointments and transfers, with fixed criteria reflecting India's demographic diversity. It also calls for binding codes of judicial conduct, statutory mechanisms for redressing complaints, and regulation of post-retirement appointments. The report suggests reforms in judicial administration to reduce discretion and arbitrariness in the listing and allocation of cases.