If Govt Comes In Total Control Of Judges' Appointments, We'll Be Heading For Disaster : Former Supreme Court Judges On Law Minister's Comments

Justice Lokur: "The comments made by the law minister were totally uncalled for. In fact, it is the government which is creating all kinds of problems. Just take a few recent examples. About the 24th or 25th of September, the Supreme Court recommended Justice Dipankar Datta as the judge of the Supreme Court. 1-1 and a 1/2 months have gone by but the government has done nothing about it. They had also said that Justice S. Muralidhar should be transferred as chief Justice of the Madras High Court around the same time. Again the government has done nothing about it. Why? It is nice to talk about filling up vacancies but when the Supreme Court says 'fill up the vacancy', the government says 'no, we are not going to fill it up'. Mr. Saurabh Kripal, an excellent advocate, his file is pending with the government for the last I don't know how many years. It is okay for the government to say 'Fill up vacancies, the Supreme Court is doing nothing', but what is the government doing? They should also answer these questions. The comments made by him were uncalled for. Now as far as the collegium system is concerned, again, to some extent, yes, it is not as transparent as it should be as far as the courts are concerned. But again the government is equally not transparent, if not more opaque. They insisted that Justice Akil Kureshi should not be appointed as Chief Justice of Madhya Pradesh High Court. What was the reason? Did you tell anybody? Are they telling anybody why Justice Dipankar Datta is not being appointed to the Supreme Court? If there has to be a change, that has to be a change across the board. The government is also being opaque"

Justice Gupta: "I don't think the collegium system is working very well, to that extent I sort of tend to agree with the law minister, that there needs to be an improvement. But do you have a better system? I don't think so. The way this government functions, if the government totally comes in control of the appointments, we are heading for disaster. So the collegium system is the best we can have but it needs improvement. Even in the NJAC judgment, they made recommendations that there should be a permanent secretariat attached to the collegium and there should be very objective ways of assessing the efficiency, the integrity of a judge who is being considered for appointment to the High Court or Supreme Court or a lawyer who is being considered for appointment to the High Court or Supreme Court. There, I think the Supreme Court fell behind. They should have made it more as such where people feel that the people are doing right and the right people are coming. I agree with Justice Lokur completely as regards Justice Dipankar Datta- he was chosen by the collegium, he is a judge of 2006, he was overlooked for chief justiceship in the sense that he cannot become chief Justice of India. He has an impeccable record. As regards Justice Muralidhar from Odisha being transferred to Chennai, if the government disagrees, they have the right to disagree, but where is that disagreement being recorded and sent back to the collegium? Now the government has found a new method- to sit over the file. That is going to cause great damage to the judiciary. If the new collegium recommends new names to the Supreme Court and, like what has happened in the past, the government approves those and sits over Justice Dipankar Datta? That poor man is suffering for no fault of his. I think the Supreme Court should insist that first, you should make the appointments that we have done, only then will we make new recommendations. Otherwise, this is a method of holding the Supreme Court collegium system to ransom, that 'we will sit over the files and you will be sending new names'...I want to say that we blame the government all the time, but I am very sorry that Justice Akil Kureshi was one of our finest judges and his name was never even recommended by the collegium"

Justice Lokur: "I entirely agree with Justice Dipak Gupta. I have been saying it for a long time that we do need to have a change in the collegium system. It is not perfect. Let us accept that. So the next question is can we bring about some changes and if we bring about some changes, will it improve the system. The answer is 'yes'. What are those changes? The changes are that you must have some kind of an objective criteria for selecting judges. So that fingers are not raised, fingers are not pointed and you select the best person. That is one way of doing it. The Secretariat is another way which was in fact mentioned in the NJAC judgment. Finding out if there is some person who is better than the best, who has been overlooked and if so, why- these are issues that the collegium must consider. It is alright for the collegium to say that 'well, we selected the best persons'. Yes, you selected the best, but there are some who are better than the best and why have they not been selected. It may not be a good idea to disclose those reasons but certainly consider those persons also. If you can't select them now, because of seniority or whatever, then perhaps maybe a little later. If you are going to start appointing persons who are low down in the seniority and overlook much better judges higher up in the seniority, so clearly people will ask questions. The Supreme Court collegium must have changes, they need to discuss it and they need to discuss it threadbare. And this, I think, is the right moment to do it before the government launches an attack on the collegium and tries to displace it completely"

On being asked by the presenter if he is anticipating that, Justice Lokur replied, "Yes, I am. The recent statements which have been coming from the law minister. are a clear enough indication that they want to move and move pretty quickly"