‘BJP govt not tolerant of judicial assertion’
NEW DELHI: Senior Congress leader, Rajya Sabha MP, former Union minister, and senior advocate Kapil Sibal has emerged in recent weeks as an important voice on the political controversy around the Supreme Court. He spoke to Prashant Jha on the fault lines between the executive and the judiciary, the crisis in the top court, and the fissures between the Opposition and the Chief Justice of India. Edited excerpts:
What is at the root of the executivejudiciary standoff on judicial appointments?
When governments don’t have a full majority, judicial space expands. Coalitions make it difficult to take decisions. That gives the judiciary space to fill the vacuum. The executive calls it judicial overreach; the judiciary says that since you don’t perform, what are we to do?
When you have absolute majorities, the majority wants its way and is intolerant of any judicial assertion. We are in the era of a majority government, which unfortunately also has an agenda and seeks to fill all institutional offices with RSS (Rashtriya Swayamsevak Sangh) pracharaks. There is an attempt to have like-minded people within the judicial system. That is the case of Justice KM Joseph - he gave a landmark judgment and the government has made up its mind to ensure that he is not elevated despite the collegium’s recommendation. That is the assertion of the majoritarian government telling the judiciary we will have our way.
Do you think the collegium should have sent his name back to the government?
I am sorry they did not. I hope all of them will reassert the recommendation and send the file back. Any attempt not to do so will have a telling effect since you send a signal to other justices that if you render judgments against the government, your expectations of elevation will be jeopardised.
But the collegium may be trying to take into account the government’s concerns on regional representation and send a consolidated list, including Justice Joseph?
What if they accept all others and reject Justice Joseph?
But they can’t if it is sent back, right?
They (the government) can say it is a fresh recommendation. They can keep the file pending. Regional representation was an issue on January 18, 2018. Why did they take over three months to send the file back? They could have given the reason then. But you hold on to the file, you hope that some member of the collegium will retire, then someone else will come; you can play politics. I don’t think the executive should be given the space to play politics. The judiciary should speak in one voice.
Even if one was to accept your premise that the Bharatiya Janata Party (BJP) wants to push its own people in the judiciary, is it unique? Many point to the Congress track record of the 1970s.
That era is over. You have the 1993 judgment. Why talk about a time when there was no collegium? The appointment was then in the hands of the executive. In the present era, where the collegium has supremacy, the executive is asserting and that is where the conflict lies.
But maybe we would not have this scale of vacancies and standoff?
You would have transformed the judiciary into another arm of the government.
The second fault line is internal to the judiciary. How do you look back at the press conference of the four judges?
The internal contradiction is the result of a lack of leadership. Any leader of any organisation must take his organisation with him. There will be dissent, differences of opinion. You bring it together, evolve a consensus. If the leader fails to do that, is in confrontational mode, does not listen to the four senior-most judges, you have this situation.
But what has going public achieved?
That is even worse. Even after a public controversy, the judiciary becoming openly criticised; there is no resolution. You must give credence to those who came out publicly. No member of the judiciary at this level takes this extreme step unless there is an absolute roadblock. The bottom line is that judges within the system feel the system is not being run in a manner which upholds the integrity and independence of
the judiciary.
Let us frame the bottom line differently: Is the Chief Justice the master of the roster or not?
Yes he is. Let me concede that. Now, supposing the master of the roster does something inconsistent with the independence of the institution, where can that order be challenged - nowhere? So that will be the only order in the Constitution which cannot be challenged.
Orders of the PMO (prime minister’s office), Cabinet, any other institution, can be challenged, but not an administrative order of the CJI. So that would be an exception. Where is this exception in the Constitution? It is inconsistent with the rule of law.
How can an administrative order not find an avenue of challenge? There must be recourse.
THE GIRL’S FATHER FILED A PETITION IN KERALA HIGH COURT SEEKING CUSTODY OF HIS DAUGHTER, ALLEGING THAT THE MARRIAGE WAS NULL AND VOID