Former Supreme Court judge Justice Madan B Lokur has strongly advocated for India to evolve its judicial independence standards in line with international norms. He emphasized the need for open and honest dialogue on critical issues such as judge appointments, delays, transparency, diversity, communalism, and accountability in the judiciary.
“We need to evolve standards in line with international standards, after a discussion. And we should have an open, free and frank discussion,” Justice Lokur stated.
Speaking at the launch of the International Commission of Jurists’ report titled “Judicial Independence in India: Tipping the Scale”, Justice Lokur explained that judicial independence depends on three main factors: criteria for appointment, the appointing body, and the procedure followed.
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He pointed out that the criteria must focus on competence, integrity, and non-discrimination, including religion, caste, and political affiliation. Interestingly, while India stresses non-affiliation with politics, international norms allow such affiliation as long as merit remains the key factor.
Justice Lokur discussed the Memorandum of Procedure (MoP) for judge appointments, raising concerns over its income threshold, which he said unfairly disadvantages competent lawyers from smaller states. He also highlighted the collegium system’s lack of transparency and the executive’s growing interference, which leads to frequent conflicts.
“The Judiciary makes a recommendation and the executive says, ‘no, we’re not going to make that appointment,’” he remarked.
Citing his experience in Fiji, he said their judicial appointment discussions are audio recorded, a level of transparency missing in India. He noted that earlier collegium resolutions included references to Intelligence Bureau (IB) reports, but executive pushback led to this practice being discontinued.
“If you say this is what the IB report says without naming anyone, how does it matter? But there is a pushback,” he said.
Justice Lokur also criticized the lack of transparency in case allocation. He questioned why certain judges consistently receive specific types of cases, suggesting this could be used to influence outcomes.
“Transparency in listing of cases. Why should cases go before a particular judge? You want a particular outcome so you send it to a particular judge?” he asked.
Accountability was another key focus. He expressed concern over judges not delivering judgments for months or years, or keeping cases part-heard, without facing any consequences.
“In my view, it certainly is misconduct… but there’s nothing to say it is misconduct,” he noted.
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Justice Lokur cited the example of a judge leaving 30 to 40 cases part-heard and merely being transferred, forcing litigants to start afresh. He stressed the need for a statute or binding resolution to ensure judicial accountability.
“If a Judge says, ‘I’m not going to declare my assets,’ what are you going to do about it? You can’t do a thing,” he said.
The ICJ report reviews India’s judiciary over the past decade, mainly focusing on the Supreme Court. It criticizes the lack of transparency in appointments, the executive’s veto power, and the absence of accountability. The report also flags concerns around post-retirement appointments, discretionary case listings, and judicial bias.
To address these issues, the ICJ recommends the formation of a Judicial Council comprising mainly of judges, a binding code of conduct, and statutory mechanisms to handle misconduct and regulate post-retirement appointments.
“It has to be a combination of both – transparency and accountability – enforced by a statute or a resolution,” Justice Lokur concluded.
