In people's perception, confidence in judicial system on decline: Sibal

Speaking with PTI, Sibal said there are issues of corruption, of judges not performing functions according to their oath of office, of openly taking majoritarian positions, thereby inducing in the minds of the public the message that the majoritarian culture must be endorsed.

New Delhi: Asserting that confidence in the judicial system seemed to be on the decline in people's perception, Rajya Sabha MP Kapil Sibal has said alternatives could only be found when both the government and the judiciary accepted that the systems in place, including for judges' appointments, were not working.

In an interview with PTI, Sibal talked about what was ailing the judicial system, citing examples of how bail was not being granted in most cases by district and sessions courts, and highlighted the issue of a controversial speech made by Justice Shekhar Kumar Yadav of Allahabad High Court last year.

Sibal, speaking as a lawyer and not as president of the Supreme Court Bar Association, refrained from commenting on the alleged discovery of a huge stash of cash at the residence of Delhi High Court judge Justice Yashwant Varma.

"There is an in-house procedure to deal with the matter. Now, in the absence of facts, I don't think, as a responsible citizen of this country, I should be commenting on this," he said.

Sibal made the remarks on Saturday, before the Supreme Court made its in-house inquiry report in the matter public.

Asked if he had concerns about the judicial system at large, Sibal said, "What has been happening over several years is that there have been concerns about the judiciary on various aspects … One is the concern about corruption, and corruption has several meanings. One meaning is that a judge renders a judgment because of some pecuniary advantage. The other form of corruption is to work contrary to his oath of office, which is that he would render judgments without fear or favour."

"I will give an example. There is hardly a judge in a district court and the sessions court who grants bail. Now, it can't be that in every case, the magistrates court or the sessions court has to reject bail. In 90-95 per cent of the cases, bail is rejected," Sibal said.

He further said there was something wrong with the system.

"Is the judge afraid that if he or she grants bail, what will be the impact of that on the career?" the senior advocate asked.

The third form of corruption is that the judges are now openly endorsing a majoritarian culture and taking political positions, Sibal said.

"We had a judge in West Bengal who was openly endorsing the views of a political party and then, of course, he resigned and joined that particular party. We had a judge who openly said, 'yes I belong to the RSS'. We have Justice Shekhar (Yadav) who said that in India, the majoritarian culture must prevail and only a Hindu could make India 'Vishwaguru'. He used some very derogatory terms for the minority community while sitting as the judge," Sibal said.

Speaking about Justice Yadav's case, Sibal said an in-house procedure was decided upon but nothing was heard after that.

"What happened, what steps were taken, there was a communication to the judge, he apparently disclosed his mind to the in-house procedure. What happened, we don't know. Should it be made public or not? There are systems that have to be put in place," he said.

Justice Yadav allegedly made some controversial remarks while addressing a provincial convention of the legal cell and high court unit of the Vishva Hindu Parishad (VHP) at Allahabad High Court on December 8.

Speaking with PTI, Sibal said there were issues of corruption, of judges not performing functions according to their oath of office, of openly taking majoritarian positions, thereby inducing in the minds of the public the message that the majoritarian culture must be endorsed.

"These are things that need to be addressed urgently. Unfortunately, in many of these cases, the Supreme Court has not directly addressed these issues for reasons I cannot possibly fathom," Sibal said.

The senior advocate was also asked what the mechanism to deal with corruption was.

The only mechanism that is there, as far as the higher judiciary is concerned, is Article 124 of the Constitution, he said.

"We moved an impeachment motion, signed by more than 50 members of the Rajya Sabha, and that has not seen the light of day. There was earlier an impeachment motion against a CJI (Chief Justice of India). That, too, was blocked. So, if you cannot move forward under the constitutional process and there is no alternative effective mechanism to deal with such issues, where do we go?" the Rajya Sabha MP asked.

"That is the question we must ask ourselves and that is the question the judiciary must ask itself," Sibal added.

Members of several opposition parties in December moved a notice in the Rajya Sabha for the impeachment of Justice Yadav over his alleged remarks at the VHP event.

The notice mentioned that the speech delivered by Justice Yadav prima facie showed that he "engaged in hate speech and incitement to communal disharmony in violation of the Constitution".

Sibal said the perception of the public certainly was that the confidence that "we had in the judicial system seems to be on the decline".

Asked about his criticism of the Collegium system in appointing judges in the higher judiciary and what the alternative was, Sibal said an alternative could only be found if the judiciary and the government believed that there should be an alternative.

"Now, the government believes that the National Judicial Appointments Commission (NJAC) is the solution. The Supreme Court Collegium believes that theirs is the best system. Unless both these institutions accept the fact that both versions of accountability and the process of appointment are grossly inadequate, only then can we have an alternative," Sibal said.

The senior advocate said there could only be a solution when one stated that there was a problem.

"So, if the Supreme Court itself realises that the Collegium system is not functioning in the manner that it should, only then can there be alternatives. Then we can come forward and suggest what the alternatives should be," he said.

If the government believes that the NJAC is not the ideal solution for the process of appointment, only then there can be an alternative, he said, pointing out that the process should be transparent, looking at merit and not favouring persons who are ideologically and deeply committed.

"So, both institutionally, the government and the judiciary, must accept the fact that these systems that are in place are not working, once they accept that, there are a lot of solutions that are possible," the former minister said.