If All Judges Are Equal, Why Should Certain Kind Of Cases Go To A Particular Judge? Justice Madan B Lokur

The Session, which revolved around constitutional morality, was moderated by Senior Advocate Bishwajit Bhattacharya.

At the commencement of the session, Advocate Bhattacharya asked about replacing the Chief Justice of India in the collegium to select election commissioners with a union cabinet minister. Does it not violate the grundnorm and the very basis of the morality of the constitution? he asked. To this, Justice Lokur replied in the affirmative.

Providing a succinct background, the Supreme Court, last year, in Anoop Baranwal v. Union of India, had ordered that the President of India appoint Election Commissioners on the advice of a Committee consisting of the Prime Minister and leader of Opposition in the Lok Sabha (or leader of the largest opposition party), and the Chief Justice of India. However, in the recent Act enacted by the Parliament, CJI was replaced with the Union Cabinet minister, thus leaving the selection committee executive-centric.

To support his answer, Justice Lokur also told the audience about the constituent assembly debates where it was unanimously agreed that the executive should not be involved in appointing the chief election commissioner (CEC) and other election commissioners. It was agreed that there has to be an independent body to execute free and fair elections, which is one of the basic features of our Constitution.

“Yes, you are right. In the constituent assembly, there were debates about the election commission, One of the questions that was raised was why do not we decide how is the election commissioners are to be appointed. There were different views. Dr. Ambedkar said that this is going to take too long to decide what is the best way to do it so let's leave it to parliament. Let Parliament make a law on how to appoint the chief election commissioner and the election commissioners. But the most important thing was that everybody in the constituent assembly said that the executive should not be involved in the appointment of the CEC and the ECs. Which is to say that it has to be some independent body…free and fair elections is one of the basic features of our constitution.”

Speaking about the new law that has replaced the CJI, Justice Lokur said that the executive will dominate. Therefore, he said, it goes against the constituent morality because today, the law is not independent of the executive.

Additionally, it may be noted that recently, the Supreme Court agreed to hear a petition challenging the constitutionality of Sections 7 and 8 of the Act. According to Section 7, the selection committee would consist of the prime minister, a union cabinet minister, and the opposition leader or the leader of the largest opposition party in the Lok Sabha. Section 8 empowers the panel to regulate its procedure in a transparent manner and even consider persons other than those suggested by the search committee.

Arbitrariness is the antithesis of equality; Justice Lokur On Arbitrary Assigning Of Cases

Moving ahead with the session, Justice Lokur was asked about the issue of the master of the roster. The entire power is concentrated on the CJI. Why the entire Court cannot be involved in this process?, Bhattacharya asked.

Justice Lokur, replying to this, said that for some reason, in the past, there have been some sensitive cases going to a particular judge or particular set of judges, and that has been a bit of a problem.

“Why should some kinds of cases go only to a particular judge who also does not happen to a senior judge? Who happens to be a junior judge….That created a bit of a problem. That problem, unfortunately, is persisting. The perception is that the cases that are sensitive are going only to a particular judge or a particular set of judges and not to others….that perception creates a problem, that why the master of the roster, i.e., the CJI, is doing this.”

“Arbitrariness is the antithesis of equality. If all judges are equal, you cannot arbitrarily say that, well, certain kinds of cases will go to a particular judge and to nobody else.,” Justice Lokur stated.

It may be recalled that Justice Madan B Lokur was one of the four Supreme Court judges who convened the 2018 press conference over the 'master of roster' controversy.

If A Person Is Gay, It Does Not Mean That He Cannot Be A Judge

Speaking about the problem that the collegium recommendations not being implemented by the executive and linking this with constitutional morality, Justice Lokur said:

“What is the government supposed to do? The government is expected to say that it is a recommendation that has come, right down the line for the Supreme Court, we accept it or if they have any objection, they should say that we have an objection… the collegium say that we have considered it (objection) but we still think that this person should be appointed. The problem arises now in the sense of constitutional morality is should the government accept that recommendation or not.”

“The Problem that has been arising in the recent past is that the government says that you (Supreme Court) have made a recommendation, we are not going to act upon it. They sit on the file for years. Even though the SC collegium has said that this person should be appointed, we have seen your objection, we do not agree with your objection, it is our view that which we reiterate; yet, the government says that no, we are not going to appoint that person. That is where the constitutional morality comes in.”

