Centre Wants To Appoint Persons Aligned With Its Views As Judges : Justice Madan Lokur | Interview

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.Edited excerpts from the interview.Memorandum of Procedure for appointment of judgesFirstly, 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 elevationJustice 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 processJustice 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 processJustice 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...

Centre Wants To Appoint Persons Aligned With Its Views As Judges : Justice Madan Lokur | Interview

Manu Sebastian

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