Kapil Sibal Interview: "Why are lawyers in India silent? I want them to speak out"

Former Union Law Minister and Senior Advocate Kapil Sibal recently launched a platform called Insaaf ke Sipahi - a people's movement to fight injustice.

In this interview, Sibal talks about the idea behind this platform, appointment of judges, misuse of institutions by the current regime and more.

Below is the video and edited excerpts.

You have recently launched a platform called Insaaf ke Sipahi - a people’s movement for justice. What is the idea behind this platform?

I have been actually thinking for the last one-and-a-half years, especially after the G23 political group fell apart, that the kind of injustices that I have seen since 2014 in this country, I have never seen before. The kind of injustice that is reflected in cases in court, I have not seen in the last 50 years in my profession.

I can understand injustice at an individual level, but now I find that the institutional structure of this country is also being used by the government to perpetrate those injustices. Therefore, the democratic fabric of this country, the institutional fabric of this country to deliver justice – and I don’t mean justice through courts but justice at all levels – is being slowly broken, demolished.

So, I thought about what I can do, which will not be opposed by anybody. If I were to form a political party, it would be opposed. If I were to join another political party, they’d say I have been bought over. So, I came up with this idea of Insaaf.

Insaaf (justice) is also the bedrock of our Constitution. The Preamble talks about justice - economic, social and political...Nobody can oppose this. Can anyone say, “No, we don’t want justice”?

It is a positive agenda for people to get together and fight the injustices that we are seeing. I have also created a website called insaafkesipahi.co.in

Anybody in the country can click on it and become an “Insaaf ka sipahi”. That’s the thought.

Is this intended to be a lawyer’s movement? The likes of which we saw pre-independence?

Yes! Why are lawyers in India silent? Some of them are politicized, I can understand that, but the majority of them are not politicized. They are still wedded to the cause of justice. I want to get them to start speaking. One way to do it is for them to join this platform.

The other thought behind this is the following and I will openly share it with you. How has the BJP become a force in India? By virtue of the fact that ordinary people in localities are wedded to the ideology which is propagated by the RSS. To that extent, it attracts some people who are in agreement with that ideology.

The same thing can happen with people who have become a Insaaf ka sipahi in their locality. That can be a permanent structural feature within that locality, around that street, where people can get together, and based on this concept of Insaaf, actually be a counterpoint to the injustices that are done on the ground. 

How is this platform going to address injustice? Don't we already have the court system for that?

It is work at several levels, because it should be decentralized. Former Cabinet Secretary, KM Chandrasekhar rang me up and said that he has become an Insaaf ka Sipahi. People from all walks of life can become a part of this programme. They can, at a decentralized level, try and do what they can for the injustice that has been perpetrated at that level. It is not going to be a centralized movement, it can’t be. I can't be handling the injustices of millions of people around the country. 

They (Insaaf ke sipahi) will go to the moffusil courts for the redressal of injustice. When a matter comes up here, we have lawyers here including me, who will fight for that cause. 

Moving on from Insaaf, you have been a parliamentarian and a lawyer for the longest time. Which role do you hold closest to your heart?

That is not the only thing that I do. I also write poetry. So, whatever I am doing at that moment is closest to my heart. I used to teach at a university. That was very close to my heart. I loved teaching. I love being a lawyer when I am in court and you would notice that I never bring my politics into the court. When I am outside (the court), I am a politician, I never bring law into it. That is the way it is. 

You mentioned that you don’t bring politics into courts. In that context, you are one of the most sought-after lawyers in cases against the Central government. Is that a result of a conscious decision you have taken?

I have always been for the citizens. If you look at the history of my career in law, I have hardly ever been for the State. I don’t actually believe in it. I will tell you why.

Why do we have a Constitution? Why do we have courts? The State epitomizes power. Power by nature and its exercise is unjust because every center of power wants to aggrandize power. There is an element of dominance and there is a victim of that dominance.

If you are on the side of power, you are not protecting the victim. Every lawyer first thinks in his mind that his duty, ultimately to the profession, is to protect the victim, because the powerful can always protect themselves. You cannot do a thing about the State; the State is very powerful. But very few people can fight the State.

A victim who has no means to fight the State, who will come to his aid except a lawyer? So, all my life I have been wedded to this cause. It is not just about this Central government, it is about any Central government. But more so this one, because of the kind of injustices I have seen, which I have never seen in my life before.

In a recent interview to PTI you said, “They are trying their best to create a situation in which the NJAC in yet another avatar may be tested in the Supreme Court once again.” What system of appointment of judges do you recommend?

I think both systems have deep flaws in their functioning. I am totally against the government having the last word in the appointment of judges. That spells disaster for the country.

