Govt not tolerant of judicial assertion, says Kapil Sibal

Sibal says NJAC would’ve made judiciary ‘another arm of govt’; executive appointing judges in no-collegium era of 1970s is incomparable with today’s ‘assertive’ regime.
Former Union minister and senior advocate Kapil Sibal says when governments don’t have a full majority, judicial space expands.(PTI File Photo)
Former Union minister and senior advocate Kapil Sibal says when governments don’t have a full majority, judicial space expands.(PTI File Photo)
Updated on May 06, 2018 11:32 PM IST
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Hindustan Times, New Delhi | ByHT Correspondent

Senior Congress leader, Rajya Sabha MP, former Union minister, and senior advocate Kapil Sibal has emerged in recent weeks as an important voice on the political controversy around the Supreme Court. He spoke to Prashant Jha on the fault lines between the executive and the judiciary, the crisis in the top court, and the fissures between the Opposition and the Chief Justice of India. Edited excerpts:

Q: What is at the root of the executive-judiciary standoff on judicial appointments?

A: When governments don’t have a full majority, judicial space expands. Coalitions make it di- fficult to take decisions. That gives the judiciary space to fill the vacuum. The executive cal- ls it judicial overreach; the jud- iciary says that since you don’t perform, what are we to do?

When you have absolute majorities, the majority wants its way and is intolerant of any judicial assertion. We are in the era of a majority government, which unfortunately also has an agenda and seeks to fill all institutional offices with RSS (Rashtriya Swayamsevak Sangh) pracharaks. There is an attempt to have like-minded people within the judicial system. That is the case of Justice KM Joseph - he gave a landmark judgment and the government has made up its mind to ensure that he is not elevated despite the collegium’s recommendation. That is the assertion of the majoritarian government telling the judiciary we will have our way.

Q: Do you think the collegium should have sent his name back to the government?

A: I am sorry they did not. I hope all of them will reassert the recommendation and send the file back. Any attempt not to do so will have a telling effect since you send a signal to other justices that if you render judgments against the government, your expectations of elevation will be jeopardised.

Q: But the collegium may be trying to take into account the government’s concerns on regional representation and send a consolidated list, including Justice Joseph?

A: What if they accept all others and reject Justice Joseph?

Q: But they can’t if it is sent back, right?

They (government) can say it is a fresh recommendation. They can keep the file pending. Regional representation was an issue on January 18, 2018. Why did they take over three months to send the file back? They could have given the reason then. But you hold on to the file, you hope that some member of the collegium will retire, then someone else will come; you can play politics. I don’t think the executive should be given the space to play politics. The judiciary should speak in one voice.

Q: Even if one was to accept your premise that the Bharatiya Janata Party (BJP) wants to push its own people in the judiciary, is it unique? Many point to the Congress track record of the 1970s.

A: That era is over. You have the 1993 judgment. Why talk about a time when there was no collegium? The appointment was then in the hands of the executive. In the present era, where the collegium has supremacy, the executive is asserting and that is where the conflict lies.

Q: Do you think the NJAC (National Judicial Appointment Commission) would have been a better model?

A: Given the mindset of this government, that would have been a much worse model.

Q: But maybe we would not have this scale of vacancies and standoff?

A: You would have transformed the judiciary into another arm of the government.

Q: The second fault line is internal to the judiciary. How do you look back at the press conference of the four judges?

A: The internal contradiction is the result of a lack of leadership. Any leader of any organisation must take his organisation with him. There will be dissent, differences of opinion. You bring it together, evolve a consensus. If the leader fails to do that, is in confrontational mode, does not listen to the four senior-most judges, you have this situation.

Q: But what has going public achieved?

A: That is even worse. Even after a public controversy, the judiciary becoming openly criticised; there is no resolution. You must give credence to those who came out publicly. No member of the judiciary at this level takes this extreme step unless there is an absolute roadblock. The bottom line is that judges within the system feel the system is not being run in a manner which upholds the integrity and independence of the judiciary.

Q: Let us frame the bottom line differently: Is the Chief Justice the master of the roster or not?

