Kapil Sibal interview: ‘Kiren Rijiju’s remarks on judges and Supreme Court are disturbing, entirely inappropriate’

How do you view Law Minister Kiren Rijiju and Vice President Jagdeep Dhankhar’s statements on the National Judicial Appointments Commission (NJAC) issue? Is the government preparing the ground to bring back the NJAC, which was struck down by the Supreme Court in 2015?

I don’t know. I can’t speculate whether this comment means that the government is preparing for an NJAC in another avatar. But the statements made by the Law Minister are disturbing, because they relate to the way the court should function, which I think is entirely inappropriate. He suggested that judges have too many vacations. That too is inappropriate.

I wish to clarify a few facts. The Law Minister not being a practising lawyer is probably unaware of the functioning of courts, especially the Supreme Court.

A Supreme Court judge normally sits in court at 10.30 am and doesn’t move from his chair till 1 pm. Occasionally he works through till 1.30 pm, then returns to court at 2 pm and doesn’t move from his chair till 4 pm. So he is sitting in a single chair in that posture for hours on end. He or she then goes back home and in the course of the evening has to read, on an average 60 to 70 files that I imagine takes another 5-6 hours. So a Supreme Court judge sits for 10 hours in the same posture, day after day, year after year. Apart from reading briefs for the following day, the judge has to look at orders he has passed, clear those, prepare drafts of judgments to be rendered on matters already heard in court. So, for the balance time of the evening, I guess about 2-3 hours, the judge will probably be dictating judgments. This carries through the weekend. This, apart from having to deal with administrative matters. So it is a seven-day job with no time to rest. I wonder whether the Law Minister follows such an intellectually stressful routine. I imagine not!

Besides, a judge having heard several cases during the course of a session of the court before vacations, has judgments to draft and circulate for pronouncement as soon as the court reopens. Perhaps the minister does not know that these are working vacations, when the judge also thinks and reflects on matters he is to deal with when court reopens. Most of the judges’ vacation will be spent doing that. I say all this to show that the Law Minister doesn’t have any idea about the workload and pressures judges undergo…and this also impacts their health.

So, judges sacrifice their personal health to do the job that they are constitutionally committed to do. I think that’s a great sacrifice. I think that any minister who comments on the way the court functions is to say the least insensitive and has no idea on what judges have to go through while discharging their constitutional responsibilities. They follow this routine in the Supreme Court after they go through an equally gruelling routine in the High Court they have served in. There may be some judges who may not be doing that but in my 50 years in the Supreme Court I have hardly seen judges who have not followed this routine.

What is your view on Law Minister’s statement that the Supreme Court should not be hearing bail applications and frivolous PILs?

Article 21 is a fundamental right. No person shall be deprived of his life and liberty except in accordance with the procedure established by law. So if a matter comes to court which impacts the fundamental rights of a citizen…. The Law Minister, who has taken an oath on the Constitution, should not be talking about the court not hearing bail matters, because they impact liberty and freedom of citizens. It may not be of any relevance to the minister, because the cause of liberty is not something this government can be proud of. This statement of the Law Minister only shows that he is least concerned about people’s liberties. A court that is obliged to protect people’s liberties is doing its constitutional duty by hearing bail applications. Does the minister suggest that there should be no appeal in the Supreme Court? Is that what the minister means?

On PILs I can say — because I have been watching very carefully — a lot of the PILs are filed by people…by individuals..by lawyers who are committed to the ideology of the BJP, and if not committed, at least inclined towards that ideology. Often, law officers most willingly support the cause. A lot of these have a political slant, in alignment with the government’s thinking. Besides, the institution of a Public Interest Litigation is a court-established procedure, right from the days of Justice Bhagwati. It has stood the test of time. A lot of landmark judgments have been rendered by the court in respect of the indigent or the marginalised, in respect of bonded labour, in respect of many other issues…rights of women…challenged people… people whose voice otherwise would not have been heard by the court. Again, the minister is probably unaware of its history and significance.

Why do you think the government is targeting the higher judiciary now?

Why this is happening is clear. Because the last citadel of freedom is sought to be captured. They have captured everything else. This is the only one left.

The NJAC had unanimous support last time. Has the situation changed now?

Yes. I think the situation has changed radically. I think recent events…the manner in which judges have been appointed to the Supreme Court… suggests the overbearing attitude of the government. It also suggests that when they are disinclined towards a particular judge, who has rendered a judgment they perceive to have been against the government, they make sure that the judge is not elevated to the Supreme Court. They keep recommendations of the Collegium with them for long periods, which has also been commented upon by sitting judges of the court recently.

The government does not even clear names of those recommended for elevation or appointment even after the file was returned by the Collegium reiterating the recommendations.

All this doesn’t mean that the Collegium system is great. I have a lot of concerns about the Collegium system myself but I am far more concerned about the forays by this government to interfere with processes of the court than with the problems that need to be ironed out as far as the Collegium system is concerned.

So should all the Opposition parties think twice before supporting the NJAC again?

Absolutely. Now that I am an independent member of Parliament, I would certainly persuade my colleagues in the Opposition to take up a position which is against any attempt through NJAC to influence the court and make the government the final arbiter of appointments to the Supreme Court and to the high courts.

You said the Collegium system is not great either. What is the way out?

The way out is to have a system that is more transparent. Of course, it is for the court to handle. There are some endemic problems in the processes of the Collegium which need to be addressed. I am sure the court realises that and I think one of the Chief Justices who just retired publicly stated that some issues need to be addressed. That however doesn’t mean that the final arbiter should be the government in the matter of appointments to the High Court or the Supreme Court.

Should the Opposition parties demand a discussion in Parliament on the conflict between government and the higher judiciary?

I don’t think so. Institutional wisdom should prevail. The government should not be through the Law Minister making such statements. That does not augur well for the future. There can be a difference of opinion but to make comments like this on the functioning of the Supreme Court is unacceptable.

Remember the government has often said that the court occasionally breaches the Lakshman Rekha and deals with matters which are not within its jurisdiction. The Law Minister should think about that….what he is doing is exactly what he blames the court for..what the government has in the past blamed the court for. He is also breaching the Laskhman Rekha by commenting upon issues that are not within the domain of the government.

How do you see the delay in hearing on cases of public importance? Issues like abrogation of Article 370, CAA are pending. The court is now hearing demonetisation which happened 6 years ago?

I tell you what has happened…but for the fact that the previous Chief Justice put these matters before Constitution Benches, these would never have been heard. So kudos to him. And kudos to the present Chief Justice for fixing matters for hearing. My concern is a little different. Many of the matters that are being heard have lost their relevance. Take for example demonetisation. It should have been heard at a time when it was relevant. Live constitutional matters should be given priority. Matters which impact the polity today should be given priority. Like hate speech, the manner in which elected governments are toppled. These are live matters. The perception is that matters which are live are not before the court, before Constitution benches… and matters which have lost their relevance are being heard. For example, electoral bonds, though this is a live matter even today. For years these electoral bonds have been issued and allowed to be issued. This should have been heard much earlier. Priority should be given to live issues which impact the future of our polity… so there are issues with the court as well which need to be resolved by the court. We have wise judges sitting there…I am sure they will resolve them.