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 ...

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

Amisha Shrivastava

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