The judiciary is undergoing its gravest crisis yet: Kapil Sibal in “Shades of Truth”

23 September, 2018

Kapil Sibal, one of the Congress’ lawyer-spokespersons, who held three portfolios under the Manmohan Singh-led United Progressive Alliance government, is now a sitting Rajya Sabha member of parliament from Uttar Pradesh after losing the 2014 Lok Sabha elections. Despite being busy with responsibilities of the party and his legal practice, he wrote yet another book. His previous books include two poor attempts at writing poetry collections. For the first time he has written prose, Shades of Truth: A Journey Derailed, which has been launched this month. Since he fancies the idea of himself as a poet, Shades of Truth, too, opens with a poem, “There Hangs A Tale,” which Sibal says, “encapsulates everything that has gone on in the last four and a half years.”  

At the launch, the former prime minister Manmohan Singh said the book is a highly researched, comprehensive analysis of the functioning of the Modi government. Sibal made an impassioned plea for coalition governments and against the myth of the need for strong leadership that brought in Modi. “The great leader gave us demonetization… he gave us flawed GST,” he said. With the arrogance of the UPA days not visible, he was far more convincing. It was clear the book is Sibal’s contribution to the Congress’ 2019 arsenal. On the stage were Chandan Mitra of Trinamool Congress, Sitaram Yechury of CPI-M and Sharad Yadav of Samajwadi Party, which prompted the journalist Sreenivasan Jain of NDTV, the moderator, to joke whether the event was a book launch or a mahagathbandhan—grand alliance.   

The first half of the book attacks Prime Minister Narendra Modi—who Sibal writes does not understand democracy—the NDA’s tenuous relationship with institutions, the failures of foreign policy, and what he terms “the infiltration of RSS-minded people and ideologues” in key posts of power. The second half is about defending the Congress and UPA by portraying the 2014 trouncing as the UPA’s inability to resort to the same tactics and “art of manipulation” as the BJP. 

In the following extract, Sibal analyses the Indian judicial system. As a senior advocate who specialises in constitutional law, Sibal trains a highly critical eye on the process of judicial appointments, which he asserts is seriously flawed. He describes the upheavals in the judiciary—over the collegium system—during the NDA regime as possibly the “gravest crisis yet” to face the judicial system.

Of late, concerns have also been expressed about the inability of the court to stand up to the government. On 21 March 2018, Justice [Jasti] Chelameswar charged the government with being selective in accepting recommendations of the Supreme Court collegium for the appointment of judges to the high court. He said that the government, wherever it wished, ignored or deferred consideration of names it was uncomfortable with. This, he said, negatively impacted the independence of the judiciary. In the letter, Justice Chelameswar demanded a full court sitting on the judicial side to discuss the turn of events. This letter was perhaps in the context of the communication sent by the Ministry of Law to the chief justice of the Karnataka High Court, Justice Dinesh Maheshwari, stalling the elevation of a district session judge, P Krishna Bhat, to the high court, despite reiteration by the Supreme Court collegium.

According to the law, if the Supreme Court collegium reiterates a recommendation, the law ministry is obliged to take the process of appointment of the judge forward, following which warrants of appointment are issued. Apparently, Bhat’s name was first recommended by the Supreme Court collegium in August 2016. Allegations made against Bhat were found to be incorrect and concocted by an inquiry conducted by the then chief justice of the Karnataka High Court. In April 2017, Bhat’s name was reiterated by the Supreme Court collegium for elevation to the high court. Surprisingly, in December that year, the Ministry of Law, contrary to all norms of propriety, forwarded to the chief justice of the Karnataka High Court a fresh complaint by the same judge, whose earlier complaint against Bhat was found to be fictitious. The fact that the present chief justice of the Karnataka High Court reopened the inquiry against Bhat pursuant to the communication by the Ministry of Law, is perceived as an act of capitulation to the executive since this was done without referring the matter to the chief justice of India. Reportedly, the Karnataka High Court’s administrative committee, on 23 March 2018 decided to close the matter as it found no evidence against Bhat to support the allegations.

