Former Supreme Court judge Madan B Lokur on Tuesday said that new Chief Justice of India SA Bobde has the task of restoring the top court’s credibility and stature urgently. In an article in the Hindustan Times, Lokur wrote that Bobde had to tackle problems in the judiciary with “utmost urgency, dispassionately and with the assistance of all stakeholders”.
Bobde replaced Ranjan Gogoi as the chief justice on Monday.
Lokur said the Supreme Court was incorrectly described as the most powerful court in the world. He said some recent verdicts and administrative decisions by the Supreme Court “seem to suggest that some of our judges need to show some backbone and spine, particularly in dealing with issues of personal liberty”. He wondered if citizens could have any faith in a judiciary “that tends to bend, but not yet crawl”.
Without referring to any specific case, Lokur said no one can be jailed without effective remedy, and kept there based on information given to judges in a sealed cover, or because “there is no time,...or because of misinformation, or because a person is safer in jail”.
Judges at all levels must be given the confidence that they will not be “punished” for honest decisions, even if they are incorrect, Lokur said. Bobde must instil faith in them that “they will be fully protected” while discharging their duties without fear or favour, and also needs to “restore faith in ‘we the people’, that their personal liberty will be preserved and protected by the judges according to law and the Constitution”, Lokur said.
Lokur said that unless the concern of restoring the Supreme Court’s credibility and stature is urgently addressed, “the cascading effect will be the death knell of the independence of the judiciary”. He said Bobde has “time on his hands and he should not let it slip by” as he will not get a second chance.
On transparency and judicial vacancies
The retired judge said Bobde had to “keep open the channels of communication between the judiciary and the lay public”. “Transparency is not a like a pendulum,” Lokur said, claiming that the way collegium resolutions disclosed reasons for appointments of judges a few years ago had now changed to “virtual non-disclosure in the recent past”. “A balance has to be struck and a free and frank discussion must take place among the judges,” he said.
Lokur was referring to the system of publishing collegium resolutions on judicial appointments on the Supreme Court’s website. The practice began in Dipak Misra’s time as chief justice in October 2017, when the top court decided to make the appointment process more transparent. The “collegium” comprises the five most senior judges who give their recommendations to the government on appointments to the High Courts and the top court.
Lokur had then reportedly not agreed entirely with the decision to make collegium resolutions public, and had told Misra: “While no one has any objection to any transparency, issues of confidentiality are equally important and it is necessary to balance them.”
In his Hindustan Times article, Lokur said that with the recent decision to bring the chief justice’s office under the Right to Information Act, “careful thought must be given to the selection procedure and regulated disclosure, rather than a swing from being noisy judges to silent ones”. This appeared to be a reference to Gogoi’s remark in July 2018, that to protect democracy, there was a need for independent journalists and noisy judges.
“Controversial administrative decisions by the collegium have disappointed many, and have led observers to believe that an unseen hand is behind some of them,” Lokur wrote. “Perhaps the appointment of a media adviser or a spokesperson might be necessary, and would also eliminate selective leaks and rumours.”
Lokur also wrote about the problem of vacancies in the judiciary. He said the vacancies can never be filled without compromising quality and violating standards and benchmarks, but wondered if the country indeed needs so many judges.
He said self-respecting lawyers now are reluctant to become judges because of delayed government processes, unpredictable collegium decisions, and the possibility of transfers. “Doesn’t our justice delivery system deserve better?” he asked. “And can the new CJI deliver?”
Lokur was one of the four senior judges of the Supreme Court who held an unprecedented press conference in January 2018 to flag concerns about the handling of the institution by then Chief Justice of India Dipak Misra. All the four judges are retired now. Lokur is now a judge in the Supreme Court of Fiji.