A: Yes he is. Let me concede that. Now, supposing the master of the roster does something inconsistent with the independence of the institution, where can that order be challenged - nowhere? So that will be the only order in the Constitution which cannot be challenged. Orders of the PMO (prime minister’s office), Cabinet, any other institution, can be challenged, but not an administrative order of the CJI. So that would be an exception. Where is this exception in the Constitution? It is inconsistent with the rule of law. How can an administrative order not find an avenue of challenge? There must be recourse.

Q: So there are two imputations here. As master of the roster, the CJI is allocating some cases with outcomes in mind; and the judges he is allocating the cases to would play along with the outcomes. Aren’t these allegations too drastic, too serious to be made?

A: Very serious allegations.

Q: But is there enough evidence for them?

A: I don’t want to comment on the merits. It would not be fair. If these allegations are correct, this requires a resolution. And the resolution should evolve from a full-court meeting through a corrective mechanism on the master of the roster issue. That is the structural reform which is required. We are not living at a time when the king’s word was absolute.

Q: Let me move to the third fault line, between the Opposition and the CJI.

A: There is no fault line. It is not an Opposition versus CJI issue.

Q: But you gave a notice to move a motion for his removal.

A: It is not a political issue. Not a single allegation in that is politically motivated. It relates to matters pending in court, decisions in court, cases allocated in court. Only the process is political.

Q: You are seen as the driving force behind the notice.

That is totally incorrect.

Q: You don’t want to take credit for it?

A: It is not a matter of credit or discredit. Was I the one who instigated the judges to air their angst? Was I the one who instigated proceedings in court which resulted in the orders being passed? There are certain things that happened in court; within the system, people expressed extreme frustration. It has nothing to do with me or any party.

Q: But once it happened, you were among those who felt the need for such a notice.

A: Yes, I was among the 71 who signed. I may have articulated it but was not the driving force.

Q: But even critics of the government, and judges who aired those grievances, said they do not see the CJI removal as a solution.

Give me another solution. Under the Constitution, there is no other solution. You can say lump it or let sleeping dogs lie. But when the problem impacts the independence of the judiciary, you have to find a solution.

But your move did not yield a solution and enhanced the risk of undermining judicial independence.

So, you are saying, unless you have the numbers, you should not file a motion for removal. Does that make sense? See, it would have been good for the system if a committee was formed, and the judge’s name was cleared. We don’t want any doubts to remain.

Q: The risk is this: will judges start feeling that if they give a certain verdict, it lends itself to blackmail by a set of 50 politicians?

A: If it were to do with verdicts, you are right. But who has challenged the verdicts?

Q: The perception is that this is to do with two verdicts - Loya and Ayodhya.

Let’s answer Loya. The motion was signed a month in advance – did we know the Loya verdict would come on the 19th (of April)? No. We sought time from the RS (Rajya Sabha) chairman’s office a week in advance. We were told he has no time till the 20th. As far as Ram Janmabhoomi is concerned, has anyone asked for adjournment? No. The matter is on. The Chief Justice is giving date after date. There is no verdict in the case.

Q: On Ayodhya, you appeared on December 6. It became a political issue in Gujarat, and you haven’t appeared since. Has the party asked you to pull back?

A: No. The party has nothing to do with it. The matter has not gone on merits. In any case, till October, I cannot appear in Court Number 1.

Q: Can the judiciary recover from these multiple crises or there is irreparable damage?

All institutions must evolve. No institution is perfect; no men are perfect. We are in the midst of a serious fault line, and it must be seriously corrected. The most significant thing that has happened is that this serious fault line is before the public.

Q: Is that a good thing?

Yes. It will be corrected. The judiciary will rise to the occasion.

Q: Will Congress, if it is elected, have a road map to correct structural issues in judiciary?

The judiciary’s independence must be preserved and protected zealously. The Congress will ensure it is done. The judiciary, too, must preserve and protect its own independence.

Q: But on issues such as appointment, where there is an executive role, what will the Congress do?

A: The way the collegium has functioned has much to be desired. It needs a revamp; but the judiciary should do it on its own. They must come up with answers. The present system has not functioned as it ought to, just like executive appointments were not beyond criticism.

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