In people's perception, confidence in judicial system on decline: Kapil Sibal
New Delhi(PTI): 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.
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36 ex-judges slam Opposition move to impeach Justice Swaminathan
New Delhi (PTI): Thirty-six former judges on Saturday gave a call to people, including parliamentarians, to denounce opposition leaders' move to impeach Madras High Court judge Justice G R Swaminathan, saying such an attempt, if allowed to proceed, would cut at the very roots of democracy and independence of the judiciary.
On December 1, Justice Swaminathan held that the Arulmighu Subramania Swamy Temple was duty-bound to light the lamp at the Deepathoon, in addition to the customary lighting near the Uchi Pillaiyar Mandapam.
The single-judge bench said that doing so would not encroach upon the rights of the adjacent dargah or the Muslim community.
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The order sparked a row, and on December 9, several opposition MPs, led by the DMK, submitted a notice to Lok Sabha Speaker Om Birla to move a motion for the removal of the judge.
Taking serious exception to the move, the former judges in a joint statement said this is a "brazen attempt to browbeat judges who do not fall in line with the ideological and political expectations of a particular section of society".
"If such an attempt is permitted to proceed, it would cut at the very roots of our democracy and the independence of the judiciary," they said.
"We therefore call upon all stakeholders -- Members of Parliament across party lines, members of the Bar, civil society, and citizens at large -- to unequivocally denounce this move and ensure that it is nipped in the bud at the very inception," they added.
The statement emphasised that the judges must remain answerable to their oath and to the Constitution of India, not to "partisan political pressures or ideological intimidation".
"The message from all constitutional stakeholders must be clear and firm: in a republic governed by the rule of law, judgments are tested by appeals and legal critique, and not by threats of impeachment for political nonconformity," it said.
The statement was signed by former Supreme Court judge Krishn Murari J as well as ex-chief justices and former judges of different high courts.
The statement said the opposition party's move is not an "isolated aberration". It fits into a "clear and deeply troubling pattern" in India's recent constitutional history, where sections of the political class have sought to discredit and intimidate the higher judiciary whenever outcomes do not align with their interests, it added.
"The unprecedented bid in 2018 to initiate impeachment proceedings against then Chief Justice of India Dipak Misra, the sustained campaigns of vilification directed at Chief Justices Ranjan Gogoi, S A Bobde and D Y Chandrachud while they were in office," the statement noted.
"The targeted attacks now being mounted against the incumbent CJI, Justice Surya Kant, whenever a judgment/remark displeases a political constituency, are all manifestations of the same trend," it said.
"This is not principled, reasoned criticism of judicial decisions; it is an attempt to weaponise impeachment and public calumny as instruments of pressure -- a practice that strikes at the heart of judicial independence and the basic norms of constitutional democracy," the statement added.
