Kapil Sibal at Idea Exhange | ‘Corruption, misconduct, partisanship: Judiciary hasn’t responded to these issues institutionally… that’s disturbing’

Over the years, the judiciary has not responded to these issues institutionally. And that’s very disturbing. If you do not respond to it, then the chairman of the Rajya Sabha or the political party which is in power will say, we want the NJAC (National Judicial Appointments Commission) revived. We want to decide who should appoint judges. As if the NJAC has anything to do with the allegations. We should have had these debates much earlier as to why the institution is not responding to its failings in dealing with issues that reduce public credibility in the institution, and that’s very serious.

On transparency in judiciary

Was there transparency in Gogoi’s case? Did anybody put out anything? What happened in Shekhar Yadav’s case? When you talk about transparency, you can’t possibly be selective about it

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Apurva Vishwanath: But this is also the first time that the court put out these documents in the public domain.

Well, that’s their wisdom. Whether that was right or wrong, time will tell. If the source of the document is the court itself, then people tend to believe it. Whether it’s true or not… It’s a dangerous precedent.

Apurva Vishwanath: So what should be the institutional response?

The institutional response should be a mechanism that must put in place in writing as to what should happen. Since under the Constitution, they have no powers except for the Parliament to impeach. So if 100 members of the Lok Sabha or 50 of Rajya Sabha don’t move a resolution, you can’t impeach the judge. So, therefore, all you can do, at least the limited powers that they have given to themselves, is not to assign work to the judge. But look at the irony. Even when Judge Ramaswami was exonerated, they still didn’t give him work. So they don’t go by their own standards. This should be decided in consultation with the Bar. There should be a broad-based committee which discusses these issues, and then you have a mechanism.

An ordinary case of financial corruption doesn’t deal with the institution. But if a judge is alleged to have done something like that, it’s the institution that gets tainted. So, the response should not be like a response to an ordinary act of criminal misappropriation. The damage to the institution is far greater. If a bureaucrat goes to jail, it’s limited to the bureaucrat. If a judge goes to jail and is prosecuted, every litigant will believe that every judge is corrupt. That’s the danger. And we have to be very careful both as journalists, citizens, and as lawyers, when we start doing these things. You cannot prosecute anybody till a sanction is given. That’s why a preliminary inquiry. Now we have decided already that the gentleman is corrupt without that stage having arrived. That’s very sad for the institution. Suppose the judge is found to be innocent, what will be the charge? That you protected the judge? And if he is found to be guilty, what will the litigant say in every case that he loses? The judge has taken money?

Apurva Vishwanath: But this in-house inquiry mechanism has been developed over the years.

Was there transparency in Gogoi’s case? Did anybody put out anything? Whether he’s right or wrong. What happened in Shekhar Yadav’s case? When you talk about transparency, you can’t possibly be selective about it.

Liz Mathew: Do you think this incident could be a ploy to resume the discussion on NJAC?

No, it’s certainly not a ploy but the alleged incident is being used as an opportunity by the government to now say that this is the time to strike. The government is using this as an opportunity to bring back the NJAC, which was struck down by the court. The whole problem starts with the process of appointment, if you get the right kind of person on the Bench, he/she will ultimately deliver. So, you have to fix that… But nobody is willing to part with their power, neither the court nor the government.

On transfer of judges

When you transfer a judge whose reputation is ‘somewhat suspect’, without proof, then the court to which he goes is not happy. And he is also not happy. Transfer is not a solution. If a judge is suspected, investigate

Apurva Vishwanath: But after the 2015 verdict how can the government bring back the NJAC in the form that it was brought in the 99th Amendment?

They can bring it back in another form. By the Parliament passing the law, just tinkering with that act, the court will be on the defensive. I did some investigation about who are the judges who actually go to the High Court? I found that almost 50 per cent are government pleaders. How do you become a government pleader? If 50 per cent become High Court judges or government pleaders, then the lawyer who is practicing will say to himself, let me first become a government pleader. He may have no practice. He’ll go to the party in power and ask to be made a standing counsel. Then he is extremely loyal to the government in every case. Then the government gets the message and wants to  recommend him as a judge. That judge is appointed in the HC, committed to that ideology and that government. Then he comes to the SC. If the source of recruitment is bad, the outcome will be bad. Deal with the source.

Manoj CG: The groundwork for NJAC was done by the UPA, although the bill was passed when the BJP came to power. Now most of the Opposition parties are not in favour.

Take PMLA (Prevention of Money Laundering Act). This was introduced by us. Take criminal procedure code, it was introduced by the British. The real issue is who uses that law and who implements that law? A police officer, under the code of criminal procedure, under BNS (Bharatiya Nyaya Sanhita) now, can misuse this statute. You can arrest an Imran Pratapgarhi. For a poem. I just argued that case. They say this is a great law. So, this whole thing is a bogus debate. You have seen the CEC (Chief Election Commissioner). The less said about it, the better. You see the office of the Governor. That is more like the long arm of the government. You see the ED, the CBI. Why is this happening? Because those sitting there, feel that whatever they do will be endorsed by the powers that be.

Apurva Vishwanath: But the NJAC judgement leaves us with the fact that the primacy of the judiciary in appointments is part of judicial independence. Do you see that changing with a new version of NJAC?

It all depends. There is a judicial veto here as well, but does anybody listen to it? There are judges who are transferred and then they are not transferred. It’s not institutionalised. One transfer is when a good judge is transferred to elevate him. The other is ‘let me transfer him out’. Punitive or non-punitive. Now, when you transfer a judge whose reputation is ‘somewhat suspect’, without proof, then the court to which he goes is not happy. And he is also not happy. Transfer is not a solution. If you find that this judge is suspected of doing this, get an investigation done. If you give that kind of investigation to the government, they’d love to misuse it. So you have to have an investigative mechanism within the SC.

