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 who while expressing his deepest anguish at some recent judgments of the Apex Court 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.
It is this same Kapil Sibal who as Union Law Minister had recommended most strongly and most laudably a High Court Bench in West UP at Meerut as was openly disclosed proudly by his former colleague and Union Minister in UPA regime – RPN Singh solely due to which I respect him the most in my life but again it didn’t fructify at all most unfortunately due to the strongest opposition that one witnessed from vested quarters but about which I will just not like to dwell right now as it will occupy huge space which is just not warranted right now! What is worse is that even the Supreme Court itself has never bothered to advise Centre to create a High Court Bench in West UP at Meerut as recommended most robustly, refreshingly and rationally by Kapil Sibal or at least in any other place in West UP but Centre is dead determined since 1947 till now in 2022 that even though UP tops among all states in the list of pending cases and still most stupidly, most shamelessly and most senselessly finds it best not to ever allow any High Court Bench in any nook and corner of not just West UP but in any nook and corner of UP as one Bench exists in Lucknow that is just about 200 km away from Allahabad created by Pandit Jawaharlal Nehru most proudly way back in 1948 on July 1.
Come to think of it, as if this was not enough, even Justice Jaswant Singh Commission set up pompously under the Chairmanship of Justice Jaswant Singh very strongly recommended three High Court Benches for undivided UP in mid seventies at Agra, Dehradun and Nainital but again most stupidly, most shamelessly and most senselessly, Centre decided most shockingly to only implement the recommendation to create a High Court Bench at Aurangabad in Maharashtra which already had two High Court Benches, at Jalpaiguri in West Bengal which already had Bench at Port Blair and at Madurai in Tamil Nadu and these were promptly created but not a single High Court Bench created in any nook and corner of UP due to which people of West UP had to travel about 800 km on an average all the way to Allahabad to get justice and people of hilly areas of undivided UP were expected to just keep quiet and travel thousands and thousands of kilometers all the way to Allahabad for more than 50 long years and yet Supreme Court not once ever spoke in favour of the “poorest of poor” litigants who were compelled to travel all the way so far like bonded labourers watching everything like a hopeless, helpless and hapless spectator and ultimately when people agitated then High Court itself was granted and it was created into a separate State! This has sent a clear message that as long as far flung areas like West UP with population of more than 10 crore and 30 districts, Bundelkhand and Purvanchal formed part of UP, Centre will not allow at any cost and under any circumstances even a Single High Court Bench anywhere in any nook and corner of UP and even holy cities like Ayodhya, Mathura in West UP, Kashi also called Varanasi and Gorakhpur where Lord Ram, Lord Krishna, Lord Shiv, Lord Gorakhnath are worshipped would be treated as “legally most worthless cities” but about which Centre never feels ashamed leave alone feeling terribly ashamed nor UP CM Yogi Adityanath who himself demanded High Court Bench in Gorakhpur in 1998 right inside Parliament and in 2015 also introduced a private member Bill for the same most vociferously and yet even after becoming UP CM for second time is totally helpless, hopeless and hapless as Centre is deadly against High Court Bench anywhere in any nook and corner of UP! When Supreme Court can take suo motu action in so many other cases then why it never acted on this key issue concerning the largest populated state of India? This is the key point!
Anyway, coming back to the main issue, it deserves mentioning here that Sibal was speaking his mind at a People’s Tribunal that was organized on the 6th of August, 2022 at New Delhi on the “Judicial Rollback of Civil Liberties” by the Campaign for Judicial Accountability and Reforms (CJAR), People’s Union for Civil Liberties (PUCL) and the National Alliance of People’s Movements (NAPM). It must be mentioned here that the key focus of the Tribunal was on the 2022 Supreme Court Judgments on the Gujarat riots (2002) and the Chhattisgarh massacre of adivasis (2009) when Supreme Court penalized the tribals by imposing an exemplary cost of Rs 5 lakhs on an inquiry made by police which was itself an accused in the case which shocked even former Delhi High Court Chief Justice AP Shah who questioned what sort of criminal justice this was! It merits mentioning that Sibal did not mince any words in unequivocally criticizing the Apex Court’s judgment dismissing the plea of Zakia Jafri challenging the SIT’s clean chit to state functionaries in Gujarat riots cases and also the verdict upholding the provisions of the Prevention of Money Laundering Act which gave enormous discretionary powers to the Enforcement Directorate. He had appeared for the petitioners in both the cases and did his best in arguing for them.
Kapil Sibal started his address by stating that after practicing for 50 years in the Supreme Court of India, he had no hope left in the institution. This has definitely shaken me also to the hilt as I consider him totally different from the rest of the crowd and who had the guts, gall and gumption to most vocally demand for a High Court Bench in Meerut in his official capacity as Union Law Minister so that the “poorest of poor” are not compelled to travel like a slave all the way to Allahabad as there is no Bench in West UP and the districts of West UP are not even attached with Lucknow famously called the “City of Nawabs” which has its own Bench for 12 districts even though it is so near to Allahabad! Nothing on earth can justify this worst stupidity when multiple High Court Benches can exist in so many other states! That is why Kapil Sibal recommended a High Court Bench at Meerut in West UP! Even the 230th report of Law Commission of India recommended High Court Benches for all the states and not just few states as most unfortunately we see right now. Yet Supreme Court never took suo motu notice and has left everything on Centre alone as we saw when women advocate KL Chitra filed PIL before former CJI Ranjan Gogoi in November 2018 when he was CJI and while conceding that the litigants of West UP suffer a lot due to High Court being so far preferred to play safe and held that it was for Centre to decide. No wonder, Centre has done nothing on this in last 75 years!
