Need to discuss sustainable judicial reforms: Justice Madan B Lokur tells The Leaflet

[dropcap]W[/dropcap]HEN the then Chief Justice H L Dattu constituted the social justice Bench in December 2014, to sit on Friday afternoons to exclusively deal with social justice issues, the only criticism raised was that the time allotted to that Bench is too little, that there should have been more such Benches and more days of hearing. However, one of those Judges who was totally committed to the idea of social justice with his able colleagues on the Bench, proved the critics wrong.  And that was Justice Madan B Lokur, who retired as a judge of the Supreme Court on December 30, 2018, leaving a long and illustrious legacy as the “social justice judge”.

Different Chief Justices had difference of opinion in continuing with such a Bench exclusively for social justice; however, the revival of the Bench by Chief Justice J S Khehar with the restrictions on the time done away with, assured that the Republic is not in danger when the sentinel on the qui vive is closely monitoring all its actions on a daily basis. The Armed Forces were taken to task when it was a fake encounter in Manipur, their application for recusal of the Judge was repelled with a comment that their apprehension is ‘suggestive of their weakness’.

Widows of Vrindavan were assured of a pension and decent livelihood,  when their pathetic condition was examined by a Supreme Court Bench headed by Justice Lokur.

In the Writ Petition (Civil) No. 406 Of 2013, titled Re- Inhuman Conditions In 1382 Prisons, the Bench headed by Justice Lokur issued series of directions for the effective protection of the Rights of prisoners. Justice Lokur reiterated the position on Rights of prisoners as explained by Justice Krishna Iyer in Sunil Batra case: “A prisoner is entitled to every creature comfort and facilities such as bed and pillow, opportunity to commerce with humankind, writing material, newspapers, books, meeting with family members”.

In Ashwani Kumar v. Union of India, WP (C) No. 193 of 2016, wherein directions for the protection of elderly people were issued to the Government, Justice Lokur observed: “Social justice in the Preamble of our Constitution has been given pride of place and for good reason since it is perhaps the most important and significant form of justice”.

In Independent Thought v. Union of India, Justice Madan Lokur struck down Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years making the marital rape of minor girls an offence of rape. It was observed:  “It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position.”

The Supreme Court Bench headed by Justice Lokur transferred 16 cases related to the sexual and mental exploitation of children in Bihar shelter homes to the Central Bureau of Investigation, after finding that the State Government’s dealing with the case “shameful” and “inhuman”.

In the judgment in W.P. No.565 of 2012 titled Nipun Saxena v. Union of India, (authored by Justice Deepak Gupta on December 11, 2018, a Division Bench to which Justice Lokur was a member), the Supreme Court directed that it is imperative that we should have courts which are child friendly.

In his entire career as a Judge in the High Court or Supreme Court, Justice Madan Lokur had not imposed or upheld any death sentence. From the beginning till his recent retirement from the Bench, Justice Lokur had a humane approach to all the issues.

As India marks its 69th Republic Day on January 26, 2019, an interview with the Justice Madan B Lokur becomes a window to how the judiciary has and has not lived up to the constitutional ideals envisioned by our founding fathers and mothers of the democratic republic.

Prasanth Padmanabhan (left) interviews Justice Madan B. Lokur (Retd.) on January 24, 2019 | Photo credit: Aparna Seth/The Leaflet



Edited excerpts from the interview


Prashant Padmanabhan: Sir, you have been one of the outstanding Judges in the Supreme Court?  You have always safeguarded individual Rights and liberty zealously against Governmental powers. On your retirement, we are losing one of the finest judges on the Bench.  How would the collegium compensate this loss? 

Justice Madan Lokur (Retd): Thank you for the compliments.  The collegium is an institution and if one Judge goes out, then another Judge comes in, so the collegium continues.


Prashant Padmanabhan: Can we say that you were a liberal Judge, in the recent past of Supreme Court, who always stood against the governmental interference when there was an encroachment on individual liberty? 

Justice Madan Lokur (Retd): It is not for me to Judge whether I was liberal or not.  But I think every Judge does protect encroachments on individual liberty.


