Courts should ensure govt is accountable: Kapil Sibal on transparency in judiciary
New Delhi, June 27: It is the duty of the judiciary to protect the citizens of the country. The state is a powerful entity and when it troubles the citizens, it is the duty of the courts to step up, senior advocate and former union minister, Kapil Sibal said.
Speaking at an interactive session organised by advocate, J Ravindran, spoke about a variety of issues that included the changing nature of the judiciary, what independence of the judiciary means, what does institutional independence mean and why is there a perception that the judiciary is not perceived to be independent.
The judge is meant to resolve disputes. He has to create a balance between competing claims and concerns. The judge also needs to look at equity. Many times, we find that on issues the judge tends to overlook the law. Sometimes the judge is mechanical in the way the law is perceived. Then there is procedure that this requires fairness, Sibal also said.
Sibal also pointed that an essential part is the ability to listen. Judges tend to talk more at times. A good judge always listens, he also said.
The entire structure must be perceived to have institutional integrity. In trial courts there are a lot of misgivings that people have and several allegations have been made.
On the appointment of judges, Sibal says thee is too much executive interference. We see CJIs coming to the Supreme Court. When judges come they bring along with them their preferences and then lobby to bring their people in. They ensure that those people whom they are fond of are strategically appointed as judges at a point of time so that they become senior judges or even go on to become the Chief Justice of India, Sibal pointed out.
We have found frictions between the CJI and the first puny. The CJI has complete control and there is no transparency. Basically the collegium system has not worked and there is friction in the appointment process. This also happens in the High Courts and this is a matter of great concern for me, Sibal also said.
Sibal also spoke about the financial autonomy for the judiciary. Many a time we have found that the litigant public who are in need of instant judges do not get it, due to the lack of judges. There are plenty of vacancies in the High Courts and trial courts and this is a great disservice to the litigant public. If people do not have a recourse, then how will justice be served, Sibal asked.
Sibal said that the need for the judiciary to have financial autonomy was immense. If given, this would help build the judiciary at the entry level. However for the judiciary to have financial autonomy, a constitutional amendment would be needed, he also pointed out.
By and large, we believe that courts are manned by judges who have integrity. Sibal referred to a recent incident in which a former CJI sat on a Bench that was hearing allegations against himself. He gave a speech on the Bench and this has never happened before.
There was not enough courage within the legal fraternity to show that the cause of justice was derailed. That particular procedure in a sense had a huge impact on the minds of the public and they felt that this should not have been allowed. Further, the order was passed and it was not signed by the CJI. The other two judges on the Bench signed the order.
We had in fact moved an impeachment mouton, but it was blocked at the political level and the same was dismissed. Sibal further said.
Sibal said that it is important that the Bars stand united. The problem is that the Bar is divided on political lines. As lawyers, we should be concerned with the rule of law and nothing else. Democracy will be alive and thriving only if the Bar is active. In my opinion the Bar has completely failed, Sibal also said.
On the perception, why the judiciary is not independent, Sibal said that sometimes an important case is not listed. However sometimes matters that are not important are listed. Many judges who deliver scathing judgments are transferred. In Gujarat very recently when a scathing judgement was passed on COVID-19 management in the state, the case was taken away, Sibal said.
A judge from Uttarakhand who had delivered a scathing judgment on the imposition of President's Rule faced many problems before he made it to the Supreme Court. When a judge comes in late, he loses his seniority. This is when the fraternity perceives that this was done for ulterior reasons.
The courts should be sensitive to the problems. A challenge to demonstration is still pending and we know nothing about it. Even issues relating to the pandemic were not addressed. A law officer said that there are no migrants on the road and the same was accepted by the Supreme Court, Sibal said.
The court has to ask the Centre about its plan. There is no accountability of the government. The court needs to ask about the special provisions for widows and children in such times. We hear nothing about it, Sibal also said.