Coming to the moot point, Kapil Sibal also stated that even if a landmark judgment is passed, it hardly ever changes the ground reality. In this context, Sibal hastened to give an example of the judgment striking down Section 377 as unconstitutional. He stated that despite the judgment being passed, the ground reality remained the same. While addressing the gathering, senior advocate Kapil Sibal minced no words to state in simple, suave and straightforward language that, “Independence is only possible when we stand up for our own rights and demand that independence.” We all know fully well now how Kapil Sibal stood for High Court Bench in West UP at Meerut when he recommended the same as Union Law Minister as he was shocked that when there can be a Bench so close to Allahabad at Lucknow then why can’t there be a Bench in Meerut in West UP! All kudos to him for this even though the Bench could not be created ultimately!
While shedding light on the Gujarat riot case, Kapil Sibal who had represented Zakia Jafri who is the widow of Gujarat’s Congress MP Ehsan Jafri who was killed in ghastly manner in the Gujarat riots stated that while arguing in the Court, he had only placed on record government documents and official records and no private documents. He pointed out that during the riots, many houses were burnt as we know also very well. Quite palpably, in such cases the intelligence agency would call the Fire Brigade to extinguish such fire.
But as per Kapil Sibal, the most damning part is that the documentation or correspondence of the intelligence agency showed that no Fire Brigade picked up the call. He stated that it was argued that the SIT appointed by Supreme Court did not properly inquire why the fire brigades did not pick up calls and the same meant that SIT did not do its work properly. Sibal lamented that despite these submissions the Supreme Court did not do anything which definitely is most baffling!
Furthermore, Sibal said that the SIT had exculpated several persons solely relying on the statements given by those who were facing the accusations themselves. Regrettably, Sibal pointed out that though these aspects were pointed out to the Supreme Court, nothing was done. He also waxed eloquent noting that even a student of law would know that an accused cannot be let off only on the basis of his statement.
In addition, it deserves mentioning that as regards Teesta Setalvad who was arrested after the dismissal of Zakia Zafri’s case, Sibal said that no argument was presented before the Court with respect to her and yet the Court made adverse remarks against her which led to her arrest. He said that politically sensitive cases are assigned to certain judges and the verdict can be predicted by everyone beforehand. This is a very serious charge and is made by none other than one of the most senior, eminent and brilliant lawyer of India!
While talking in depth about the independence of judiciary, Sibal stated that, “A court where Judges are instituted through a process of compromise; a court where there is no system to determine which case will be presided over by which Bench, where the Chief Justice of India decides which matter will be dealt with by which Bench and when that Court can never be independent.
It is worth noting that Sibal pointed out while addressing the recent PMLA judgment passed by the Supreme Court in the leading case of Vijay Madanlal Choudhary vs Union of India that the Enforcement Directorate had become extremely dangerous and that it had “crossed the lines of individual liberty”. It is also noteworthy that while criticizing the approach of the Apex Court in this leading judgment, Sibal stated that the Judge presiding over the case had stated that the PMLA was not a penal statute, despite the definition of “proceeds of crime” under PMLA including the word crime, which was penal in nature. He questioned the logic of the Apex Court’s conclusion that ED officers are no police officers and this even I find myself strange!
Kapil Sibal was most candid and forthright in asking that, “How can you keep trust in the Supreme Court when it upholds such laws?” In addition, I would further ask that, “How can you keep trust in the Supreme Court when it refuses to do anything on the 75-year-old pending High Court Bench issue in West UP due to which the poor litigants have to suffer a lot due to no Bench being created here and travel whole night and half day all the way to Allahabad to get justice even though Justice Jaswant Singh Commission had also recommended for the same?
What’s more, Kapil Sibal also spoke about Section 120B of the IPC and its shortcomings. He stated clearly that whenever someone wants to trap an innocent person, a case is made against him under Section 120B (for conspiracy). He also lamented that no bail is granted to such accused persons until they prove their innocence. This is what I also find most troubling. He stated that if such a law has been upheld by the Supreme Court, nothing could be expected from such a court. He further deplored stating most upfront that, “You cannot have confidence in a system where laws of such nature are being upheld. (Siddique) Kappan, what is against him? He has been inside prison since 2020 and since he has been accused under Section 120B, he will not be granted bail…In this country, you are arrested first over frivolous FIRs and then the investigation starts. This is a colonial practice. Law should be such that the investigation takes place before arrest. No point of such law till the criminal law is changed…I do not want to talk like this about a Court where I have practiced for 50 years but the time has come. If we don’t do it who will? The reality is such that any sensitive matter which we know has a problem is placed before handful of Judges. If you think you will get relief from Supreme Court you are hugely mistaken.”
No doubt, 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!
All told, one only fervently hopes that the Apex Court will take the views of Kapil Sibal in correct spirit and not otherwise. He has more than five decades of experience in the top court itself and so he knows how things function in the top court. What all anomalies he has pointed out must be 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 while speaking for the entire panel 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!