Why Outstanding Advocates Not Being Appointed As Judges? Need Answers From Central Govt : Justice MB Lokur

Justice Madan B Lokur, former Supreme Court Judge, on Wednesday (August 6), raised concerns about the rising executive interference in the judges' appointment process and called for more transparency on why the Government was not appointing certain candidates, despite their reputation as outstanding advocates.

"We have had several problems in the appointment of judges in the recent past. There has been considerable interference by the executive in the appointment process," Justice Lokur said, speaking at an event in Delhi.

Justice Lokur pointed out that though the Memorandum of Procedure for judicial appointments was finalised during the time when Justice Khehar was the Chief Justice of India in consultation with the Government of India, it has not been implemented so far.

He referred to the instance of Senior Advocate Saurabh Kirpal, who has not been appointed by the Government despite the Supreme Court collegium reiterating his name way back in January 2023. His name was recommended by the Delhi High Court in 2017 and was approved for the first time by the Supreme Court Collegium in 2021, Justice Lokur pointed out.

Justice Lokur then referred to the recent instance of Advocate Shwetasree Majumdar of the Delhi High Court withdrawing her consent for judgeship due to the delay by the Centre in appointing her.

"As far as she is concerned, everybody says she is an outstanding advocate, fit to be a judge. But even after all formalities being over, she was not appointed as a judge, resulting in her withdrawing her consent. We have had Akil Kureshi, who should have made it to the SC, but was bypassed, for reasons not having to do with his merit but for some cases he decided in the Gujarat High Court," Justice Lokur said.

He also mentioned the instances of Senior Advocate Aditya Sondhi and Advocate Rajesh Datar withdrawing their consent due to the Centre's delay. In the case of Advocate Datar, the persons who were junior to him in the same list were appointed, Justice Lokur pointed out.

"The appointment process must remain with the collegium. But if it goes into the hands of the executive, we have seen the kind of mischief that can be done. Seniority of persons can be changed. This is what is happening. Outstanding advocates, who should have been appointed without any difficulty, are not being appointed. We have to think about how to appoint judges. We have to think how to make things less opaque, not just from the side of Collegium but from the side of the Government. Why is the Govt keeping some names pending? Why is it that the Government is saying we are not going to appoint certain people? Why the Government is sending back certain names to the Collegium. These are questions which we need to ask and we should get answers from everybody, particularly from the Govt," Justice Lokur said.

Notably, Attorney General for India R Venkataramani was also present in the stage.

Conduct of judges while on the bench

Justice Lokur then highlighted the issue regarding the conduct of the judges on the bench. He referred to the order passed by the Supreme Court yesterday rebuking a Judge of the Allahabad High Court for allowing the conversion of a civil dispute into a criminal matter by saying that civil remedies are time-consuming.

"The Supreme Court said that it is an extremely sad day that this has happened. So the quality of judges that are being appointed.... I read a couple of judgments of a judge whose English nobody could understand," Justice Lokur said.

Justice Lokur highlighted that for the first time in the history of India, impeachment motions are pending in the Parliament against two High Court judges. Though he did not name the judges, he was referring to the cases of Justice Yashwant Varma and Justice Shekhar Kumar Yadav.

"So the kind of quality that is being demonstrated now, particularly with the fact that I think for the first time in history two impeachment motions against judges are pending, we have to be really careful about the kind of persons that we appoint and keep a check on the judges while they are on the bench to make sure these kind of incidents do not happen," he said.

On transfers

Justice Lokur then raised the issue of the transfer of judges.

"On the other hand, transfers happen left and right without any provocation or reason. In Delhi HC, Justice Muralidhar was transferred, everybody knows, during the riots, for passing an order which the Government did not like," he said.

Referring to the recent instance of 21 High Court judges being transferred, he said : "We don't know why they have been transferred. We don't know whether they are punitive transfers. It just says for "better administration of justice". We don't know what that means. If there is something wrong with the judges, isn't it better that they leave the justice system rather than going to some other High Courts."

On post-retirement appointments

He highlighted the issue of post-retirement appointments of judges as well as judges entering politics after demitting office.

"We have had a situation where a former Chief Justice of India apparently being rewarded with a Rajya Sabha seat. Another judge who has been rewarded with Governorship of one state. A third judge was rewarded with the Governorship of another State. We have had retired judges joining politics. A sitting judge resigned to join politics and actually got elected. Can we not somehow control these desires for post-retirement appointments?".

In this context, he quoted the famous statement of former Union Minister Arun Jaitley that pre-retirement judgements are influenced by post-retirement offers.

"These are things that must be discussed and there is no better place to discuss it than the Bar," Justice Lokur said.

He was speaking at a lecture event organised by 'The Global Jurist' in Delhi. The lecture on the topic "Morality in Judiciary : A Paradigm or Paradox' was delivered by Justice Abhay S Oka, former Supreme Court Judge.

The event was presided over by Justice Kailash Gambhir, former Judge of the Delhi High Court.

Attorney General R Venkataramani, Justice Vijender Jain, former Judge of the P&H High Court also spoke at the event.

The event can be watched here.

Also from the event - A Judge Should Not Bother About Future Prospects Or Popularity: Justice AS Oka On Morality In Judiciary