Former Supreme Court judge Justice Madan B Lokur, who was a part of the Supreme Court collegium and one of the members of the bench which delivered the NJAC verdict, was interviewed by Manu Sebastian, Managing Editor of LiveLaw, in the backdrop of the ongoing tussle between the executive and the judiciary regarding the process for judges appointment.
Firstly, Justice Lokur was asked about the status of the MoP. Recently, the Supreme Court said that the MoP approved by the CJI in 2016 is the final one, which the Centre does not seem to be accepting. Justice Lokur explained the MoP status as follows :
Before the NJAC judgment ,there was an MoP in existence of 1999. Whether the MoP that is on the website of the Department of Justice is the 1999 MoP or the 2016 MoP I'm not 100% sure, because I I don't remember what were the significant differences. But anyway, after the NJAC Judgment was delivered, the court felt that some changes are required in the functioning of the collegium and in the Memorandum of Procedure. So the Constitution Branch said that suggestions may be given by the public which can be discussed and probably incorporated in the new MoP. So if I remember correctly, something like 11,500 pages were received and it was obviously a Herculean task sort it out . But two learned senior Advocates- Mr Arvind Datar and Ms Pinky Anand- took up the task on the request of the Supreme Court to sift the suggestions and they gave a report. Attorney General for India at that time said that the drafting of the MoP is the job of the executive and not the job of the Judiciary, which was accepted and a draft was given to the government.
I don't know to what extent those 11 500 suggestions were incorporated, but the Collegium of five judges did go through the the report and sent the draft to the government in 2016. After that, I believe sometime in 2017 July, the government sent a letter to the CJI saying three things. In the winter session of Parliament that year, on the basis of a question that was asked by some Member of Parliament, it was revealed that the Government of India had sent three suggestions or three objections for consideration. It was not known until then and the reply given by the Minister to the Member of Parliament was that, we have sent a letter in July and there has been no response from the Supreme Court. This was actually discussed, if I remember correctly, in 2018 because the existence of the letter came to be known only in December 2017. The Government was told that, listen whatever has been said is final. There was no further response from the Government as far as I'm aware and that MoP has been operational since then. But I don't think there's too much of a difference between the Mop that is on the website of the Department of Justice and the MoP that was sent by the Supreme Court. First of all, I'm not even 100 sure whether it's the same document or a different document.
On Law Minister writing to the CJI seeking the formation of a 'search-cum-evaluation' panel with government nominees to select candidates for elevation
Justice Lokur : In the draft MoP that was sent to the government, I don't remember any search and evaluation committee or any such thing being mentioned. The fact that some changes were required was mentioned in the subsequent judgment, that's when those 11,500 pages were received. But something like a search and evaluation committee or representative of the government- that was never, never the subject matter of discussion.
The MoP is only regarding the procedure to be followed. That's why it is called a Memorandum of Procedure. But the constitution of the collegium is as per there a judgment of the Supreme Court. So nobody can change it except the Supreme Court.
Outsider cannot be in the collegium process
Justice Lokur : What are the details (of the proposal to include government representative) we don't know because that's not been disclosed. For example, what is the role of that representative? What is the level of that representative? Is it going to be the minister? Is it going to be the secretary? Should a person who is representing the government be a member of the collegium?That principle is wrong because the Supreme Court judgment does not postulate an outsider being a member of the collegium. That is something which in principle is wrong. Now assuming it is correct, then further questions will arise. Who is it going to be? What is the role of that person? Does that person have a veto power so on and so forth. But in principle, getting an outsider in the collegium is contrary to the Judgment of the Supreme Court.
Misconception that government has no role in appointment process
Justice Lokur : The government does have a very major role in the appointment of Judges. Let's take the appointment first of judges of the High Court. Now the collegium of the High Court consisting of the Chief Justice and two senior judges make a recommendation. They can make that recommendation after consulting other judges, after consulting lawyers, whoever they want to consult. High Court collegium then send the names to the Chief Minister of the State. As a matter of courtesy, that list is also sent to the Governor of the State. The Chief Minister of the State can raise objections or can make his comments. So can the Governor. Then that list is forwarded by the Chief Minister to the Law minister in the Government of India. They can also process. If they want to say something, they're free to say. Then that entire material is sent to the Supreme Court Collegium. So the Supreme Court Collegium has before it the views of the Collegium of the High Court, it has the views of the Chief Minister of the state, it has the views of the Governor of the State, it has the views of the Government of India and then the Supreme Court. The Chief Justice of India will write to judges of the Supreme Court who have been associated with that particular High Court and their views are taken.
And once all that material is there, the Collegium takes a decision. There is an elaborate process. I don't see how the Government of India can say that it has no role to play. It does have a role to play. The State Chief Minister has a role to play. So it's not that the" judges appointing judges" kind of thing. Whatever the Government of India has to say, it has already said and the Supreme Court Collegium has taken a decision on that. There may be a case where there might be some additional information that has come in after the decision has been conveyed by the Supreme Court. There might be some new material. When there is a new material, the Centre sends the file back to the collegium and then the collegium looks at that new material and then takes a call. They may say this new material is important and we should not have made that recommendation or it says that no we don't think this new material is relevant and we reiterate the recommendation that has been made. Then the government must accept that. So that that is how the system works.
Question : An interesting aspect of the Supreme Court collegium's latest State statements is that it has exposed the priorities of the Central Government. In one case, the objection was to the sexual orientation of a candidate. It was said that his support for LGBT rights is a ground to suspect bias. In another case, the social media posts of a candidate were cited. As regards another candidate, the fact that he shared an article critical of the Prime Minister was raised as an objection. Do you think that these objections indicate that that the Centre wants judges who who are aligned with its ideologies and principles and who may not criticise the executive?
Justice Lokur : Yes, it's quite clear. It's quite clear they want persons who are aligned with their kind of views. Now the sexual orientation case, does it mean that this particular judge during his entire judicial career will only hear cases of sexual orientation or LGBT rights? He will not hear any other case and therefore he's biased? Isn't that ridiculous? It's not that he's going to hear only one one case or the same type of case throughout his judicial career.
And somebody has criticised the Prime Minister? That's an expression of a view. I think freedom of expression is important. Freedom of speech is important and today somebody may be critical about the Prime Minister. Tomorrow that same person may not be critical about the Prime Minister. That's also possible. So why can't people express their views?
Question : Do you think that the government's inquiry in the entire process is only limited to ascertaining whether the person is aligned with the government's views and policies and not whether the person is suitable for judgeship?
Yes. You see, from whatever has been disclosed in the recent past, the government does not know or does not appear to know why it is objecting to a particular person. It could be on grounds of ideology, it could be because I have the power to oppose therefore I will oppose. For example, in the case of the Calcutta recommendations, there's no ideology because, there's no reason given, there's nothing given why was it sent back. So we really don't know what is going on in the mind of the government except perhaps that they want people of their own choice, a committed judiciary.