Thread by @barandbench

Senior Advocate and Former Union Minister Kapil Sibal to speak about "Independence of Judiciary" in an online seminar hosted by Advocate J Ravindran.

@KapilSibal

Sibal: Through the years the way the judiciary functions has changed. Now the independence of judiciary is a matter of concern for the public at large.

Sibal first talks about Independence qua a Judge, an individual.

Sibal: A Judge needs to look at balancing claims and equity and rule accordingly. Our expectation when we go to a Judge is that he needs to have that balance.

Sibal: There is also the issue of procedure. The procedure requires fairness and what fairness means is that the Judge must listen to both sides intently and both sides must be given the opportunity so that there is no procedural unfairness.

Sibal: Another important attribute of an independent and fair Judge is the ability to listen.

@KapilSibal

Sibal now touches upon the aspect of Institutional Independence and integrity.

Sibal: The entire Judicial structure must be perceived to have institutional integrity.

Sibal: At the level of trial Courts, there are many misgivings that the public has on the manner in which the cases are decided.

Many times we find that we don't have the level of confidence in the manner in which cases are decided as we should have.

Sibal: Another aspect is regarding the manner in which the Judges are appointed.

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.

Sibal: The process of selection of Judges is a closed-door proceeding over which the CJI has complete control. So this procedure of collegium of 1+4 causes friction.

Sibal: There needs to be financial autonomy for Judges so that we know that the cause of justice is served with integrity.

Sibal: (On individual integrity) We find that the Judges who man the Courts have integrity but occasionally there are instances of senior members on the Bench whose conduct is not as expected.

Sibal speaks about the instance of former CJI, Justice Ranjan Gogoi, sitting in Court on a Saturday to hear a case concerning the allegation of sexual harassment levelled against him.

Sibal says that this was a matter that concerned a lot of people but there was also silence.

Sibal now refers to the motion of impeachment moved in the Rajya Sabha against Gogoi's predecessor, the then 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."

Sibal: Democracy will be thriving if the Bar works only according to the rule of law... here our Bar is divided on political lines. I think the Bar has completely failed in being an active force in ensuring that the independence and integrity of the institution is maintained.

Sibal touches upon the issue of CJI being the master of the roster, says that often it is found that matters concerning some specific parties are placed before specific Bench, this is a matter of great concern.

"This are administrative decisions and we cannot challenge them"

Sibal: Perhaps in January 2018 the four Judges held a press conference and made the statement that 'Democracy was in danger' because their conscience called for them to do so.

On the perception of Judiciary not being independent:

Sibal: This is a perception, but why is this perception there? We know for a fact that some Judges who were about to deliver seminal judgments were transferred.

Sibal refers to the recent instance from Gujarat HC where the Bench that delivered a scathing order against the government in relation to the COVID-19 pandemic was changed.

Sibal also cites the example of overnight transfer of Justice Muralidhar from Delhi HC to Punjab & Haryana HC.

"Even though he had agreed to the transfer, he was transferred overnight"

Sibal: I'm just giving these examples to explain why the perception is there.

Sibal continues to cite examples of delay caused in hearing Habeas Corpus petitions as has happened in recent times.

Sibal: There have been instances, and I was party to these matters, where Law officer did not even provide proper orders passed under Section 144 of CrPC before the Court in relation to lockdown imposed in #Kashmir and the Court did not ask for it.

Sibal: Then we see important cases are not being heard for a long time... these are the reasons the perception is there.

Sibal refers to examples of persons charged under UAPA, #Covid_19 concerns not addressed by Courts in bail cases, example of statements made by law officers on #MigrantWorkers accepted by Courts without any question, govt not asked of National Plan under Disaster Management Act

Sibal: 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

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

Sibal concludes his talk.

During the Q&A session, Sibal says that we are slowly moving towards an autocratic authoritarian regime without it being so declared and the Judiciary will take a long time to overcome the issue.

On the question of Court of Appeals and Supreme Court:

Sibal: I believe the Court of appeals can be a final Court for deciding facts, not a Constitutional Courts. Constitutional issues can be decided by All Supreme Court Judges sitting together as an institution...

Sibal: ...As of now, there are many Supreme Courts sitting given that Benches of different strengths sit and sometimes even deliver judgments contrary to each other. If all SC judges sit together, there will be no question of master of roster.

On post-retirement appointments and a cooling-off period, Sibal says there must be a minimum period of three years' cooling-off period for taking up post-retirement assignments.

On judiciary affected by public perception:

Sibal says that Judiciary often is guided by public perception rather than evidence...

Sibal: ...take UAPA for example, journalists, students, political activists, Dalit rights activists are charged under UAPA and the State tells the Courts that there is an attempt to destabilize the country and Court does nothing....

Sibal: ... If govt thinks an individual can affect its stability it says more about the lack of trust the govt has in its own stability.

On media:

Sibal: There is mainstream media and there is social media. When it comes to mainstream media, there has to be a difference between news and views. Job of the media is to show news, not generate news and Article 19(1)(a) has been misinterpreted....

Sibal: ... The issue with social media is far worse as there is no regulation of the same and these are the issues Court needs to address.

Discussion concludes.

Courts not hearing important matters in a timely manner adds to the public perception on independence the Judiciary, Kapil Sibal
@KapilSibal
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