Raj Kamal Jha: In the alternate committee you propose, which will have civil society members too, who has the veto? The government or the judiciary?

Nobody has a veto. The committee will have a recommendation, and it will be mostly unanimous because when you are doing this exercise, each member of the committee will be looking at good people in the court. But you will have twice the number of people, twice the number of vacancies. And that decision is then given to the government that you have a choice now. But you can’t just pick somebody else that you like to make him a judge. That reduces discretion. Then what is the role of journalists in this? What happened in Sushant Singh Rajput’s case? It is the responsibility of journalists when dealing with issues that affect reputations, privacy and women.

Shyamlal Yadav: In 2009, there was a debate about the 1997 resolution of the SC declaring judges’ assets. Last year, it was withdrawn. Electoral candidates, bureaucrats, and ministers have it in the public domain. Why not judges?

I agree with you. But what will happen? When it is in the public domain, people ask you where the asset came from. Inquiry will begin. The problem is, you can misuse that information to destroy the institution.

Vikas Pathak: Should there be a three-language formula or do you agree with what the DMK is saying about it being a backdoor Hindi push?

The three-language formula has not worked. Them saying that if we were in Parliament, we would have engineering and medical books translated into Tamil – what kind of statement is this? So if you translate it, what will you get? It is absurd for leaders of this nation to say these things. Fifty-nine per cent of the GDP comes from the service sector, which uses English. So your wealth comes from using English, but you want to do everything in Hindi? There is AI. There is a lack of skills. Look at the state of education, health, stunted children, anemic women, disparity in wealth, MSME sector that has been destroyed. These are issues that impact the tomorrow of our country. And you are talking about the three-language formula and hours are wasted in Parliament because next year elections are in Tamil Nadu. When I hear UP Hindi, I don’t understand it. I understand Hindustani. Your national language could be Hindustani — a mix of Hindi and Urdu. The art of communication is the ability to make the other person understand. If I speak in Sanskritised Hindi, nobody will understand, it’s not a link language. Good Hindi isn’t a link language.

Vikas Pathak: A matter that is waiting to erupt is the delimitation controversy.

This is too volatile an issue, too divisive an issue, and there are too many challenges in front of us as a nation that this should not be given any priority.

Apurva Vishwanath: The other big thing on the legislative agenda is the Waqf bill.

People don’t understand what a Waqf is. If it’s a building that has been used as a school or for charitable purpose over the years, it becomes Waqf. If someone is reading namaz for the last 50 years on your land, it’s Waqf. When there are encroachments, there is misuse of Waqf property. You have to deal with that. But you can’t sort of throw the baby with the bathwater.

Apurva Vishwanath: But the government’s argument is that the government land is encroached.

How do you decide it is govt land?

Rinku Ghosh: Despite a court stay on filing petitions under ‘The Places of Worship Act’, the status of shrines continues to be questioned. Can the law can be protected?

They want to make it a storm because it’s politically profitable for them. The Act will be decided by Supreme Court. What’s the place of worship which shall not be demolished? Say, Ajanta Elora. It shouldn’t be demolished. Some of these constructions are archaeological sites, they may be mosques, but they are archeological sites. It’s a nuanced debate. ‘He was reading namaz there, so demolish it’ — this is no way to deal with our people and our polity. It’s a very sad state of affairs.

Rakesh Sinha: It has been almost three years since you left the Congress. You called for internal reforms in the party. What do you think of the others in the group who don’t speak up? Also, why didn’t you join a party?

I have never commented on the Congress ever since I left and I don’t intend to. I have been grateful to the Congress for what they gave me. It is because of the Congress that I was recognised as a politician, was a minister in the government. and was able to discharge my responsibilities. I may have had my differences of opinion with the Congress but I will never criticise the Congress or my colleagues. I don’t think that’s the way any politician should function. I didn’t join a party because I’m a Congressman still. I believe in the ideology. I believe in an inclusive India. I believe in India where we should not be bickering about language, colour, creed, caste. I think my only identity in this country is that I am a citizen of this country.  But the State doesn’t look at it like that. They look beyond you being a citizen. And that’s the source of all trouble in this country, which has destroyed the very fabric of India. Therefore, destroy Aurangzeb’s tomb. What is all this? What does it get you? Except garnering votes.

Manoj CG: You’re a politician in the Opposition space. After the Lok Sabha elections, the INDIA block is kind of dormant. The leadership has not met.

I’m very troubled by that. Because in the absence of an Opposition, you will have this government do whatever they want. Unlimited discretion. If you want to be a real INDIA bloc Opposition, then first thing you must do is to have a secretariat. In that secretariat, you must have a convener who will be talking to every political party. Then talk about their view on delimitation. What do you think of the Places of Worship Act? Once that happens, there will be cohesiveness. You should be constantly in touch with the non-political players in the country. You need to bring all the stakeholders who have a stake in the future of the nation. The other problem is that they don’t want to even reach out to some of us; we are with them.

Jatin Anand:  What do you think of AAP completely going out of the narrative.

The most important thing in politics is consistency. And if you deviate from that, you would be exposed. So for the BJP, their consistency is ‘hate politics’, and they have never deviated from it. That’s why they have succeeded. We are inconsistent with everything that we should be consistent about. That is why we have failures.

Raj Kamal Jha: With people like US Vice President JD Vance saying ‘no judge should overrule us’ — when that line is breached, what’s the future?

Very dangerous, and that’s why I’m glad that judges in the US are standing up. All this can’t carry on for too long. The people will react. You will see a change. That is the only way. There are many Republicans who say I didn’t vote for this. That will happen here also. But it will take time.