New Delhi: Asserting that the confidence in the judicial system seems to be on the decline in people’s perception, Rajya Sabha MP Kapil Sibal has said alternatives can only be found when both the government and the judiciary accept that the systems in place, including for judges’ appointments, are not working.
In an interview with PTI, Sibal talked about what ails the judicial system, citing examples of how bail is not being granted in most cases by district and sessions courts, and highlighted the issue of the controversial speech made by Justice Shekhar Kumar Yadav of the Allahabad High Court last year.
Sibal, speaking as a lawyer and not as the president of the Supreme Court Bar association, refrained from commenting on the matter of alleged discovery of a huge stash of cash at the residence of Delhi High Court judge Yashwant Varma.
“There is an in-house procedure to deal with the matter. Now, in the absence of facts I don’t think as a responsible citizen of this country I should be commenting on this,” he said on the matter. Sibal made the remarks on Saturday before the Supreme Court made the in-house inquiry report in the matter public.
Asked if he has concerns about the judicial system at large, Sibal said, “What has been happening over several years is that there have been concerns about the judiciary on various aspects, one is the concern about corruption, and corruption has several meanings. One meaning is that a judge renders a judgement because of some pecuniary advantage. The other form of corruption is to work contrary to his oath of office which is that he would render judgements without fear or favour.”
“I will give an example, there is hardly a judge in a district court and the sessions court who grants bail. Now it can’t be that in every case, the magistrates court or the sessions court has to reject bail. In 90-95 per cent of the cases, bail is rejected,” Sibal said, adding that there is something wrong with the system.
Is the judge afraid that if he or she grants bail, what will be the impact of that on the career, the senior advocate asked.
Sibal said the third form is that the judges are now openly endorsing a majoritarian culture and taking political positions.
“We had a judge in West Bengal who was openly endorsing the views of a political party and then of course he resigned and joined that particular party. We had a judge who openly said ‘yes I belong to the RSS’. We have justice Shekhar (Yadav) who said that in India the ‘majoritarian culture must prevail and only a Hindu can make India ‘vishwaguru’. He used some very derogatory terms for the minority community while sitting as the judge,” Sibal said.
Talking about Yadav’s case, Sibal said an in-house procedure was decided upon but nothing was heard after that.
“What happened, what steps were taken, there was a communication to the judge, he apparently disclosed his mind to the in-house procedure. What happened, we don’t know. Should it be made public or not? There are systems that have to be put in place,” he said.
Addressing a provincial convention of the legal cell and high court unit of the VHP at the high court on December 8 last year, Justice Yadav had made controversial remarks.
Speaking with PTI, Sibal said there are issues of corruption, of judges not performing functions according to their oath of office, of openly taking majoritarian positions, thereby inducing in the minds of the public the message that the majoritarian culture must be endorsed.
“These are things that need to be addressed urgently. Unfortunately, in many of these cases, the Supreme Court has not directly addressed these issues for reasons I cannot possibly fathom,” Sibal said.
What is the mechanism to deal with corruption, he asked and added that the only mechanism that is there as far as the higher judiciary is concerned is Article 124 of the Constitution.
“We moved an impeachment motion, signed by more than 50 members of the Rajya Sabha, and that has not seen the light of the day. There was earlier an impeachment motion against a CJI, that too was blocked. So if you cannot move forward under the constitutional process and there is no alternative effective mechanism to deal with such issues, where do we go?” the Rajya Sabha MP said.
“That is the question we must ask ourselves and that is the question the judiciary must ask itself,” Sibal added.
He said the perception of the public certainly is that the confidence that “we had in the judicial system seems to be on the decline”.
Asked about his criticism of the Collegium system in appointing judges in the higher judiciary and what is the alternative, Sibal said that alternative can only be found if the judiciary and the government believe that there should be an alternative.
“Now the government believes that the National Judicial Appointments Commission (NJAC) is the solution. The Supreme Court Collegium believes that theirs is the best system. Unless both these institutions accept the fact that both versions of accountability and the process of appointment are grossly inadequate, only then can we have an alternative,” Sibal said.
The senior advocate said there can only be a solution when one states that there is a problem.
“So, if the Supreme Court itself realises that the Collegium system is not functioning in the manner that it should, only then can there be alternatives. Then we can come forward and suggest what the alternatives should be,” he said.
If the government believes that the NJAC is not the ideal solution for the process of appointment, only then there can be an alternative, he said, pointing out that the process should be transparent, looking at merit and not favouring persons who are ideologically and deeply committed.
“So, both institutionally, the government and the judiciary, must accept the fact that these systems that are in place are not working, once they accept that, there are a lot of solutions that are possible,” the former minister said.
