System Of Transfer Of High Court Chief Justices Should Be Abolished: Justice Madan Lokur

Speaking at an event celebrating Constitution Day 2021, Justice Madan B Lokur, former judge of the Supreme Court of India noted that unless we have a Judiciary that stands up, speaks out and introspects, our constitution will become another piece of document which we will keep on discussing on 26^th November. Justice Lokur was speaking at The Leaflet's Constitution Day Talk titled 'Undermining the Idea of India: Which way forward?'.

At the onset, Justice Madan B Lokur, noted that there were two things he wanted to talk about, which in his opinion, were not being talked about enough-Human Rights and Independence of the Judiciary.

We haven't been giving importance to human rights as much as we should

Justice Lokur observed that within the broad spectrum of Human Rights, Freedom of Speech is something that needs special focus. He noted that dissent and disagreement-which are the essence of Freedom of Speech, Democracy and Good governance-were not being taken kindly.

"There are hundreds of cases that are filed accusing persons of sedition. Nothing has happened in any of those cases except that persons who have been accused of sedition have spent time in jail unnecessarily and it has had an impact on their future."

Justice Lokur noted there are long-term consequences of these charges being filed wantonly. He noted the instance of a young environmentalist from Bangalore who apparently came out with a "toolkit" was booked sedition, brought from Bangalore to Delhi, put in jail for a couple of days, not allowed to call her lawyer. Further, she was unable to attend COP 26 as she did not get her passport despite having applied for it 3 months in advance.

"Look at it from the point of view of something which should not have happened. In the first instance, she should not have been put in for sedition and look at the consequence of that."

The judge also noted that the trend has only worsened with charges moving from sedition to UAPA, National Security Act and Public Safety Act. Speaking of the importance of dissent, the judge said:

"Why can't you disagree with what has been said? Just because you happen to be the government doesn't mean that everything that you say is right. It can't be."

The judge also spoke of other ways in which dissent and democracy are suppressed- by way of repeated assaults on the Freedom of Assembly

"What was the allegation against the farmers? That they had blocked the highway. But when the barricades were lifted...all of them had been put by the Delhi Police, not by the farmers. Spikes, barbed wire, concrete blocks put by the State. "

The judge also noted that there are some "troubling things" which have been happening which impact the Freedom of Life and Liberty of individuals:

"Wanton arrests, searches and seizures-Oh I have some information against you, so I am going to come and search your house. I am to hang around over there for couple of hours. I am going to seize your telephone, laptop…so everything that is there on the laptop, telephone is available and sometimes shared with friendly journalists so that it is announced on TV- that this is what Whatsapp chats are."

On Independence of Judiciary, Justice Lokur wondered:

"Why is the Judiciary not reacting to some of these situations. We talk about a person getting bail on Diwali and the Supreme Court saying even one day's arrest is not good. But we have 69% of people under trial. We have people in jails for years together and sometimes even decades! Are they not entitled to bail?"

Justice Lokur also noted that people are being arrested for doing innocuous things which have been interpreted differently:

"This has happened to some journalists in Tripura. You just cook up a case and put them in Jail and say-That's it! And what does the Judiciary do about it? Not much I am afraid."

Speaking on the issue of transfers of High Court judges which have been in news recently, the former judge observed:

"34 Transfers of judges have taken place in the month of September. Was it necessary? Why have so many judges been transferred? Are the judges at the High Court level not good enough and therefore need to be transferred?"

Justice Lokur also noted instances of Chief Justices being transferred and denied appointment to higher courts and added that in his opinion the system of transfer of high court Chief Justices be abolished.

"My view is that the system of transfer of Chief Justices-that the Chief Justice should be a judge from some other court should be given up. It was decided many years ago because of certain situations that arose in a particular High Court. That situation does not exist anymore. That was 20 years before the Collegium system came. And now there are enough checks over Chief Justices through the Collegium system in the High Court and Supreme Court."

The Judiciary is in need for introspection

In addition to discussions over Independence of the Judiciary, parallelly, there is need for the institution to introspect, added Justice Lokur.

"I would recommend that there is conference of Chief Justices. Have a Conference of Chief Justices and thrash out the problem! There are many of them- Pendency of cases and vacancies are just two of them. But they are many many more. And the Judiciary whether it's the last bastion or the final frontier it has to stand up."

Towards the end of his address, the judge added that, in his opinion to preserve the Idea of India an Independent Judiciary is a must.

"Unless we have a Judiciary that stands up, speaks out and introspects Our constitution will become another piece of document which we will keep on discussing on 26^th November."