Notably, Justice Lokur also spoke about the reiteration by the Supreme Court collegium to appoint advocate Saurabh Kirpal as a judge of the Delhi High Court. The Top Court while doing so, rejected the objections raised by the law ministry because of his sexual orientation.

Kirpal's recommendation was made unanimously by the Delhi High Court Collegium on October 13, 2017, and was approved by the Supreme Court Collegium on November 11, 2021. The recommendation was referred back to the collegium on November 25, 2022, for reconsideration by the law ministry.

Sharing his viewpoint on the same, Justice Lokur opined that if a person is gay, that does not mean that he cannot be a judge. He asked if there is some connection between the sexual orientation of a person and being able to give justice?

“There is a person who has been recommended for the judge for Delhi HC….The perception is that the government is saying that we are not going to appoint this person because he is gay. Now, if he is gay, does it mean that he cannot be a judge? Is there some connection between the sexual orientation of a person and being able to give justice?”

Governors of States are sitting over bills passed by the state for years and months; does it also not amount to constitutional immorality?

Justice Lokur said the Constitution requires the governor to decide on bills . Justice Lokur also mentioned how state governments had to approach the Supreme Court to seek decisions from the governors on the bills passed by the legislature. One must note that concerning this issue, the States of Kerala and Punjab have moved to the Supreme Court.

“What has been happening is that the governor has been sitting over these bills, saying that I am not going to do anything. I am not going to tell you it is unconstitutional, I am not going to say that it is contrary to law enacted by the parliament….that is not constitutional morality. The Constitution requires that you have to take a decision. The Constitution does not say that you have to give your opinion within 10 or 15 days. The constitution says that you have to take a view within a reasonable period of time. What is a reasonable period of time?...It could never be one year; it could never be two years.”

“We have had instances of this nature in the recent past, so some of the State Governments have gone to the Supreme Court and said what is the governor doing. Please have the governor take a decision. So, what does a governor do in a particular case? He says alright I have been sitting over it for the last two years, now, I am going to send it to the President….If there is no conflict, why have you sent it, and if there is a conflict, why have you not written about the conflict.,” Justice Lokur said.

Delay In Deciding Disqualification Petitions Filed Under The Tenth Schedule (Anti-Defection Law) Of The Constitution By The Maharashtra Speaker

Adding to the above-mentioned answer, Justice Lokur also spoke about how recently, in Maharashtra, decisions regarding the disqualification of several MLAs were not being taken.

In its May 11, 2023, constitution bench judgement in the matter pertaining to the Shiv Sena rift, the Supreme Court had held that it could not order the restoration of the Uddhav Thackeray government as Thackeray had resigned without facing a floor test. Further, the court handed over the decision to determine the disqualification petitions to the speaker, adding that the speaker “must decide the disqualification within a reasonable period.”

Following this, a plea was moved by Shiv Sena (Uddhav Thackeray) party MP Sunil Prabhu seeking a direction to the Maharashtra Legislative Assembly Speaker to expeditiously decide on the disqualification pleas pending against rebel Sena MLAs led by Eknath Shinde.

The Supreme Court had initially set a deadline of December 31, 2023, for the Speaker to decide the petitions under the tenth schedule of the Constitution; the court later extended the deadline to January 10, 2024. 

Speaking about this delay, Justice Lokur stated:

“You have the speaker of the Vidhan Sabha, implementation of the anti-defection law, where people have switched allegiance from the party on which they were elected. A petition is filed before the speaker, saying that this person should be disqualified because it is a violation of the 10^th schedule. The speaker says that I am not deciding….that is not constitutional morality.”

“We had the same problem recently in Maharashtra where the decision was not being taken. That is not constitutional morality…You have to be pragmatic. You have to look the constitution as a document of governance, not as a document of misgovernance or non-governance.”

Post-Retirement Posts Given To Judges

Lastly, while answering one of the questions asked by the audience pertaining to post-retirement posts, Justice Lokur gave an instance of an eminent judge, Justice MC Chagla, who was appointed as a Union Minister.

“Nobody said anything. We had people of integrity and character then. That is why people like MC Chagla were Union Minister. Now, things have changed.”

“So, if you have a judge appointed to the Rajya Sabha or as a Governor, people are going to raise fingers. They are going to ask questions, which they wouldn't have asked 40 or 60 years ago. So, times are changing. We need to get people of character and integrity back into the system.,” Justice Lokur added.