If Centre has total control, judiciary won't be free: Ex-SC judge

New Delhi: Former Supreme Court judge Justice Madan B. Lokur, in an interview with IANS, said "the manner in which the executive has been dealing with the recommendations of the Collegium is an indication that it intends to throw out the baby with the bath water and take complete control over the appointment process", and if it succeeds, India will cease to have an independent judiciary to the detriment of all of us.

He said nobody knows why senior advocate Saurabh Kirpal, who is openly gay, has not been appointed as a judge to the Delhi High Court? Also, it is improper to accuse several Supreme Court judges of giving an alien interpretation to the Constitution. Lokur said, the executive is an equal player in the collegium system, however, "It is now emerging that the biggest hurdle to the success of the collegium system is the executive and its complete opacity and its arbitrariness".

And, on the row over the National Judicial Appointments Commission (NJAC) Act, he said the central government stubbornly decided that it should be its way or the highway.

Excerpts from the interview:

Q: Recently, Law Minister Kiren Rijiju, attacking the mechanism to appoint Supreme Court and high court judges, said the collegium system is "alien" to the Constitution. Is the collegium system really alien to the Constitution?

A: The collegium system is the result of decisions rendered by the Supreme Court over a period of several years. It is not an overnight development. Judgments delivered by a Bench of 9 judges of the Supreme Court interpreted the Constitution resulting in the collegium in its present form. It is improper to accuse several Supreme Court judges of giving an alien interpretation to the Constitution.

Q: Prior to the introduction of the collegium system in the 1990s, judges in the higher judiciary were appointed by the government. Can it be said that they were not independent? If not then why this apprehension that without collegium, judiciary will not be independent?

A: There are governments and governments and ministers and ministers. Judges have always been independent even before the collegium system. Governments and ministers did not like it, on occasions, but accepted and tolerated it. Primacy was accorded to the Chief Justice of India.

Not so today. It appears that the executive does not want independent judges but wants a committed judiciary. If it succeeds in its misadventure, India will cease to have an independent judiciary to the detriment of all of us.

Q: Does the collegium want absolute power in the appointment process? If judges were to make a mistake recommending a name for elevation, since no institution in a constitutional democracy is perfect, who would correct it?

A: The collegium does not and never wanted absolute power. You've got it completely wrong. It's the executive that wants absolute power and control over the appointment process. Why? It is not prepared to accept the primacy of the Supreme Court for reasons that are quite obvious.

Q: Friction points between the Centre and judiciary have increased in connection with the appointment of judges. Do you think the collegium system is successful or there are certain areas which lack transparency in selecting judges?

A: Some functional areas in the collegium system deserve greater transparency. Improvements in these areas is possible and I hope the Supreme Court and the High Court collegiums will look into this. However, this is no ground to scrap the collegium system. The executive is an equal player in the collegium system. Unfortunately, there is total lack of transparency as far as the executive is concerned and its decision making is opaque.

For example, on what grounds does it disagree with recommendations made by the Supreme Court collegium? Nobody knows. For what reason does it delay forwarding recommendations to the President? Nobody knows. Why has Chief Justice Dipankar Dutta not been appointed to the Supreme Court for over two months? Nobody knows. Why has Saurabh Kirpal not been appointed to the Delhi High Court? Nobody knows.

There are several such instances of opaque decision making by the executive. It is now emerging that the biggest hurdle to the success of the collegium system is the executive and its complete opacity and its arbitrariness. The executive must open up and be transparent.

Taking potshots at the collegium system is not a substitute for transparency. The executive must appreciate that and be transparent, not opaque. Sunlight is said to be the best of disinfectants.

Q: Was the National Judicial Appointments Commission Act a good model? Did it require a fair chance to work or is the collegium system far better than it? Was NJAC really a battle between the judiciary and the executive?

A: The NJAC Act was the result of an amendment to the Constitution. There should have been a healthy debate before making the NJAC a law. Only then could the flaws have been minimised and creases ironed out. Unfortunately, the Central Government stubbornly decided that it should be its way or the highway. It was never a battle between the judiciary and the executive, but now the executive is making it out to be so, unfortunately.

Q: Some questions have been raised about the collegium picking up some names and dropping others. Are recommendations for appointment of judges to the apex court and high courts more subjective and less objective?

A: I don't accept it as a general proposition. As mentioned earlier, the executive is an equal player in the collegium system. And yes, the collegium has made some recommendations and not made some recommendations on criteria other than objective. This is where improvement is necessary.

The failure of the executive to accept some recommendations of the Supreme Court has, unfortunately, been based only on subjective reasoning, or so it appears. Where an objective decision has been taken by the executive, the collegium has accepted it.

Q: Recently, Chief Justice of India D.Y. Chandrachud emphasised on having good judges instead of doubling the number of judges to combat pendency. Is the collegium system perfect in selecting good judges and the executive's larger say in the process would dilute the independence of the judiciary?

A: No system is perfect, including the collegium system. An effort should always be made to minimise errors of judgment. The manner in which the executive has been dealing with the recommendations of the collegium is an indication that it intends to throw out the baby with the bathwater and take complete control over the appointment process. If that happens, it will be the end of the independence of the judiciary.