‘Mixed feelings about the judgment’

The senior Congress leader Kapil Sibal, an eminent lawyer who was the Law Minister in the United Progressive Alliance (UPA) government and one of the votaries of the judicial appointments commission, remains ambivalent about his stand on the apex court ruling striking down the National Judicial Appointments Commission (NJAC) Act. While he admits that the collegium system is “imperfect” and needs serious corrections, he, however, welcomes the scrapping of the NJAC Act, saying that it suffered from serious drawbacks. Excerpts from an interview he gave Frontline :

You have been very vocal against the collegium system and had pushed for the judicial appointments commission as the Law Minister in the UPA regime. The Congress party supported the Bill when the National Democratic Alliance government tabled it last year. Will the party back the government if it introduces the Bill again with changes?

The Congress party has made its stand very clear now. We will not support the government on this issue. Congress spokesman Randeep Surjewala has already issued a statement that is self-explanatory. Thus, I doubt very much if the government will even try and bring the Bill back.

But the Congress supported the Bill last year. What has changed now?

I fully agree with Surjewala’s statement that there is a lack of confidence in this government now. Look at the intemperate language used by senior Ministers, look at the environment of hate being created everywhere. Look at what is happening in Himachal Pradesh, Haryana, Punjab, Uttar Pradesh, everywhere. There is so much distrust, so much intolerance. How can the Congress party support it in this atmosphere of distrust? There was a clear indication that the government’s motive was to have a judiciary that would be under its control. Its intention of keeping institutions under its control has become obvious now. Look what they are doing to educational institutions, look how they are treating Governors. The level of distrust is so high that even senior Ministers are scared to speak to the media. Senior officials, too, are not accessible to the media. There is so much distrust everywhere.

But what is your objection now, after supporting the Bill in Parliament last year?

Our main objection is to the veto power, which was not there in the Bill that we supported. This will make the judiciary totally captive in the hands of the government. (The veto power provision means that if any two members objected to an appointment, then the matter ends there.) This was something very sinister, and we never supported this clause.

But by striking down the Act, the Supreme Court has brought back the collegium system, which is not perfect either. What is the way forward?

True, the collegium system is not only not perfect, it is grossly imperfect. Post-1993, ever since the collegium system came into being, we have had disconcerting instances. Going back to the same imperfect system certainly does not help. But I am sure the Supreme Court will further deliberate on the issue and bring about a system which is not only transparent, but less imperfect, too.

Did you expect such a severe judgment, especially since the Act had near total political unanimity? Were you surprised?

I was ambivalent. I have mixed feelings about the judgment. I wasn’t too happy with the Act to begin with, I wished the Supreme Court would make some changes, in the veto power provision, for example. That disturbed me. So emotionally, yes, I am in agreement with the judgment because the implicit message here is that the judiciary as an institution cannot be put in the not-so-safe hands of the government. I agree with the implicit message of trust deficit in this government. But, by way of jurisprudence, I am not in agreement with the judgment because by implication it means everything that happened before 1993 was wrong and that everything that happened after 1993, when the collegium system came into being, was right. But we have all come across disconcerting facts post-1993. The independence of the judiciary depends on many factors and not only on how judges are appointed.

As a former Law Minister, how would you have gone about this matter?

It is not a question of what I would have done. It is ultimately about people who run the system. No matter how great a system you have, if that system is run by people who have ulterior motives, who want to usurp power, who want to destroy the autonomy of institutions, then it does not work. It is ultimately about the people who are running the system having faith in democratic norms. As for me, I think the best course would be to let the Supreme Court take a view on it after consulting all the stakeholders. I am sure the Supreme Court will come up with a system is less imperfect.