Prashant Padmanabhan: Who is the Judge in the entire history of India, whom you admire the most? As a path finder or as the best Judge?  Which jurist influenced you most? If you consider the past two decades.  2000-2010 and 2010-2018, whom do you consider the best Judges? Can you name a few lawyers who have impressed you most?

Justice Madan Lokur (Retd): It would not be fair on my part to identify any Judge or Judges or lawyers whom I admire or who have impressed me. I have great respect for all our Judges and all lawyers.


Prashant Padmanabhan:  do you think that the Supreme Court Judges library, one of the best in Asia, must be open for lawyers as a reference library?    

Justice Madan Lokur (Retd):  That is for the CJI to decide. Yes, I think the SC Judges library should be open for lawyers for reference.


Prashant Padmanabhan: You have been recently honoured during the swearing in ceremony of the Chief Justice of Pakistan Justice Asif Saeed Khan Khosa and was made to sit on the Bench and heard cases for around 45 minutes? can you narrate your experience for us?    

 Justice Madan Lokur (Retd):   It was a very pleasant experience.  But I must say that I have had the occasion to sit on the Bench  of the Supreme Court of Pakistan on an earlier occasion also.  This was the 2nd time that I had the honour and privilege of sitting on the Bench.  And on both occasions I was impressed by the preparation of the paper books given to the Hon’ble Judges and the decorum in maintained in the Court room and the quality of submissions by the lawyers.


Also read: How Senior Advocate Indira Jaising introduced Justice Madan B Lokur (Retd.) at The Leaflet’s ‘State of the Indian Judiciary’ event


On legal aid


Prashant Padmanabhan: You have been the Executive Chairman, NALSA. Are you satisfied with the working of the legal aid system? PTI reported a statement by you on May 6, 2016.  The headline reads: “Victims lack confidence in the legal aid lawyers”.  Any positive changes you would recommend?

Justice Madan Lokur (Retd): There is a tremendous scope for improvement in the functioning of the legal aid and advice system in the country.  As the Chairperson of the Supreme Court Legal Services Committee, I got an independent open door audit conducted of the functioning of the Committee and that revealed very many things that needed to be critically examined to improve the effective, efficient and qualitative availability of  legal assistance to litigants who approach the SCLSC.  I think this is true across the board and it would be advisable for all legal services institutions under the Legal Services Authorities Act to conduct an open door audit.  As far as NALSA is concerned in the meeting of the Central Authority we had deided upon impact assessments being made for all the activities of NALSA.  I am not aware how far this has progressed.  We must have regular open door audits and impact assessments.


Prashant Padmanabhan: In many of the States, lawyers who are on the panel of NALSA are paid very less amount, that too not in time.  Any change you could recommend?

Justice Madan Lokur (Retd): I am not aware of the fees paid in States but the fees paid to SC lawyers was enhanced and all pending payments cleared when I was the Chairperson of the SCLSC.  We also introduced electronic payment and I believe that now there is no delay in payment of fees and expenses.


Prashant Padmanabhan: In the Writ Petition (Civil) No. 406 Of 2013, titled Re- Inhuman Conditions In 1382 Prisons, you sitting with Justice Deepak Gupta have issued series of directions on September 15, 2017 for the effective implementation of ensuring Rights of prisoners.  Are you satisfied with the implementation part? Is there anything further to be done? 

Justice Madan Lokur (Retd): The rights of prisoners need regular and effective monitoring.  It is difficult to say that I am satisfied with the implementation of the directions that have been given from time to time because there are still thousands of persons who really ought not to be in jail.  There is a lot of work to be done in this regard.


Prashant Padmanabhan:  You have done so much for ‘social justice’ while being a Judge of the Supreme Court.  What are your suggestions for lawyer community?  What should be the role of civil society?    

Justice Madan Lokur (Retd):   I think the lawyer community should be more socially involved because of their specialised knowledge.  They can do a lot for society as was evident in the aftermath of the Kerala floods.  Civil society should also be more concerned about improving the quality of life in the country, in terms of hygiene, living conditions, adherence to the rule of law etc.


