It is a matter of deepest anguish, profound sorrow and utmost concern that none other than a very senior and one of the most eminent Supreme Court lawyer – Kapil Sibal himself who is also thrice former Supreme Court Bar Association President on three occasions i.e. 1995-1996, 1997-1998 and 2001-2002 and also the former Additional Solicitor General of India and also the former Union Law Minister of India who while expressing his deepest anguish at some recent judgments of the Apex Court minced just no words in laying bare what lay in his mind most frankly said that he has no hope left in the independence of the judiciary. This is definitely most anguishing! I cannot in my life think of a bigger legal giant that I have seen in my life time other than him even though I hold other senior lawyers like Fali Sam Nariman, Abhishek Manu Singhvi and others also in most highest esteem yet we all lamentably witnessed for ourselves how strong his emotions coming straight from his heart were unleashed recently in the full gaze of the people which we usually never see normally! I just can’t recollect in my life of seeing Kapil Sibal so much shocked ever till now right from my childhood days! In my life I have never cried so much in my heart to see something so much pessimistic being said about the highest court of India that is none other than the Supreme Court by none other than Kapil Sibal himself whom I adore since my childhood days and who is an authority in himself the way he has always conducted himself with sheer elegance! I am yearning for the day when that day will come when I will complete 50 years of age which will be in 2025. But Kapil Sibal is a lawyer who has already completed 50 years of successful practice as an Apex Court lawyer and I consider him an institution in himself in my personal capacity who was the one who in his capacity as Union Law Minister had very strongly recommended a High Court Bench to be created for West UP at Meerut and so whatever he says anytime cannot be ever taken lightly by not even the Apex Court itself! His son Akhil Sibal who is also a senior lawyer may distance himself from what his father said just recently about the opaque functioning of Supreme Court but I in my personal capacity will always accord the paramount importance to whatever he says because I know that whatever he says has to be accorded top importance as he cannot be ever taken for granted!
We all had seen for ourselves how just very recently none other than a very eminent and senior lawyer of Supreme Court Kapil Sibal was most forthright when he candidly said that he does not feel good criticizing the Court where he has practiced for 50 years. More to the point, Sibal then minced no words to say upfront that, “But the time has come to say this, if we don’t say who else will say.” Absolutely right!
Now even another senior and a very experienced Supreme Court lawyer who is also former President of Supreme Court Bar Association – Dushyant Dave has himself also expressed his serious concerns about the process of assigning cases to Benches of the Supreme Court by the Chief Justice of India as the “Master of Roster”. While speaking freely, firmly, fairly and frankly in an interview with Manu Sebastian who is the Managing Editor of LiveLaw, Dushyant Dave said most eloquently, elegantly and effectively that, “I feel that the Chief Justice as the Master of the Roster should have no power at all to assign any matter to any bench. The process must be completely automated and it should be so automatic and computerized that no human hand can really touch it. Yes, the Chief Justice can decide the constitution of the benches, the Chief Justice can decide allocation of subject matters to those benches, but once having done that, the computer must automatically function and go on sending the matters according to its own interpretation. A human intervention by the Registry or by the Chief Justice is extremely disturbing.”
Adding more to it, Dave also pointed out quite significantly that cases of a particular corporate house used to be allocated to one particular Bench. He very rightly asked that, “How else do you explain that nine judgments of one of the largest corporate houses were delivered by a Bench presided by Justice Arun Mishra? Despite my letter in 2019 June by which time four matters were sent, after which five more were also sent by Chief Justice Gogoi….what does this tell you? When Justice Gogoi’s book was launched, he welcomed the head of the corporate entity with his family at that book launch? What does this tell you? It is really disturbing to see that these kinds of incidents can take place and everybody in the Supreme Court wants to shut their eyes! What are the Judges doing? Supreme Court comprises of essentially good Judges! Why are the good Judges silent? Is the Supreme Court particular Bench meant for a corporate house? This thing is happening for a long, long time! I do remember long back when Kerala’s former Chief Minister was indicted or something – Justice Balakrishnan was the Chief Justice – in those days, the matter was assigned only to 1st five Benches on mentioning, and the matter was sent to court 9 or 10 and immediately an interim order was granted. This is happening time and again.”
