In an interview about the suggestions made by law minister Kiren Rijiju to the Chief Justice of India about how judges for both the high courts and Supreme Court should be chosen, one of India’s most highly regarded former Supreme Court judges and a former member of both the Supreme Court Collegium and High Court Collegiums has said that the law minister’s suggestions are “unacceptable” and they would, if implemented, “damage and undermine the independence of the judiciary”.
Justice Madan Lokur has also said that the justification given by the law minister for his suggestions – i.e. that the Supreme Court judgement of 2015 “directed to restructure the Memorandum of Procedure of the Collegium system” – is “flawed”. Finally, Justice Lokur has also strongly criticised the Supreme Court for failing to do enough to defend and enforce the Collegium’s decisions. He called this repeated failure “unacceptable”.
In a wide-ranging interview to The Wire, Justice Lokur was first asked about the law minister’s suggestion that a Union government representative should be included in the Supreme Court Collegium and a state government representative in each of the High Court Collegiums. Justice Lokur said this would be “unacceptable” because (a) there’s no need for a government representative and (b) he raised the question what will the representative do? Justice Lokur said a government representative would be inadequately informed and inadequately knowledgeable to judge the legal merit of the candidates being considered for judgeship. So what would this person search for, Justice Lokur asked. At best it could be the political affiliation or cultural affiliation of the candidates. That, however, Justice Lokur added, would be unacceptable.
Speaking about the second suggestion made by the law minister for a Search and Affiliation Committee, reportedly comprising government representatives, former judges and academics, Justice Lokur said this would also be “unacceptable” both because it’s unnecessary but also because it would cast aspersions on the Collegium which is already searching and evaluating candidates. Justice Lokur added that “the contribution would be nil”.
Asked how he responded to the law minister’s justification for these suggestions, that a 2015 judgement of the Supreme Court striking down the National Judicial Appointments Commission had called for restructuring the Memorandum of Procedure, Justice Lokur said “the justification is flawed”. He first questioned whether the Supreme Court had actually used the word restructuring. Second, he said even if it had restructuring the Memorandum of Procedure cannot mean you change the character of the Collegiums. That can only be done by another judgement not by restructuring the Memorandum of Procedure.
Justice Lokur said that “Independence of the judiciary is a basic feature of our republican constitution and democracy”. He said altering the character of the Collegium to include government representatives would “damage and undermine the independence of the judiciary”.
Justice Lokur said involving the representative of any government in the Collegiums would be wrong but he was particularly concerned about involving representatives of the present Modi government. As he put it: “The developments of the last few months and this government’s track record of dealing with Supreme Court recommendations clearly suggests the government is looking for a committed judiciary.” Therefore, permitting this government a role in the selection of judges would be particularly worrying and dangerous.
Speaking about the concerted attacks on the Collegium System by the law minister, Justice Lokur said: “It’s an attack on the constitution … a veiled attack on the constitution through the medium of the judiciary”. He added: “It’s being done by the government … not the law minister on his own.”
Finally, Justice Lokur agreed that the Supreme Court must act to defend and enforce its Collegium’s decisions, particularly when names have been reiterated not just once but even twice or three times are not acted upon by the government. He said it was “unacceptable” for the Supreme Court to let the government get away with it. He agreed that on such occasions the Supreme Court must haul up the secretary of the law ministry for contempt of court and breach of the law of the land.