On death penalty


Prashant Padmanabhan: You have released the Death Penalty India report, on the basis of the study conducted by National Law University, Delhi.  One of the major finding is that most of the death row convicts are backward, uneducated and first time offenders.  Do you think that it is time to abolish death penalty? The Law Commission of India, headed by Justice A P Shah has submitted Report No.262 on Death Penalty. It recommended  abolition of death penalty for all crimes other than terrorism related offences and waging war against India.  do you think that one day this recommendation will become law of the land through a Supreme Court Order, if the Government is not implementing it? 

Justice Madan Lokur (Retd): I cannot say that the time has come to abolish the death penalty. But I think we are moving in that direction.


Prashant Padmanabhan: Have you ever upheld a death sentence in your tenure in the High Courts or Supreme Court? 

Justice Madan Lokur (Retd): No.


 Selection of judges 


Prashant Padmanabhan:  In the Constitution Bench judgment wherein NJAC was held unconstitutional, you’ve observed that:  “This is not to say that the ‘collegium system’ is perfect. Hardly so. During the course of hearing, some critical comments were made with regard to the appointment of some judges to this Court which, it was submitted by the learned Attorney-General would not have been possible were it not for the failure of the collegium system. Even the petitioners were critical of the collegium system. However, I must express my anguish at the manner in which an ‘attack’ was launched by some learned counsel appearing for the respondents. It was vitriolic at times, lacking discretion and wholly unnecessary. Denigrating judges is the easiest thing to do – they cannot fight back – and the surest way to ensure that the judiciary loses its independence and the people lose confidence in the judiciary, which is hardly advisable. The Bar has an equal (if not greater) stake in the independence of the judiciary and the silence of the Bar at relevant moments is inexplicable.  (pg.693)”

Is there a self contradiction here?  One sentence you express anguish at the manner in which arguments were advanced and describe it as vitriolic and in the same paragraph you say that the silence of the Bar at the relevant moment is inexplicable.  Considering that there were strange cases of corrupt or unfit Judges in the system, what should the lawyer community do? 

Justice Madan Lokur (Retd): I do not see any contradiction.  One can be critical without being vitriolic, one can also be critical without denigrating anybody.  The Bar should be independent and unafraid to speak out.


Prashant Padmanabhan:  You must have seen the reports regarding the judgment by Justice S R Sen of Meghalaya High Court. Observations like “India should have been declared a Hindu country”, run totally contrary to our Secular values.  Do you think that a system which appointed persons like him as Judges,  is inherently defective? 

Justice Madan Lokur (Retd): I have no comment on the views expressed by Justice Sen.  However, I am clearly of the view that that the collegium system needs tweaking in several respects.


Prashant Padmanabhan:  If the selection of judges is a serious business requiring detailed enquiry into the candidate’s philosophy, past association, commitment to Constitutional values, financial integrity etc. don’t you think that it is better to have a full time appointment body instead of judges, who are otherwise too busy with judicial work, doing this important function? 

Justice Madan Lokur (Retd): In the NJAC judgment there is already a requirement that a Secretariat should be set up by the Chief Justice.  I believe that a strong Secretariat would go a long way in assisting in the selection and appointment of Judges.


Prashant Padmanabhan:  You were part of the collegium both in the High Court and in the Supreme Court. What is the kind of enquiry collegium make about the philosophy of prospective judges before recommending someone as High Court or Supreme Court Judge?   

Justice Madan Lokur (Retd): We have detailed discussions about every candidate or prospective candidate for appointment as Judge.  The Collegium meetings are taken very seriously and the discussions are not cursory or casual.


Prashant Padmanabhan:    Whether the judgments of the High Court Judges (in the zone of consideration) are called for and a comparative assessment made before names are recommended to the Supreme Court? 

Justice Madan Lokur (Retd): No, for the reason that having spent a few years in the Supreme Court before entering the collegium, the collegium Judges are expected to be aware of the judgments of almost every senior High Court Judge.


Prashant Padmanabhan When eligible lawyers are searched for elevation, is it from a pool of several names or some names are picked up by individual Judges of the collegium based on their subjective satisfaction? If it is from a pool of lawyers, how wide is that net? How do you assess comparative merit, in the absence of an objective test? If it is from a few names, how do some lawyers get in there, when there are lot of other equally competent lawyers left behind?        

