Kapil Sibal
Kapil Sibal
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Courts not hearing important matters in a timely manner adds to the public perception against independence of Judiciary, Kapil Sibal

The constitutional courts are not acting in the liberal manner the Constitution framers expected them to, Sibal said in a webinar on the topic 'Independence of Judiciary'.

Shruti Mahajan

During a webinar held today, Senior Advocate and former Union Minister Kapil Sibal highlighted issues surrounding the growing perception among the people that the judiciary is not independent.

Sibal was delivering a talk on the subject of 'Independence of Judiciary' in an online seminar hosted by Advocate J Ravindran when he highlighted that independence of the judiciary is not just the independence of a judge as an individual, but also of the entire institution.

One of the causes for questions surrounding the independence of the judiciary, Sibal said, was,

“We know for a fact that judges have been transferred when they delivered or were about to deliver seminal judgments.”
Kapil Sibal
Kapil Sibal during the online seminar
Kapil Sibal during the online seminar

Very recently, when a Division Bench of the Gujarat High Court made scathing remarks against the state government regarding its handling of the COVID-19 pandemic, the Bench was reconstituted. Citing this example, Sibal says that such instances are bound to give a certain perception.

The former Law Minister went on to indirectly cite the example of Justice Muralidhar’s transfer, albeit without taking specific names.

Back in February, Justice Muralidhar headed the Bench of the Delhi High Court that pulled up the Delhi Police for its inaction in the riots that took place earlier this year. A day after he passed the order, Muralidhar J's transfer to the Punjab & Haryana High Court was notified, sparking debates on the independence of the judiciary.

"Even though he had (earlier) agreed to the transfer, he was transferred overnight."
Kapil Sibal

The manner in which the Supreme Court has dealt with the COVID-19 migrant crisis may also have led to this perception becoming stronger, Sibal rued.

The Disaster Management Act has been invoked by the Ministry of Home Affairs (MHA) due to the pandemic. This Act empowers the government to formulate and bring in a National Plan to formulate policies for relief to be granted to various sections of society.

While the government has not framed this National Plan till date and many of the policy decisions remain absent, the Court has not intervened in the situation to hold the government accountable, Sibal pointed out.

In fact, when a law officer sought to tell the Court that as on March 31, 11AM this year, there was not a single migrant worker stranded on the road, the Court accepted this submission without asking questions of the government, Sibal added. He said that the statements made on behalf of the government were accepted by the Court without so much as a question.

Sibal also highlighted the growing trend of charging persons under draconian laws such as the Unlawful Activities (Prevention) Act (UAPA). He said that this Act is being used mainly against students, journalists, and Dalit rights activists, among others. Bail pleas filed by these persons are not heard in a timely manner, Sibal said. He added that the growing concerns with respect to COVID-19 raised in these pleas are not heard by the courts expeditiously.

“This shows that very important matters are not heard by the courts in a timely manner and these are the reasons there exists a perception that judiciary is not independent.”
Kapil Sibal

The secrecy around appointment of judges and the concept of master of the roster also add to this notorious perception, the Senior Advocate suggested.

The appointment of Judges is a “closed-door proceeding” conducted by the Collegium comprising the Chief Justice of India and four puisne Judges. Not only is this process bound to cause friction among Judges in the Collegium, there is also secrecy around the same, Sibal said in the webinar.

“We see Chief Justices from High Courts coming to the Supreme Court, they bring their likes and dislikes and then they lobby for the Judges they like... And nothing is hidden from the Bar.”
Kapil Sibal

Further, the manner in which certain matters concerning specific parties get placed before a certain judge also raises questions about the functioning of the judiciary.

“These are administrative decisions and we cannot challenge them.”
Kapil Sibal

The former Law Minister also highlighted two recent instances when individual judges, and the sitting Chief Justice of India of that time, were found to have acted in a manner of impropriety.

Refraining from taking names, Sibal said that one was when a sitting CJI accused of sexual harassment sat in on the proceedings concerning these allegations on a non-working day and the order passed did not reflect his name as one of the judges on the Bench.

Second was concerning the sitting CJI against whom a motion of impeachment was moved in the Rajya Sabha in 2018, Sibal says referring to retired CJI Dipak Misra.

“These are two serious instances of questionable conduct of higher members of the Judiciary, but there are many more instances across the board.”
Kapil Sibal

Sibal concluded his talk to say that the manner in which the constitutional courts are functioning is perhaps, in his opinion, not the way the Constitution framers intended.

“The Constitutional Courts are perhaps not acting in the liberal manner as, I believe, the Constitution framers expected them to.”
Kapil Sibal
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