Govt wants to capture last citadel of freedom — judiciary; ‘deliberate design’ to be critical of Collegium: Kapil Sibal

PTI, Jan 15, 2023, 4:17 PM IST

Rajya Sabha MP and former law minister Kapil Sibal on Sunday accused the government of attempting to ”capture” the judiciary and said it was trying its best to create a situation in which the NJAC in ”another avatar” may be tested in the Supreme Court once again.

Sibal, 74, asserted the basic structure doctrine as enunciated in the Kesavananda Bharati verdict was very important in current times and dared the government to openly say if that is flawed.

He claimed the government has not adjusted to the fact that it does not have the final word on appointments in higher judiciary and resents it.

”They are trying their best to create a situation in which the National Judicial Appointments Commission (NJAC) in yet another avatar may be tested in the Supreme Court once again,” Sibal told PTI in an interview.

His remarks come days after Vice President Jagdeep Dhankhar, who is also the Rajya Sabha chairman, again criticised the scrapping of the NJAC Act by the apex court. Dhankhar had also questioned the landmark 1973 Kesavananda Bharati case verdict, saying it set a wrong precedent and that he disagrees with the Supreme Court ruling that Parliament can amend the Constitution but not its basic structure.

The NJAC Act, which sought to overturn the collegium system of appointing Supreme Court and high court judges, was struck down by the top court in 2015 which described it as unconstitutional.

Asked about Dhankhar’s remarks, Sibal said, ”When a high constitutional authority and a man who is well versed in the law makes a comment of this nature one has to first ask the question – is he speaking in his personal capacity or for the government.” ”So, I don’t know in what capacity he is speaking…. The government has to confirm that. If the government publicly states that they agree with his views then it has a different connotation,” the senior Supreme Court advocate said.

Asked about the Rajya Sabha Chairman’s remarks on the Kesavananda Bharati case verdict, Sibal said if it is his personal opinion, he is entitled to it.

Sibal, however, came down heavily on Law Minister Kiren Rijiju for his critical comments against the judiciary and the collegium system, saying that it was ”unfortunate” and a ”matter of grave concern”. ”I have said before that the Law minister is perhaps not well versed with the functioning of courts, nor is he familiar with court procedures. He is perhaps making such comments based on perceptions and incomplete facts. He apparently has not been properly briefed,” Sibal said.

”But whatever it is, it is inappropriate to make such statements publicly,” the former Congress leader said, hitting out at Rijiju.

Sibal alleged the objective of the government is quite clear and they want to ”capture” the right to appoint judges to the higher judiciary and want their word to be final in this regard.

”If they manage to do that, that would not bode well for democracy. As it is, all institutions have been captured by them. The judiciary is the last citadel of freedom. If the final word on the appointment of judges to the higher judiciary is left to the government, they will fill these institutions with individuals whose ideology is aligned to that of the political party in power,” he alleged.

”As it is, we are finding it difficult to match the juggernaut of this government which has taken over all institutions. We feel that these institutions act on the directions of the government or that they wish to please the government for reasons that are best known to them,” he said.

Sibal said the country is in ”great difficulty” in view of the Chinese ”intruding into our territory both in Ladakh as well as in Arunachal Pradesh”, the impending global recession; historic balance of trade in favour of China; absence of buoyancy in private investments; and household saving rates at a ”historic low”. Instead of concentrating on real issues relating to our people, including on environment, education and healthcare, the government, by not taking action, is encouraging divisive forces that will ruin our social fabric.

In times like these an assault on the higher judiciary is ”untimely and ill advised”, Sibal asserted.

”There is a deliberate design without any doubt to be critical of the Collegium system. Government does not like that appointments to the higher judiciary are in the hands of the Supreme Court collegium,” he said.

Sibal also asserted that the Constitution is supreme as the power of judicial review resides with the court.

”I dare say that the government does not have the courage at this point in time to say that the basic structure theory is flawed,” Sibal said while stressing that the theory was crucial for the present times. In fact, the basic structure of the Constitution needs to be strengthened, he added.

”I think in times like these we realize how the basic structure theory is important and how right Kesavananda Bharati (verdict) was to enunciate those features of the Constitution which are basic to our lives – right to free speech, right to life and liberty, the federal structure, the inclusive nature of our polity, the separation of powers and judicial review,” he said.

Sibal said that though he was critical of the collegium system, at this juncture of our polity, appointments to the higher judiciary cannot be handed over to the government. Sibal’s remarks come in the backdrop of a raging debate on the issue of appointments to the higher judiciary with the government questioning the current Collegium system and the Supreme Court defending it.