Justice Lokur Bats For Transparency In Collegium Decisions, Criticises Former CJI Gogoi For A 'Made Up' Story In His Memoir

Justice (retd.) Madan Lokur, a former judge of the Supreme Court, in an address at a public meeting in Bhubaneswar last week said the apex court and high court collegiums should publicly disclose the factors taken into consideration for recommending a person's elevation to the bench.

The retired judge was speaking about 'Transparency and Accountability in the Judiciary' on September 18, 2022 at a public meeting on 'Tackling corruption: towards transparent and accountable governance'.

"In my view, the meetings of the collegium, whether it is the High Court or the Supreme Court, should be transparent, which is to say that it is not as if there should be a Camera when the discussions are going on, but what are the discussions that have taken place? That should be placed on record and it should be made available when some person has been recommended for appointment as to what are the factors that have been taken into consideration for making that appointment. The question is not of rejection or saying that 'no, this person is not fit to be appointed'; The question is who have you appointed and why are you appointing that person?" said Lokur.

Lokur particularly referred to the recommendations made by High Court collegiums and said, "When the High Court makes a recommendation of persons to be appointed as judges, I see absolutely no reason why the names of those persons should not be disclosed because everybody knows it in any case. They know today or tomorrow or day after tomorrow, this is practically experienced and it is not something which is a secret or something. It is an open secret. Everybody knows who is recommended".

Speaking on the aspect of elevations from district courts, Lokur said, "You also have instances of district judges who have to be appointed to the High Court as High Court judges. Very often, senior most persons are superseded. Why are they superseded, we don't know. We need not know because that is in essense of a rejection. But why has somebody else who is a junior been appointed as a judge of the High Court, overlooking the two or three or five senior persons? As citizens of the country, we have a right to know why this should happen because we are governed by the rule of law. Those persons will deliver judgments and we must know that it is persons of integrity who are being appointed."

Lokur also said a similar thing happens when judges are appointed in the Supreme Court by superseding others.

"What is the reason for that? Again as a citizen, I think we have the right to know that. When number 15 is appointed, Number 1 to 14 have been rejected- why?. Number 16 to 29 have not been recommended, why? This is all a facet of the right to information, the right to know, who are the people who are going to deliver judgments in a case which is filed by anyone of us, why have these people been selected as against other persons who are senior to them, who have more experience and in many cases persons who are much better?" he said.

Particularly referring to the non-elevation of Justice Akil Kureshi - who retired as Chief Justice of the Rajasthan High Court, Lokur said one can only guess why he was not appointed in the Supreme Court.

"We can guess that this is the reason why he was not appointed. But these are all rumours. We don't know what is the fact, why he has been overlooked, why is it that somebody who is much junior to him has been taken up? What is so great or good about that junior which you are finding is lacking in Justice Akil Kureshi, the man of great integrity, a man of great wisdom," he added.

Lokur also said that there are several instances where judges had to face consequences because of their judicial decisions. "We had a judge in the Delhi High Court (Justice S. Muralidhar) who gave one judgement, not even a judgement, it was an interim order, when we had riots in Delhi, the judge said that people who have been injured should be treated in the hospital. What happened? At 11:30 in the night, he was transferred out of Delhi," he said.

The retired apex court also cited an example from the High Court in Telangana where two judges of the collegium on certain recommendations differed with the Chief Justice and reportedly were transferred soon thereafter.

"The chief Justice said that 'I am the one who has to decide, I am the one who has to make the recommendation, so you give your objections in writing and I will send it to the Supreme Court for consideration'. Before that was done, before the recommendations were actually sent, the two judges who had disagreed were transferred out. They have orally said we don't agree with the recommendations made by You, then one person was transferred out to some High Court, the other was transferred to some other High Court," said Lokur, adding the judges who replaced those two agreed with the Chief Justice.

Lokur further said, "So how the collegium functions, what really happens in the collegium, we don't need a video recording to show what is happening and this is not what is happening, but we need to show what are the essential factors that are taken into consideration, why has a particular person been recommended, what are the factors that you have taken into consideration, that is a very important aspect of the right to information".

On Former CJI Ranjan Gogoi's book 'Justice for the Judge: An Autobiography', Justice Lokur said the author disclosed certain collegium-related information in his memoir but the same was a "made up story".

"Look, how strange it is- on the one hand, all of us are told that what happens in the collegium is secret, you should not know anything about it, it is completely opaque, not transparent, then you have a Chief Justice of India who writes in his book that this is what happened in the collegium. What happens to the secrecy aspect?"

Continuing, Justice Lokur said, "Would you call him a whistleblower? A person who has betrayed the confidence of the collegium and has disclosed what has happened? And in this particular case unfortunately, it is very unfortunate that what the Chief Justice wrote was not correct. He just made up a story and said that 'this is what I think happened, and I am putting it down so that it is there on record that this is what happened' but what he has written has not happened. I know it because I was a member of the collegium at that time. So where do you draw the line between secrecy, between opacity, between being opaque and the right to information?" asked Lokur.