Yet another concern is the manner in which judges are transferred, or their transfers, if made, withheld from one high court to the other. A recent example of this reflects the crisis within the judicial system. On 25 September 2017, Justice Jayant Patel of the Karnataka High Court submitted his resignation to the president of India following his transfer order from Karnataka to the Allahabad High Court where he would have been the third senior-most judge in the hierarchy. However, had he continued in the Karnataka High Court, he would have been elevated as acting chief justice upon the retirement of the incumbent, Justice Subhro Kamal Mukherjee on 9 October. There was speculation that Justice Patel was paying the price for ordering a CBI investigation into the Ishrat Jahan fake encounter case in his capacity as the acting chief justice of the Gujarat High Court. The CBI probe had led to the arrest of several senior Gujarat police officers and subsequently charge sheets were filed against them. They were alleged to be involved in the coldblooded killing of Ishrat Jahan, embarrassing the then Gujarat government headed by Narendra Modi. When Patel, who was the acting chief justice in Gujarat, was transferred to Karnataka, he was also passed over for elevation to the Supreme Court.

In September 2016, of the five chief justices appointed by the President, four were junior to Patel. In February 2017, the Supreme Court recommended nine names for appointment as chief justices of various high courts. Again, Patel’s name did not figure in the list, although he happened to be senior to all. The refusal to appoint Gopal Subramanium as a judge of the Supreme Court, despite the recommendation of the collegium, is also attributed to his role as amicus curiae when he persuaded the Supreme Court to entrust the CBI with the investigation into the Kausar Bi and Sohrabuddin Sheikh fake encounter case. The transfer of Justice Rajiv Shakdher in April 2016 from Delhi to the Madras High Court is attributed to his order in 2015, setting aside a lookout notice issued by the IB against Greenpeace activist Priya Pillai that prevented her from going abroad to address a UK parliamentary group. Justice Shakdher defended her right to travel and express dissent.

Apparently, the collegium recommended his transfer back from Madras to the Delhi High Court. He is now back in the Delhi High Court. The arbitrary transfer of Justice Abhay Thipsay in April 2016 from the Bombay High Court to the Allahabad High Court is equally disturbing. Justice Thipsay, who was the judge of the Mumbai sessions court in 2006, imposed life sentences on nine of the 21 accused in the Best Bakery case during the 2002 Gujarat carnage. Pursuant to the order of the Supreme Court, this case was transferred out of Gujarat since the Modi-led state government was not seriously investigating and prosecuting matters relating to the carnage. Thipsay was later elevated to the Bombay High Court but unceremoniously transferred to the Allahabad High Court.

In another unsavoury episode which suggests the obduracy of the central government in disregarding the recommendations of the collegium, Justice KM Joseph was overlooked for elevation to the Supreme Court. The obvious reason seems to be that Justice Joseph, chief justice of the Uttarakhand High Court, quashed the imposition of President’s Rule in the state in April 2016, holding it to be unconstitutional. The Ministry of Law gave three specious excuses for opposing his elevation—that there are other more senior deserving judges, that the Kerala High Court is already adequately represented in the apex court and that there are no judges from the SC and ST categories serving in the Supreme Court.

Justice Chelameswar even questioned the collegium’s decision of not elevating Justice Joseph when five judges were elevated to the Supreme Court in February 2017. The collegium finally recommended his elevation in January 2018, which the union did not accept. Why the Chief Justice heading the collegium did not forthwith send back Justice Joseph’s name is a matter of serious concern. The collegium had met in May after the union returned Justice Joseph’s name, and unanimously agreed “in principle” to reiterate his name, but it did so belatedly. It was reported that the collegium failed to agree on other names to be sent along with that of Justice Joseph to fill the existing seven vacancies. This is curious, to say the least.

If we were to analyse the excuses given by the Centre for not accepting Justice Joseph’s name, the only conclusion possible is mala fide intent.

This is an excerpt from Kapil Sibal’s book, Shades of Truth: A Journey Derailed, published by Rupa Publications in September 2018. It has been edited.