On October 21, 2022, senior advocate Kapil Sibal criticized the current climate of fear prevailing in the country while speaking at a private event organised by lawyers to felicitate him for completing 50 years at the bar. Senior advocate Sibal bemoaned the way that particular judges are assigned cases that have an impact on the ruling administration, which results in favorable rulings for the government.
To support his claim, Advocate Sibal used the recent case of GN Saibaba as an example. “I have never heard of an acquittal being suspended on a special Saturday hearing; sentences (after conviction) are only suspended in the rarest of circumstances. It is unsettling that the institution must worry for itself,” he stated, as reported by the Bar&Bench.
On October 15, Saturday, a Supreme Court bench comprising of Justices MR Shah and Bela M. Trivedi suspended a decision by the Bombay High Court that acquitted GN Saibaba in a case involving alleged Maoist ties.
According to Sibal, the problem lies with the Chief Justice of India’s (CJI) master roster of case-allocation authority. “The issue is with master of roster. Most cases dealing with government go to a particular judge. That is not automatically assigned. So why is that happening,” he said, as reported by Bar & Bench.
He pointedly urged lawyers to organise a movement to oppose executive overreach and urged them not to be intimidated. “I will be a part of this mobilisation. If you go to conquer Mount Everest you fear but still you go. It is the love of our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail),” Sibal said, as reported by Bar&Bench.
He condemned the institutional breakdown that had allowed the administration to operate unfettered. “Prior to 2014, the situation was not that bad. But after 2014 no institution is willing to stand up. Look at the University system and position of vice chancellor.. see what is happening in the judiciary, police force, Election Commission; media is the worst,” he said, as reported by Bar&Bench.
In response to a query on legislation such as the Unlawful Activities Prevention Act (UAPA), the Prevention of Money Laundering Act (PMLA), and the Prevention of Terrorism Act (POTA), Sibal remarked that it is not the law itself that is important, but rather how the executive branch uses it. “Even under ordinary laws the machinery is probing with a polluting mind. The law does not matter, it is the agency which is dealing with the law and implementing the same. It is not just the stringency of the law,” he opined.
In this sense, he emphasised how the executive was enabled by the judiciary’s silence. “If you misuse the law and the judiciary is silent, then what do you to. Silence of the judiciary is the most vocal part of the Indian system. What to do,” he asked, as reported by Bar&Bench.
He also had a negative opinion of the Bar’s inactivity. “Lawyers are silent and they see the profession as a money making venture. Lawyers must stand up without fear,” he stated. He urged lawyers to bring about social mobilisation so as to secure justice. “I want to personally do something and tell the lawyers of the country that they have a role to play in social mobilisation of this country. We need a platform for insaaf and justice. Insaaf requires sacrifice and you cannot be sitting in an office,” he stated, as reported by Bar & Bench.
According to advocate Aparna Bhat, there is fear among advocates, and even if they want to speak out, there is a support gap and a lack of it. She inquired as to “how to bring them together.” To this, Kapil Sibal replied, “If you go to conquer Mount Everest you fear but still you go. It is the love for our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail).”
The audience then questioned, “Lekin agar UAPA lag gaya?”
“Fir thode din aur jail bus. Aur kya (then some extra days in jail). I will start a lawyers movement in Delhi. It will happen and it has to start somewhere,” he stated, as reported by Bar & Bench.
Through his speech, Senior Advocate Kapil Sibal has brought in focus the injustices perpetrated by executive overreach and the judiciary’s compliance. The recent judgments against GN Saibaba, Umar Khalid, and Jyoti Jagtap depict the arbitrary sense displayed in rulings by the judiciary. While the Supreme Court has been dealing with petitions filed against instances of hate speech, their continual ambivalence on the misuse of UAPA has cost grave loss of personal liberty of some of India’s finest activists and thinkers.
While gang rape convicts in the Bilkis Bano case were recently granted bail due to their “good behavior”, a differently abled professor, suffering from ailments, GN Saibaba, has been kept in an Anda cell (solitary confinement), with constant surveillance. Where has the sense of justice gone? How has it gotten limited to the majority section of our country? When agents of the law, lawyers and judges, themselves living in a state of fear of incarceration, who will carry the baton of justice for those wrongly incarcerated. Advocate Kapil Sibal has, questioned the flaws in judicial delivery.
Related:
Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail
Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process
Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’
We are living in constant fear of State: Kapil Sibal