Registry’s workings opaque; young lawyers suffering; judges should listen to grievances of the bar
While sharing his serious concerns on the opaque way of functioning of the Registry, Dushyant Dave said that, “There is a growing feeling among a lot of young lawyers that their matters do not get listed for months and months and matters of certain powerful advocates-on-record suddenly get listed, sometimes even though from the same judgment, the other advocate-on-record has filed a petition in the Supreme Court much earlier. All these things send an extremely wrong message. As the President of the Bar, I tried to talk with every Chief Justice and I must say that Chief Justice Thakur tried to protect the system quite remarkably and there was a lot of interaction. He even created a kind of judges and lawyers group for grievance redressal; unfortunately, the moment he stepped down, the next judge did not care for that grievance redressal mechanism. There must be a mechanism. Today, judges are absolute masters. The Bar has no way to tell the judges what is happening. The other day in a matter, while appearing before a particular Bench I won’t name, I told the judges, when they were a little upset at my outburst, I said you come and sit down on the side of the Bar and find out what is happening in the Registry. These young lawyers are actually suffering. The genuine litigants are actually suffering. The powerful litigants sometimes get the quicker slot and sometimes a favourable slot.”
No doubt, Supreme Court must give a cool and composed thought to what all Dushyant Dave has pointed out. These are all very serious issues and they cannot be just brushed aside! Kapil Sibal definitely means a lot when he expressed his fuming resentment about why he has no hope left in the Supreme Court even though he conceded that he does not feel good criticizing the court where he has practiced for 50 years!
Hope the Chief Justices will try to remedy the Registry’s situation
Frankly speaking, Dave then waxed eloquent noting that, “I had thought Chief Justice Ramana would try and correct the situation – I must say that at least on allocation, Justice Ramana has not been able to do much, although in many other areas, he has done some very good work, and he has definitely been a revelation after four successive Chief Justices failed the country and its citizens. But I do expect and hope and pray that Justices Lalit and Chandrachud and then Justice Khanna and the thereafter Chief Justices would act immediately to stop what is happening. You just can’t allow this kind of situation where corporate houses are just here to succeed in every case that they argue before the Supreme Court. Their success rate is over 90% which raises eyebrows It is not done. Why should it happen? You can’t talk many things in these kinds of interviews but privately there is so much to tell to the Chief Justices as to what is happening of which some of us are aware of. But we are not able to share and there is no way you can share with the judges. There must be some interaction where the judges must know what is happening and what their brother judges are doing and how they are damaging the institution and its reputation.
I must say one thing that the people at large are definitely talking about the failures of the Supreme Court in imparting justice in an impartial way. People are talking about selective benches being constituted for matters or selective matters being sent to certain benches; and even people who are unconnected with law, I have heard them talk about it and ask me questions across the country and I have to defend my institution so I don’t talk much. Because you love the institution which you were a part of over 40 years. Judges must give us an opportunity when we can have a heart-to-heart talk with them and tell them that the wrong has set into such an extent that unless they move in quickly, I don’t think we can ever correct the situation”.” Now Dave has been part of Supreme Court for over 40 years as he himself concedes and Kapil Sibal for over 50 years and if such experienced and eminent lawyers say something on such relevant an issue then they certainly cannot be brushed aside by just attributing motives on them! They must be certainly taken most seriously and what all they raise must be addressed at the earliest.
Hope the Chief Justice will try to remedy the Registry’s situation
On a positive note, Dushyant Dave then pointed out that, “I had thought Chief Justice Ramana would try and correct the situation- I must say that at least on allocation, Justice Ramana has not been able to do much, although in many other areas, he has done some very good work, and he has definitely been a revelation after four successive Chief Justices failed the country and its citizens. But I do expect and hope and pray that Justices Lalit and Chandrachud and then Justice Khanna and the thereafter Chief Justices would act immediately to stop what is happening. You just can’t allow this kind of situation where corporate houses are just here to succeed in every case that they argue before the Supreme Court. Their success rate is over 90% which raises eyebrows It is not done. Why should it happen? You can’t talk many things in these kinds of interviews but privately there is so much to tell to the Chief Justices as to what is happening of which some of us are aware of. But we are not able to share and there is no way you can share with the judges. There must be some interaction where the judges must know what is happening and what their brother judges are doing and how they are damaging the institution and its reputation.
I must say one thing that the people at large are definitely talking about the failures of the Supreme Court in imparting justice in an impartial way. People are talking about selective benches being constituted for matters or selective matters being sent to certain benches; and even people who are unconnected with law, I have heard them talk about it and ask me questions across the country and I have to defend my institution so I don’t talk much. Because you love the institution which you were a part of over 40 years. Judges must give us an opportunity when we can have a heart-to-heart talk with them. and tell them that the wrong has set into such an extent that unless they move in quickly, I don’t think we can ever correct the situation.”