Justice Madan Lokur (Retd): As far as I am concerned, when I was the Chief Justice of Gauhati and Andhra Pradesh High Courts, I did have discussions with lawyers and Judges to elicit information about who could be elevated as a Judge of the High Court.


Prashant Padmanabhan:  In many of the States, High Courts do not fill up the vacancies in the lower judiciary. Law Minister had commented that filling up these vacancies is the sole responsibility of High Courts and State Governments.    Recently, CJI Gogoi also made a reference to the non-filling up the vacancies meant for SC/ST category in the Kerala’s Judicial Service. What are your suggestions?

Justice Madan Lokur (Retd): The Supreme Court has given a schedule for the selection and appointment of Judges in the District Judiciary in the case of Malik Mazhar Sultan. I think if that schedule is adhered to, the number of vacancies will come down to zero.


Prashant Padmanabhan:  Every year all the seats meant for IAS/IFS/IPS officers are filled up. No government has ever taken a stand like our High Courts that there are not enough qualified candidates. if the High Courts do not fill judicial vacancies, how can the Judiciary, blame the Government for pendency of court cases?

Justice Madan Lokur (Retd): You cannot expect the Judiciary to appoint incompetent persons. This is not to say that incompetent officers are appointed by the Government. But surely, no one should even think of suggesting that unqualified or ineligible persons should be appointed to Judiciary.  It might be a good idea to recruit lawyers at the lowest rank of the judiciary after they have put in one or two years of private practice rather than directly after passing the law examination.


Prashant Padmanabhan:  As per Supreme Court guidelines each year exam for filling up vacancies in the lowest position in judiciary is to be held. But many of the States do not conduct it within time. SC has pulled up State Governments or even High Court Registrars for delay.  Since appointment of Judges and filling up judicial vacancies is a serious business, do you think that there should be a full time body with permanent members (not ad-hoc) who regularly conduct judicial service examinations?

Justice Madan Lokur (Retd):  Malik Mazhar case dealt with it.


Prashant Padmanabhan:  What is your opinion about an all India Judicial Service as mentioned in Article 312 of the Constitution of India?  NCRWC has made some interesting observations on this regarding the desirability of youngsters without any experience becoming District Judge at a young age.  How to address those concerns? 

Justice Madan Lokur (Retd):  I have no idea about the qualifications for appointment as Judges in the proposed all India Judicial Service.


Prashant Padmanabhan:  Is it proper for the Collegium to change its earlier decisions and then to recommend fresh names within a few days of the first collegium meeting? 

Justice Madan Lokur (Retd):   If the Collegium comes upon fresh relevant and significant material after it has taken a decision, it can convey to the Government that it withdraws its recommendations.


Prashant Padmanabhan:  Should the collegium meetings should be more transparent? Should reasons for selection or non-selection, can be put to public notice?

Justice Madan Lokur (Retd):  Issues of privacy, confidentiality etc are involved and it may not be advisable in all cases to give reasons. and then to support those reasons with evidence.


Prashant Padmanabhan:  Should the office of the Chief Justice of India should be under the RTI Act? 

Justice Madan Lokur (Retd):   No comment as the matter is pending in SC.


Prashant Padmanabhan: What is your opinion on the new norms regarding oral mentioning by the present CJI? 

Justice Madan Lokur (Retd):    I am not aware.


Also read: Justice Madan B Lokur (Retd.) in conversation with Rajdeep Sardesai at The Leaflet’s ‘State of the Indian Judiciary’ programme on January 23, 2019


Diversity of benches


Prashant Padmanabhan:  Every single sitting judge of the United States Supreme Court has attended Ivy League law schools. Do you think that similarly there is a class bias in selection of Judges to the Supreme Court of India?      

Justice Madan Lokur (Retd):   No, there is no class bias.


Prashant Padmanabhan: In the Supreme Court of India, maximum number of Judges are from four High Courts, with Bombay topping the list.  Sixteen puisne judges and seven CJIs have been from Bombay. At present there are three Judges whose parent High Court is either Delhi or Bombay.  There are only two Judges from a big High Court like Allahabad.  Allahabad High Court is having maximum number of Judges among all the High Courts in India. whether such High Courts ought to be properly represented in the Supreme Court of India?     

