Kapil Sibal during the CAN Foundation webinar
Kapil Sibal during the CAN Foundation webinar
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Time for Courts to realize that democracy in India is slowly being destroyed through political tools: Kapil Sibal

Touching upon contemporary issues like political defection, curbing of fundamental rights in Jammu & Kashmir and Police encounters, Sibal said that democracy is slowly being destroyed through political tools.

Shruti Mahajan

We are in a time when the democracy in India is slowly being destroyed through political tools and it is about time the Courts realize this, Senior Advocate and Member of Parliament, Kapil Sibal opined today.

Sibal made the comment while speaking in a CAN Foundation webinar on the theme, "Constitution and the Times: Four Decades of my Professional journey."

While discussing his professional journey, Sibal remarked that the times have changed and we are at a stage where the political class no longer needs amendments made to the Constitution to destroy democracy.

Touching upon contemporary issues like political defections, toppling of governments, curbing of fundamental rights of people in places like Jammu & Kashmir, or even encounters by the Police, Sibal said that democracy is slowly being destroyed through political tools.

"I think it’s time for Courts to realise that slowly and slowly, democracy is being destroyed in India through political tools, whether it’s using tenth schedule to their advantage or to topple governments or these encounters or spreading fear in a section of the community."

Reminiscing about working with legal luminary Nani Palkhivala, the Senior Advocate said that before the Kesavananada Bharati judgment, the Court appeared to be set to give the power to amend the Constitution to the Parliament.

Palkhivala "saved democracy" and it was after this judgment that the Basic Structure doctrine came into being in the absence of which the authoritarian mindset could have led to the destruction of democracy in the years to come.

However, Sibal was then quick to quip that now the political classes do not need to amend the Constitution to destroy democracy. This act of destruction is being done through other political tools. Sibal went on to say,

"These are tools to destroy the equanimity of India. These are tools to destroy the conscience of our Constitution, these are tools to destroy the future of our children. I think Courts must recognise this fact and take up matters suo motu."

The Former Union Minister was also asked about the role of the media in the current times to which Sibal said that what was being exercised by the media is not "Free speech but rather commercial speech".

The "assertive nationalism" demonstrated by the media personnel particularly on TV News is backed by "big bucks" and this needs to be viewed as such, Sibal said. The Courts need to be cognizant of this development, Sibal added.

Advocate Sunil Fernandes, a co-moderator for the virtual discussion
Advocate Sunil Fernandes, a co-moderator for the virtual discussion
Advocate Shivang Dubey, also moderated the virtual discussion
Advocate Shivang Dubey, also moderated the virtual discussion

Juxtaposed against the "commercial speech" of the media, there are people in the region of Jammu and Kashmir, who are denied their fundamental rights by way of curbs on internet services in the region. Saying that he has strong views on this, Sibal said that the citizens of this country cannot be treated differently.

"You can’t treat your citizens differently as long as you recognise them as your citizens... You can’t, for millions of people, say that they are not entitled to their fundamental rights and I think it is unfortunate that even a judgment of the Supreme Court is not being implemented."
Kapil Sibal on the internet restrictions in J&K

Not everybody in Kashmir is a "potential terrorist or a terrorist" Sibal said, adding in unequivocal terms that the elements facilitating terrorist activities should be dealt with strongly. However, this cannot be the reason to deny a whole people their fundamental rights, he said.

Sibal also expressed his reservations against the growing trend of encounters being carried out in the country and their glorification by a certain section of the media.

The Senior Advocate went on to express disappointment over the fact that the Courts have not "come down heavily" on the authorities in light of the encounters, the recent example of which was the killing of gangster Vikas Dubey by the Uttar Pradesh police, which is alleged to be a fake encounter by a section of the people.

"How can a democracy governed by rule of law ever accept encounter as a valid tool for doing justice… I think it is the most barbaric way. Then how are you different from a country that cuts off your arms for stealing?"
Kapil Sibal on Vikas Dubey encounter

Even the most hardened criminal has a right to legal representation before authorities and Courts. There could not be a bigger example to manifest this principle than the Ajmal Kasab case, Sibal said. What the terrorist did in India was for everyone to see and yet the government appointed a lawyer to defend this criminal, Sibal pointed out.

In this backdrop, Sibal expressed his thoughts on Lawyers publicly refusing to accept any briefs as was the case in the recent incident when Senior Lawyers like Mukul Rohatgi and Abhishek Manu Singhvi publicly announced their disinclination to represent TikTok before the Courts after a ban was imposed on the company by the Indian government.

"I don’t know whether they are justified or not but whatever their feelings are, they shouldn’t have made them public. You may not take a brief for whatever reason but you don’t have to prove your nationalism in public."
Kapil Sibal on the TikTok row

Sibal concluded his talk with an advise for the young lawyers not to be disheartened if they lose a case and said, "it may not be the law that is against you, a Judge maybe..."

The talk was moderated by Advocates Sunil Fernandes and Shivang Dubey and organized by the CAN Foundation.

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