While responding to a question if he had raised these issues before the Chief Justices during his two-terms as the President of the Supreme Court Bar Association, Dave said quite frankly that, “I must say I raised them with every Chief Justice who was there- there Chief Justice Thakur who responded very very positively whenever I pointed out any transgression. And I must say that even the Secretary General in his time or even the subsequently, when Chief Justice Bobde was there, although Chief Justice Bobde was quite disappointing. But the Secretary General…. Time and again, I would pick up the phone when a junior member of the bar would ring me up and complain about his matter not being listed, although urgent and filed long time ago, I would immediately give the number to them and they would ensure the matter was listed. So I used to do as much as I could. But there are limitations as President. As President, we don’t meet Chief Justice just like that but only on certain occasions. But Chief Justice Thakur had given virtual, open access to me absolutely. He said that if there is any matter of the bar that you wish to discuss, you are welcome to come and discuss with me. That is how I could get the bar room for the first time in 75 years. I could get a fantastic canteen for the bar. I could get a litigant lounge for the first time in the history of Supreme Court- nobody thought about litigants till I became president. We could have a larger ladies bathroom, we could complete the housing complex for the lawyers at greater Noida. In all that, chief Justice Thakur was constantly of help. Any kind of an issue one could discuss with him. Even with the bar, his grievance redressal committee, my colleagues- Vice President, Secretary and senior members, we used to go and have a fantastic dialogue with senior judges from J2 to J6 and have all kinds of discussion about various issues. There was no-holds-barred discussion. Registry’s top officials would be present and immediately they would be instructed to take corrective or reformative action. It was a fantastic time. But with Chief Justice Bobde, not once did he agree to meet even my committee. It was a very disappointing experience. I hope things change.”
If cases filed in High Courts can get listed the next day, why can’t it happen in the Supreme Court?
Furthermore, Dave also while speaking his mind said about even the judges having expressed its displeasure with the Registry for deleting cases from the list, Dave said quite rationally that, “Most of these judges have come from a High Court. Some of them are appointed directly from the bar. All of them are conscious of one fact- in every High Court in the country, if you file a matter, it will be listed in 2-3-4 days. In most High Courts, like Gujarat, the matter would be listed the next day with urgent listing. And most matters will definitely come up on the notice returnable date, unless process fee is not paid in a given case. But it never happens…the courts have complete control over their boards in the High Court. The Supreme Court is singularly a failure, and these very judges who have come from High Courts, many of them have been Chief Justices of High Courts, yet are either not willing to take corrective measures or are completely wanting to ignore them. They know the problem. The young and not-so-successful members of the bar face huge problems. See, they have one or two briefs in a month. They must have access to get their matters listed in a day or two or three. Not some powerful advocate-on-record who files 50 matters in a month. These young men and women really need the support of the institution, their clients need justice. What can they show to the briefing lawyers from the states? What can they tell them?”
It is shocking that the registry officials are completely oblivious to this pain being suffered by young members of the bar or the not-so-successful members of the bar . And they just don’t want to help them.
Most forthrightly, Dushyant Dave points out that, “No Chief Justice has wanted to help these people except Justice Thakur, as I told you, in my recent memory. Things were much different, for example, when Chief Justice Venkatachaliah was chief justice, you could stand before him and mention anything and he would immediately order…Even with chief Justice Ahmadi. I thought they were extremely responsive to the needs of litigants and to the needs of the bar. They were alive to their problems. Recently, in the last 10-15-20 years, I feel they are somehow just blind to this problem. People have such huge issues. Litigants need justice quickly. If you don’t give them justice, what happens?”
If the system can work in the High Court, why can it not work here?
Quite pragmatically, Dushyant Dave then elucidated stating that, “The master of the roster, the Chief Justice, was also the master in the High Court. But he does not interfere so much. Highly sensitive matters, he might assign to himself, but otherwise things happen normally. There is a roster, there is a subject matter and automatically, the Registry sends it. Just walk 2 km across the road to the Delhi High Court, and it never happens. Judges will have to seriously introspect on this issue. If they don’t introspect, the Supreme Court will come under more and more criticism which is not good for the institution. It is a great institution and it needs to face its problems and solve them so that the respect which it is entitled to command, respect which it did command really continues to be commanded in times to come.”
All said, one only fervently hopes that the Apex Court will take the views of senior lawyers like Dushyant Dave and Kapil Sibal in correct spirit and not otherwise. Kapil Sibal has more than five decades of experience in the top court itself and Dushyant Dave more than four decades and so they knows how things function in the top court. What all anomalies they point out must be taken most seriously and promptly set right without wasting any more time and all his constructive criticism must definitely be taken in the right spirit. Justice Anjana Prakash who is former Justice of Patna High Court recently very rightly observed that whatever be the state of affairs, it was our obligation to resort to the Supreme Court for justice and the Court does fulfill its duty in most of the cases. She stated that we do not live in a feudal setup and it was the taxpayers money that runs every institution and therefore, all the institutions are obligated to serve justice to the people. She concluded with the observation that it is not the Judges who are sacrosanct but very act of doing justice which is sacrosanct and therefore, it was under the obligation of the people to continue to demand justice. No denying it! Hope Apex Court listens and wastes no time in doing course correction!
Sanjeev Sirohi