Kapil Sibal: ‘We have judges who after retirement say they were part of RSS and want to go back to it’

The senior lawyer and veteran politician expresses deep concerns over the potential erosion of judicial independence and integrity.

Kapil Sibal at his residence in New Delhi on May 23. | Photo Credit: SHASHI SHEKHAR KASHYAP

Senior advocate and Cabinet Minister under Prime Minister Manmohan Singh, Kapil Sibal, won the election to become the Supreme Court Bar Association (SCBA) president securing 1,066 votes, making it the fourth time the veteran will occupy the post. Just a few hours before he was elected, another senior advocate had taken to social media site X to say, “Looks like the SCBA will have a president with the necessary gravitas.” Congress leader Jairam Ramesh, Sibal’s former party colleague, tweeted that it was a victory for secular, democratic, progressive forces, both giving us an indication that the association was not immune to the charms that powers can wield.

In a conversation with Frontline, Sibal not only explains what has changed since the 1990s when he was the president of the SCBA but also shares his concern about people’s gradual loss of faith in the judiciary and in other public institutions. Excerpts:

Congratulations! Why did you jump into the fray after more than two decades?

There was no need for me to stand for this position after 23-odd years. The third time I was the president was in 2001. This time, I felt that there needed to be some course correction. Then of course, this decision was made at the last minute because senior members of the bar were trying to persuade me for the last three years. I was hesitant. I was more or less gheraoed and served an ultimatum to contest. There were just four days left for the polls. I am grateful to the bar for reposing their trust, confidence, and affection in me.

What has changed in the intervening years?

Everything has changed. When I was elected for the first time in 1995, Narasimha Rao was the Prime Minister, the nature of the court has changed; there are many more judges and many more youngsters now. The political landscape has changed. We have a government that is muscular in every sense. Now we have judges who after retirement say that they were part of the RSS and want to go back to the RSS. We have another judge who has been in constant touch with the RSS while he was a judge and passed some orders. He ultimately resigned and is a candidate in West Bengal.

Surely, this is nothing new. There have been judges who have expressed their allegiance to the Congress party and who have joined the party too. So, why pick on them now?

There are two issues here. Number one, if there had been judges who have expressed their allegiance to the Congress and their judgment was reflected in the party’s favour, that is equally bad. That doesn’t mean this should be condoned. I have not seen such blatant candour with which even judges wear the badge of the RSS on their sleeve. That kind of thing never happened in the past.

Should there be a cooling off period for judges too?

Yes, absolutely. The judiciary has to take a call together.

When Justice Chandrachud congratulated you on your win, you assured him that the Bar will always support the judiciary. Yet, you had written in a column some time back where you said the Supreme Court is going to watch over the slow eclipse of an inclusive India. What exactly did you mean by that?

I meant the politics as it prevails now. The court is not responsible for the eclipse. In fact, it is the government. It is the BJP that is responsible and the court must do everything to stem the tide. We wish they do. The Bar will fight for it. If the judgments are such that they will ultimately lead to the demise of an inclusive India then history will judge them.

Do you see that happening?

While there are a lot of things happening in the court to push that back, there are also a lot of concerns.

Does the Bar have the courage to criticise the judiciary when required?

It is not a question of the Bar criticising the judiciary. We don’t criticise the judiciary. As an institution, we stand by it. We criticise some judgments; but not enough of that is being done by the Bar.

Like?

The Bar has not stood up at times for issues that have scandalised the court. I don’t wish to take names but some things have happened which have put this institution and some judges in bad light. I am afraid the accountability which was required from the institution was not forthcoming. Also, the Bar was not standing up together.

So, why is it so difficult for brother judges to speak up?

It is very difficult to make a public statement on issues concerning an individual who has transgressed his judicial responsibility by making his office political. What the judges should do is to see that this kind of infiltration into the judiciary should not happen. The process of appointment must not only be transparent but made more exacting.

The present system of appointing has failed us as well as the earlier system. I was responsible along with my colleague Fali Nariman—for making a case for taking the power away from the executive and having it reside in the Supreme Court through the Collegium system. I regret that it has failed. But between the two evils, this one is tolerable. We need to go back to the drawing board to see what best we can do to ensure that the system does not cater to these kinds of judges. I think the UK example—tailored to suit our needs—is preferable to the US example, which is totally political. The present system, and I could be dead wrong, involves some element of quid pro quo.

Has the judiciary lost its glory?

I personally think that the public at large is not as confident as it was in the years when I started practice and till as late as 2014. If you remember, the judgments rendered by the Court when the UPA was in power were scathing. You had judges who were unafraid to give judgments. They were certainly not aligned to a political party. There may have been a few.

All that has changed since 2014. The Bar can only raise its voice and ask for better transparency in appointments. The other problem that is even more serious is judges are appointed as Chief Justices to various High Courts, who then are also masters of the roster. That has its own problem and four renowned Supreme Court judges even went public with their anguish.

The Bar has to also collaborate with the institution to devise a system. In the Supreme Court, this is tough because the cases that come here are exceptionally sensitive. If the CJI [Chief Justice of India] doesn’t have control over it, there could be a problem. I think all CJIs want to control the roster, the Bar in the country has to work in a way that their discretion does not raise any questions. There are concerns that only the Chief Justice can address. We are all aware and the CJI is also aware. It’s not as if judges are not aware. Senior members of the Bar have written about it.

The judges have to do something about it. Ultimately it is the credibility of the institution that matters. All public institutions have been captured. Let’s not even talk about the Election Commission. If the commission says I will not upload the votes polled, it is unacceptable. I hope political leaders raise their voice.

How did Dil Se [Sibal’s YouTube channel] start? Was it a whim?

No. I felt that mainstream media was not bringing real issues to the public. The information that should reach the public was being kept at bay. I choose the topics. You have to be civil and persuade people to answer your questions. If they don’t, you let them be. Basically, I am eliciting information and sharing it with the public.

There have been concerns about the crumbling of the pillars of Indian democracy.

The lack of confidence in the judicial system is a concern. The overloading of the system for reasons the judiciary cannot be blamed for. There are not enough judges. But at least the judiciary is standing up to some extent. Of the other pillars of the Constitution, the executive is actually destroying or attempting to destroy the federal nature of our country by the misuse of investigating agencies, specially, the Enforcement Directorate under the PMO.

The executive is also bulldozing conventional parliamentary mechanisms. Because the BJP has an absolute majority, the executive does what it likes. There is an element of absolutism. Our model is absolutist... inconsistent with democratic principles. Then, there is the non-state pillar which is the media—completely controlled by the government through the corporate-politician network. The last citadel is yet to fall.

So, what is going to happen on June 4?

The BJP will fall well short of a majority if my analysis on the ground is correct. An element of fatigue has also set in. Also, the kinds of things the Prime Minister is saying. Institutions are not prepared to bring him to account. For the Election Commission to send a communication, not even a notice asking parties to advise their star candidate to not indulge in hate speech or raise an alarm over the Constitution, is unbelievable. It shows you the extent to which the rot has set in.

Anuradha Raman is a Delhi-based independent journalist who has been tracking the media for 25 years.