Justice Madan Lokur (Retd): Yes, all the High Courts should be given adequate representation in the SC and there should not be an overload of Judges from any particular HC.


Prashant Padmanabhan:  For a long time since the retirement of CJI K G Balakrishnan, there is not a single Dalit Judge in the Supreme Court of India.  There is not enough representation in the High Courts as well.  Throughout the history there were very few Dalit Judges appointed to the Supreme Court.  Why?

Justice Madan Lokur (Retd):   I don’t know.


Prashant Padmanabhan:  There have been only eight Justices who are women at the Supreme Court of India, so far.  Is the number satisfactory?    

Justice Madan Lokur (Retd): In many countries there have been less than eight woman Judges.  I have no comment on whether the number is satisfactory or not.


Prashant Padmanabhan: How do the collegium ensure diversity in selection and appointment of Judges to the High Court and Supreme Court? 

Justice Madan Lokur (Retd):  Collegium has detailed discussions as already mentioned above.




Prashant Padmanabhan:  Do you think that there should be supervisory jurisdiction for the Supreme Court over High Courts?

Justice Madan Lokur (Retd): No.

Prashant Padmanabhan:  Can a sitting Judge of the Hon’ble High Court be punished for contempt of Court? 

Justice Madan Lokur (Retd):   I think the law permits this.

Prashant Padmanabhan:  Can a Judge of the Supreme Court be punished for contempt of Court? 

Justice Madan Lokur (Retd): I think the law permits this.



On Justice Karnan


Prashant Padmanabhan: During the pendency of suo moto contempt against Justice Karnan, Supreme Court by its Order dated 01.05.2017 directed medical examination of Justice Karnan.  You were part of that Bench of seven senior most Judges of the Supreme Court. There was no law which authorized the Supreme Court to issue such a direction.  Even the yet to be notified Mental Health Act of 2017, mandated “informed consent” to testing.  Ms Indira Jaising, Sr.Adv. had been critical of this Order.  Any comment? 

Justice Madan Lokur (Retd):    No comment.


Prashant Padmanabhan:  Bar and Bench made an interesting report about the speech made by you, wherein you were quoted as saying, Indian Judiciary is far more restrained than other jurisdictions.  You have given the example of Sri Lanka, where the court of appeal (equivalent to the High Court here) restrained the Prime Minister and Cabinet from functioning in their respective offices.  It seems that you have mentioned that “If the (Supreme) Court tells the Prime Minister of India not to go to office, the (Indian) Judiciary has had it.”  Don’t we have an instance of Prime Minister Indira Gandhi’s election being set aside by Allahabad High Court. In the Supreme Court, Justice V R Krishna Iyer granted her only a conditional stay, which gave rise to declaration of Emergency.   

Justice Madan Lokur (Retd): This is a completely different situation.  The situations are not comparable at all.


Constitutional morality


Prashant Padmanabhan:  There was a recent comment by the Law Minister that ‘constitutional morality’ should not differ from Judge to Judge. Attorney General KK Venugopal also pointed out as to how this doctrine was applied by Judges having opposite views to justify their respective standpoints in Sabarimala judgment. Dr Upendra Baxi on the other hand, finds nothing wrong in applying this principle. Will it give rise to an amorphous concept like ‘basic structure’ giving wide discretion to the individual judges to interpret the Constitutional provisions according to their philosophy ?   and give new power to the Court to strike down legislations outside the Constitutional provisions like Articles 14, 19 and 21?

Justice Madan Lokur (Retd):  I have no views on Constitutional morality, one way or the other.


Challenges to Rule of Law


Prashant Padmanabhan:  Are you happy with the justice delivery system?

Justice Madan Lokur (Retd): We need to discuss sustainable judicial reforms in all respects starting from the recruitment of Judges in the District Courts and the Constitutional Courts; in continuing Judicial Education; case and Court management; delays in disposal of cases; procedural issues; the enormous number of pending cases and so on.   A detailed debate and discussion must be held on these issues so that our justice delivery system is significantly improved.