I am also opposed to the way in which the Collegium system works. It is not a system which inspires too much confidence, considering recent events. Quite frankly, the judiciary too finds it very difficult because if the government stalls the process of appointment of judges, the courts are left with fewer judges and they can’t perform their functions. Therefore, there is much greater pressure on courts. At some stage, the system says, “Okay, maybe we should find a way out,” if you know what I mean. This is a problem. 

The worst thing is, the Chief Justices of the High Courts are looking to come to the Supreme Court. For that to happen, both the government and the courts must be on their side. I seldom find them, at that level, rendering judgments in a manner that is sort of…I do not want to say anything more. 

At the moment, I think the Collegium system has to be preferred. I certainly do not want the government (to have a say in judicial appointments). They have already captured all the other institutions. This is the last citadel of freedom that is left. 

You recently called the Enforcement Directorate the “Centre’s Valentine”. How has the ED changed over the years as an institution? 

What has happened is, when we brought it in and if you look at the history of the Enforcement Directorate prior to 2014, there is no such data that is available that tells you that all of it is directed against the opposition.

Out of the 121 proceedings that are going on by the ED, 115 are directed towards political opponents. That data itself gives you the answer. This has never happened before. 95% of all proceedings by the ED are against the opposition. You name one minister in the BJP government, either at the state level, or at the Union level, who is being proceeded against by the ED. Or some great industrialists who are great friends of the party - has the ED ever reached them, has the CBI ever reached them?

That data tells you by itself what is happening in this country. Pre-2014, this was happening as well, but at a much lower scale. 

No government can be given a clean chit for not having used the system. This is like a tsunami of injustice. You use every institution to target people who are speaking out against you, whether it be students, teachers, artists, journalists, even lawyers now… Where is this country going? How will freedom survive if this continues? 

Recently, Justice Rohinton Nariman in his speech said, “My friend Arun Jaitley, one thing he always stood for is freedom of speech”, in the context of the banning of the BBC documentary. What do you have to say about that?

I share the sentiments of Justice Rohinton. He has been one of the finest judges this Court has produced. The fact of the matter is that freedoms are being trampled upon in this country and we must fight against the State which seeks to dominate every aspect of our life. When you talk about freedom of speech, what freedom do you have when kids are being prosecuted under the Unlawful Activities (Prevention) Act (UAPA) for having done a dharna, for speaking out against the government? What freedom of speech are you talking about?

You recently celebrated 50 years of being in the legal profession in the Supreme Court. How would you compare the Supreme Court of the 70s-80s with its present day avatar?

Everything has changed. The world has changed. The environment has changed. The values have changed. Commodities are the centre of our life. Acquisition, commodities, greed, are the center of our human activities nowadays. You see that happening in our economic structure. 100 people in this country own assets worth ₹54 lakh crore, which will cover 18 months of our government’s functioning. 10 people of this country own assets worth ₹25 lakh crore. We are increasing poverty but producing more billionaires. Where are we going as a nation? But you can’t help it because the value system has changed. Within that system, how will you ensure that our children will move in the right direction? It is a big challenge for the future. I think we need to address it very seriously. 

The Supreme Court has changed radically. First, there are too many judges. When I started practicing, there were only 11 judges. The nature of litigation has changed, the nature of disputes has changed. There are laws enforced today which were never even contemplated at that point in time. The internet has brought in a lot of illegal activities, which now the drug lords, the mafias are using to overtake economies. Terrorism is on the rise. None of that was happening then. The cases that we did were cases which involved election petitions, freedom of expression, land disputes, things like that.

The nature of law-making and delivery of justice has completely changed. Judges don’t have the time now to actually think about matters, which is why for a lot of judgments, there are reviews being sought. Lack of time, lack of application of mind, is making the judicial system itself vulnerable. 

The change needs to be for good, but it doesn’t look so at the moment.

You recently argued at length about the anti-defection law being misused. According to you, how can the current Tenth Schedule be strengthened to curb repeated instances of horse trading and toppling of state governments?

On the 11th, at Jantar Mantar, I will give you an indication of my ideas as to what should be done in the context of defection. That is why the agenda for the future for the nation is going to be unraveled. A positive agenda.

How do you reconcile your extensive private law practice with public life?

The problem is, I find it very difficult now to actually be a constructive force in parliament, because there are so many people who are victims of injustice, who need my presence in court. Because I am an independent Member of the Parliament, I am unable to influence a lot of things. So, temporarily, I have made a choice to help people in court for the moment. The time will come, hopefully, when I will move back to parliament and try to influence decision-making there.

Have any former judges reached out to you in support of Insaaf? 

Yes! I have had a chat with Justice (retd) Madan Lokur. He was sympathetic. I have had a chat with Justice (retd) Deepak Gupta. These judges don’t want to be in politics. I was hoping Madan Lokur ji would come with me, but he is not available on March 11. I would have persuaded him to be on the platform. I think very many judges are sympathetic to it.