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“Judiciary? BJP just wants to saffronise everything!”

“I am very disturbed at the constitution of the benches. That is also a matter that four distinguished judges court have alluded to”


Congressman, Rajya Sabha MP and senior Supreme Court lawyer Kapil Sibal do not hold back from saying things as they are, and with an added punch for good effect. Speaking to Parliamentarian on a Saturday afternoon, Sibal was in a thoughtful mode and looked at the judiciary qua judiciary and the BJP politics qua saffronisation. The only faith he had was that the judiciary was standing its ground Excerpts from an interview:

At this point, there are two issues. I know you would not want to talk about the press conference (by the four top judges). all that is over now. What I want to ask you is: is the judiciary under the political shadow of some sort at the present moment? Would you want to comment?

I do not think I have to say anything other than the fact that the judges themselves have expressed concern. It is an extraordinary step that four distinguished judges took. But I am very much disturbed at the constitution of benches in the Supreme Court. That is a matter that the four distinguished judges have also alluded to. The taking up of very serious matters and the timing of taking up those matters are of concern to members of the legal fraternity. But I wouldn’t go to the extent of saying that they are influenced by A, B or C.

When you mentioned at an earlier point of time in the court that perhaps the Ayodhya case should be deferred, it did raise a lot of flutter across the media and even in the political circles.

I merely mentioned the fact that this matter was mentioned in a statement of that nature. Now you know the Rathyatra has started. I also said that it is part of the manifesto of the BJP that they will build the temple in 2018, implications are known to the court There is nothing wrong with that. I am not attributing anything to the court. I am attributing something to those who are in power and to the political party backing them, wishing that they deliver the Ram temple to their vote bank. There is nothing wrong in delivering anything. There is a political motivation. But no one can deny the political motivation.

This is the kind of overlap in the political context and the judicial cases. The Ayodhya case is one example. That of Judge Bh Loya is another…

The court did not lodge an FIR (in the Loya case). The court did not investigate the matter. Then Public Interest Litigations (PIL) are filed. Some of them may be very suspect. They have been transferred to the Supreme Court. The case is being heard through a PIL.I do not want to comment on what is happening in the court.

This is hardly the way of investigating whether a particular judge died a natural death or not. Public interest litigation cannot lead to any conclusion. What is required is an investigation and by an independent authority.That is why, members of 15 political parties signed a statement saying that we want an independent SIT, just as in the 2G case, officers who are independent, who do not belong to the NIA or the CBI, and are monitored by the court. What is wrong with that?

Apart from that, if you look at the background, almost 30 to 35 witnesses have turned hostile. Even witnesses who gave (Section) 164 statements have (done so). A retired judge of the Bombay high court, Justice Thipsay made an elaborate statement because he clearly dealt with the matter. He himself says that there is a lot of suspicions. If members of the judiciary are saying it, if members of the family are saying it, if we are saying it, there is nothing political about it. We are protecting the rule of law. We are trying to uphold the rule of law.

When the UPA was in power, you had introduced the National Judicial Appointments Commission (NJaC) in the Rajya sabha and while doing so you had talked of the Kapil principle of separation of powers. This government has pushed a modified  NJaC bill and got it passed. But it had lost the case in the Supreme Court. is it a very big setback and is that what is making the relationship between the government and the court adversarial?

I think there also there are concerns within the judiciary. Members of the judiciary have made the position clear. They have asserted the independence of the judiciary. There is no going back. An attempt was sought to reopen that issue. And the Judiciary is very concerned about it. That also has nothing to do with any political party. We want to make sure that judiciary’s position as reflected in the judgment is left intact, and that there should be no compromise. The political system should not push people of its choice. The fact that they have objected to (K.M.) Joseph, saying that he is not the senior-most shows the bias and the prejudice of this government because they themselves have discarded the concept of seniority when bringing judges to the Supreme Court and this is the reason they use to block Joseph. It is an absolute shame. Just because the judge has discharged the judicial function independently and that is not looked upon with grace and with acceptance. The judge is being targeted and not being allowed to come to the Supreme Court, especially when the collegium has recommended him. He is one of the most outstanding judges.

Do you see this as a clear bent of mind of this government, that the BJP wants to influence, mould and shape the judiciary of the future?

Forget the judiciary. They want to shape the future of this country through saffronisation. They want everything to be saffron from the secretariat to the buses in Uttar Pradesh to the educational institutions, to the post of governors, to the election commission.But judiciary so far has stood its ground and we admire it for it.

Do you see the judiciary standing its ground and it will outlast the pressure?

I have great faith in some of our senior-most judges. I am sure they will resist pressure and we will stand by them.

Are there any stress points within the judiciary which would allow the political establishment to sort of push its way?

There are stress points… human beings are human beings. As an institution, the judiciary can withstand pressure. Governors are appointed directly (and) they will choose saffron colours. This is true of the election commission, true of directors of IIT. This is true of vice-chancellors. This is true of other institutions. Prasar Bharati is resisting but that is because of one individual. In other cases, they (the government) certainly can bulldoze them. When it comes to the judiciary, there is a difference because you can appoint one governor for a state but you have lots of judges to appoint. Not everybody is saffron.

It is not ironical as much as opportunism. BJP has been vocal in its criticism of the Congress governments for influencing the judiciary. Now, they are they doing the same.

A lot of appointments were made by us. See the judgments. They went against us. The 2G judgment…

That is a charge.

Ex facie, it is a false charge.

Would you say that the BJP is trying to shape the judiciary, not that they would succeed?

Without any doubt; the resistance to Joseph is itself an evidence. They do not want independent voices.

So, this talk of independent judiciary…

They do not believe in it.

Do you think this press conference is a passing crisis, and the judiciary will sort out the issue from within?

It is a crisis that is endemic. It is a crisis that has to be resolved. I hope and believe that the institution will do it.

Without prodding from the outside…

How can anybody prod the judiciary? We all must stand together with the judiciary since they wish to uphold their independence.

So, the integrity of the institution needs to propped up from outside, indirectly and silently?

It needs to be propped up only to the extent that we should support all attempts to retain their independence.

To that extent, the BJP has a role to play. They said they would not interfere. Was that a wise step?

They are interfering. Why do you say that they are not interfering? They rejected a name recommended by the collegium for a reason that is specious.

To that extent, there is a tussle going on and the judiciary will outlast the pressure…

They are attempting to influence. I do not think that the institution will succumb.