Prashant Padmanabhan:  When large number of people go to street protesting the implementation of a Supreme Court judgment, like in Sabarimala or the dispute between two factions of Church in Kerala, what should the State Government do?  The Government of Kerala, claims that they have tried to implement the Supreme Court Orders at both places but can’t resort to lathi charge of large number of protestors, which may lead to violent backlash or even bloodshed? If the Supreme Court Order could not be adequately implemented in a small State like Kerala, how can we ensure ‘rule of law’ when the Supreme Court pronounces its judgment on Ayodhya?   

Justice Madan Lokur (Retd): I have no views on what the State Government should do or should not do.  It is entirely for the State Government to decide.


Prashant Padmanabhan:  Do you think that the challenge to the rule of law in India, is as grave as in Pakistan? After a Christian woman Asia Bibi was acquitted by the Pakistan Supreme Court of blasphemy charges, there were several street protests and some of the protestors demanded death for not only Asia Bibi but also for the Judges who acquitted her.    

Justice Madan Lokur (Retd): I do not know all the facts of Asia Bibi case.  I am not competent to comment on it.


On January 12, 2018 press conference


Prashant Padmanabhan:  When the four senior-most judges of Supreme Court have decided to go public, could it have been little more revealing, clear as to facts, which an insider alone is aware of? 

Justice Madan Lokur (Retd): We said what needed to be said.


Prashant Padmanabhan:  Sir, one criticism about that Press Conference is that it created more doubts in the minds of general public than bringing in transparency. How would you deal with that criticism? 

Justice Madan Lokur (Retd): No comments.


Prashant Padmanabhan:  In the Press Conference, you had mentioned about a letter you have addressed to the then Chief Justice of India.  Subsequently, it was put to public domain.  That letter read, inter alia, read: “It is too well settled in the jurisprudence of the country that the Chief Justice is only the first amongst the equals – nothing more or nothing less. There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.” You have been Acting Chief Justice of Delhi High Court and Chief Justice of Guwahati and Andhra Pradesh High Court.  In your tenure as Chief Justice of these High Courts, what was the rationale yardstick adopted by you for assignment of cases?

Justice Madan Lokur (Retd): Off hand, I cannot recall but no Judge made any complaint to me.


Prashant Padmanabhan:  In the book titled, God Save the Hon’ble Supreme Court, Mr Fali Nariman has made a detailed analysis as to the position of the Chief Justice of the High Court and also of the Chief Justice of India.  It seems that he does not agree with the stand you have taken in the letter regarding the position of Chief Justice of India. Any comment? 

Justice Madan Lokur (Retd): No comment.


Prashant Padmanabhan:  How often do Judges of the Supreme Court take criticism from legal luminaries seriously? Be it academicians like Dr Upendra Baxi or doyens of the bar like Mr Fali Nariman. 

Justice Madan Lokur (Retd): If an academic or a respected member of the Bar criticises me, I would certainly take it seriously.


Prashant Padmanabhan:  The Supreme Court has not appointed a single academician as Judge of the Supreme Court though the Constitution has a specific provision for that.  In your tenure as a member in the collegium, have you ever made an attempt to appoint an academician as a Judge of the Supreme Court? 

Justice Madan Lokur (Retd): I do not want to divulge the discussions in the Collegium.


Prashant Padmanabhan:  Mr. Gopal Subramanium had come on TV and complained that when there were insinuations from the side of Government regarding his suitability to be appointed as Judge of the Supreme Court, none from the Judiciary stood up for him.  What would you tell him? 

Justice Madan Lokur (Retd):  No comment.


Prashant Padmanabhan: What is your message to fellow Judges? 

Justice Madan Lokur (Retd):  No comment.

Prashant Padmanabhan: What is your message to lawyers, especially young lawyers?

Justice Madan Lokur (Retd):  Work hard and take your profession seriously.

Prashant Padmanabhan: Sir, your message on the Republic Day? 

Justice Madan Lokur (Retd): We are living in a great country. And we should all be proud of it.  We should strive to be better and better citizens in all respects, for the greater glory of the country.


This interview was conducted by Prashant Padmanabhan on behalf of The Leaflet on January 24, 2019.


[ALSO WATCH] Justice Madan B Lokur Lokur talks to Rajdeep Sardesai at The Leaflet’s ‘State of the Indian Judiciary’ programme on January 23, 2019

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