Important To Hold Govt Accountable For Its Inaction On Collegium Proposals : Former Judge Madan B Lokur

Addressing the issue of accountability, Justice Lokur noted that it is time that the Central Government is held accountable for sitting over files, sending back names without citing reasons, and stalling the process of appointment of judges to the constitutional courts.

“I am not doubting the accountability aspect of the collegium at all and I think it should be answerable to the public. But, the important thing is the accountability of the Govt...In my view the Govt. so far has not been accountable.”

The accountability, he indicated, also extends to the discretion exercised by the Central Government in segregating recommendations. When three names were sent in one recommendation, the Central Government segregated the files - kept one file aside and appointed the other two. This practice was found to be unacceptable by the then Chief Justice of India, Justice RM Lodha as the segregation has an impact on the seniority of the judges.

He also criticised the Government’s strategy to sit over files. Justice Lokur noted -

“You have the instance of Mr. Saurabh Kirpal which has been coming out in papers from quite some time. While this to and fro is going on, 18 people have become senior to him. Why? because the Govt. is sitting over his file. So, the Govt. should also be accountable.”

Justice Lokur made an attempt to look at the collegium system starting from the stage of recommendation by the High Court till the warrant of appointments are issued by the President of India to ensure to look at the loopholes and ways to fix the same. At the recommendation stage, he pointed out, the moment the letter leaves the office of the Chief Justice of the High Court, everyone in the Bar knows who has been recommended. Considering the same, he opined that no purpose is served by not disclosing or publishing the names recommended by the High Court collegium. He believed that on the contrary the knowledge of names recommended would help in filtering the process better. Participation of the Bar and other stakeholders would provide valuable inputs which wouldn’t have come to the knowledge of the collegium otherwise. Such new information can be considered and reconsidered by the collegium.

Moving on to the inputs provided by the intelligence agencies, Justice Lokur shared an interesting anecdote -

“...quite some time ago someone was recommended from the Delhi High Court to be appointed as a judge...He was a complete teetotaller and because he was teetotaller, he got the nickname of ‘boozer’. The Intelligence agency said that he is a boozer and the collegium looked at it and said that this guy is a boozer and we cannot recommend him and that was the end of it. Subsequently, obviously he became a judge.”

He welcomed the recent initiative taken by the Supreme Court collegium to cull out information given by the Investigation agency and put it in its statement. He noted that though the Law Minister did not appreciate the disclosure, the people of the country have a right to know about the information provided by the Intelligence agencies about a candidate. Justice Lokur was of the view that the field officers name should not be disclosed, but what the agency says about a candidate can be made available to the public.

“…disclosing that information and making it public, I see nothing wrong in that. The present collegium has taken a progressive step and I hope it continues despite what the Law Minister has to say.”

Justice Lokur said that the Central Government is supposed to give detailed information on what has been collected by the Investigation agency and the High Court and other sources, no information should be withheld from the Collegium. The collegium should be in a position to take an informed decision. He also pointed out -

“If the entire material is placed before the Supreme Court collegium there is no reason for the Central Govt. to send it back to the collegium for reconsideration. You had a situation recently pertaining to the Madras High Court. The Central Government just sent the file back to the collegium, no reasons given. The Supreme Court has noted in the statement that no reasons have been given and we reiterate the name.”

The issue of reiteration was also touched upon. As per the present Memorandum of Procedure, once a name is reiterated by the Collegium the Government has no option but to appoint the individual. However, in reality appointments are still not made after the third reiteration.

“There has not only been one reiteration, there has been two and in one case there has been three reiterations. Accountability of the Govt. is necessary. Why is the Govt. doing this? I think the collegium should know about it and tell the people what is happening. The collegium should take it up and say that, please explain to us why you are doing this. You are accountable to the judiciary, to the people of the country.”

At the end, Justice Lokur asked the collegium to open up the files from the past. He emphasised that the recommendations made in 1990 and the first half of 2000 should be made public.

“My last point. Time has come to open up the files. Recommendations made in 1990, first half of 2000, why not open up those files? So that we know...what is the national secret behind keeping those files in a closet.”

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