Unless society’s mindset changes, neither law nor society can be changed: Kapil Sibal

The Rajya Sabha Member and Senior Advocate was speaking at a People’s Tribunal in New Delhi

Kapil Sibal

It is a sign of the times when one of the nation’s most experienced and respected legal luminaries expresses lack of hope in the country’s highest court. Which is why when Senior Advocate Kapil Sibal expresses lack of faith in the Supreme Court, it should be a cause for concern.

Sibal was speaking at a People’s Tribunal organised by different civil rights groups in the Constitution Club of India, Delhi on Saturday, August 6, 2022. The Tribunal saw discussions on Judicial Rollback of Civil Liberties with special emphasis on Himanshu Kumar and Zakia Jafri Judgements of the Supreme Court.

The Tribunal’s jury comprised Justice AP Shah (Former Chief Justice, High Court of Delhi and former chairperson, Law Commission of India), Justice Anjana Prakash (Former Judge, Patna High Court), Justice Marlapalle (Former Judge, Bombay High Court), Professor Virginius Xaxa (Chair of the 2014 High Level Committee to Examine the Status of Scheduled Tribes) and Dr. Syeda Hameed (Former Member of the Planning Commission).

The final session of the tribunal was titled Judicial Assaults on Civil Liberties and the panel comprised Advocate Warisha Farasat (Supreme Court and Delhi High Court), Senior Advocate Nitya Ramakrishnan (Supreme Court of India), and Senior Advocate Kapil Sibal (Supreme Court of India). They spoke on different issues and judgements regarding how cases were dealt with on questions regarding liberty.

Senior Advocate Kapil Sibal spoke about why the Supreme Court, which should be protecting the individual rights, has been allegedly rendering judgements and orders that are antithetical to individual liberty.

“Iss saal mujhe pachaas saal ho jayenge Supreme Court mein vakalaat karte-aur pachaas saal ke baad mujhe aisa lagta hai ki mujhe iss samshta se koi umeed hai (Translation: This year, I will complete 50 years for my practice at the Supreme Court, and I think I don’t have any hope left in the institution.)” said Sibal, mincing no words.

“I have come to the conclusion that until society’s mindset changes, neither law nor society can be changed,” he added. He stated that when hate speeches were taken to the court, no material action was taken and they (the hate speeches) kept on continuing. He stated that in a society where ‘mai-baap’ culture is prevalent, no institution can be independent.

Independence can only be there when we stand up and say that we want independence. We are not independent. This is the reality of India,” he said. He highlighted how the Special Investigation Team (SIT), which was constituted to investigate the cases of Gujarat Riots, went on to take the statements of accused on face value to close the investigation and how the Supreme Court has agreed to this kind of investigation. Sibal had represented Zakia Jafri in the Special Leave Petition (SLP) moved before the Supreme Court, which was dismissed by the court in June this year.

“Truth is that whenever sensitive matters go to court, they go before certain judges and we know the result of those cases even before the judgement comes out, he alleged, referring to a case where a man was in jail under charges of Criminal Conspiracy (Section 120 B of the IPC), where bail was not given by the court, as he expected. “If the Supreme Court itself has given undue importance to PMLA act without recognising its penal nature,” he asked, “how will the lower courts go beyond the Supreme Court’s understanding?”

Warisha Farasat gave an overview of Supreme Court’s and different High Courts’ jurisprudence regarding civil rights and emphasised on the need to going back to the basics of constitutional rights, and the checks and balances the constitution envisaged for a smooth functioning of the state and democracy. “Political Opposition has been significantly diminished and voices of dissent from the civil society have been crushed. Naturally, in such a situation the only place where the citizen can look up to is the judiciary to uphold its rights,” she said, indicating the importance of the judiciary in the current political climate.

If courts are not cognisant of the reality of inequality power dynamic between an individual and the state, she said, justice cannot be served. “In many other judgements the Supreme Court has literally given the central government a walkover and arbitrary state action has been left unchecked,” she said. She highlighted the use of Unlawful Activities Prevention Act (UAPA) for any and every offence and the Delhi High Court’s remarks on how UAPA cannot be used in ordinary penal cases; delaying and keeping cases of constitutional importance pending like revocation of article 370, electoral bonds case, the challenged to CAA, the post 370 habeas corpus petitions – indicating that the Supreme Court seems to have taken a side.

“Again, we forget, needless to say that Habeas Corpus is the highest writ of the land and it is an important safeguard under the constitution which is given not only to citizens but also to non-citizens and to take it away and to do nothing, to delay these cases is in itself an act of omission,” said Adv. Farasat, adding, “Therefore, it appears that whenever a significant matter that truly bothers the central government is at issue, the Supreme Court seems to have done something or nothing but it seems to have caved in.”

Senior Advocate Nitya Ramakrishnan spoke about Supreme Court’s dichotomy regarding its judgements on personal liberty with changing times. “In fact, it will be seen that at times of crises, the court generally stood by the executive and other times it has been expansive about liberty and accountability,” she said. According to Adv Ramakrishnan, the law is not being applied, and courts are accepting the distortion of narratives and facts.

The jury of the people’s tribunal will release its report within a week’s time based on the arguments and documents presented during the day. The full session may be viewed here.



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