By conventional wisdom, the Government should be saluting the Supreme Court of India for being a conscious custodian of the law, for ensuring that citizens meet their constitutional responsibilities, for doggedly pursuing cases of corruption in public places where the national exchequer has lost real or notional money in several thousand crores of rupees, for questioning policies that adversely impact people and legally conducted businesses, and for offering a ray of hope to victims of crime and social and political apathy. By conventional wisdom, the Government should have seized an opportunity out of the apex court's proactiveness in corruption cases by purging notorious elements from within and emerging clean.
But wisdom, conventional or otherwise, has become second nature to the Congress-led UPA as much as modesty was to Winston Churchill. So, on Thursday, citizens of the country watched in stunned amazement as Union Minister for law and Justice Kapil Sibal used the floor of Parliament to launch a broadside against the judiciary. His specific target was the Supreme Court. After duly acknowledging his “greatest respect for the Supreme Court of India”, he proceeded to demolish that respect with a tirade that was unworthy of his position. Moving the Constitution (120th) Amendment Bill, 2013, that seeks to replace the collegium system of appointing judges with a Judicial Appointments Commission, he alleged that the judiciary “rewrote” the Constitution in 1993 by instituting the collegium system. He claimed that the move had “disturbed the delicate balance of separation of powers” between the executive and the judiciary.
Sibal has a right to his opinions (on an earlier occasion he had claimed that the courts were out to project politicians as criminals) and the Government has the power to amend the Constitution any which way it likes so long as it does not violate the spirit. But criticism must be dignified. By maligning the judiciary in the process of moving a Bill, the law Minister has effectively sent the message that the Bill is a reflection of the Government's anger with the apex court for having put the former in the dock in recent months over a spate of scams, and a way to get even.
He should have taken a leaf out of the conduct of Arun Jaitley, leader of Opposition in the Rajya Sabha, on the issue. While Jaitley too favoured the replacement of the collegium system, he did not attack the Supreme Court. Instead, he advised the Government to initiate more broadbased consultations with experts and various stakeholders including the judiciary, before Parliament adopted the Bill. The Minister brushed that aside.
Sibal perhaps believes that his acerbic opinions on the judiciary reflect that of the people because he has been elected by them. That's a mistaken view. The credibility of politicians is low. According to findings published in a recent issue of The Spectator of an opinion survey that WhichIJ/Gallup conducted in the US and the UK, politicians are the least trusted; just seven per cent of the people surveyed in the US and 10 per cent in the UK found them trustworthy. The medical profession figures right on top of the trust list, with lawyers rated the third-most trustworthy after teachers. No awards need be announced to guess correctly where the Supreme Court and the politicians will stand if a similar poll is done in India. It must be added, though, that journalists in the WhichIJ/Gallup results emerged as the second least-trustworthy after politicians.
There is a fundamental flaw in the manner Sibal has bifurcated the issue of revamping the process of judicial appointments. He presented two Bills for the purpose: First, to amend the Constitution and scrap the collegium system; and second, to finalise the modalities of creating a Judicial Appointments Commission that will replace the collegium. The two are inter-linked, and yet, the law Minister decided to keep the latter under the authority of the legislature. In other words, a legislative order through which this commission will shape up and conduct its work can be changed and played around with by the Government with the help of a simple majority in the House, as and when it desires to do so.
This is dangerous as it opens up the possibility of political manipulation in judicial appointments. Had the Judicial Appointments Commission Bill, 2013, been part of the Constitution (120th) Amendment Bill, the functioning of the proposed commission would have been mandated by the relevant provisions of the Constitution and not left to legislative mercy. Moreover, the two Bills, as one entity, should have ideally been referred to a Parliamentary Standing Committee for further deliberations. As things stand, only the Judicial Appointments Commission Bill goes to the parliamentary panel, since the Government has already pushed through the Constitution amendment Bill in the Upper House.
Sibal's arrogance contrasts sharply with the humility the Supreme Court has shown through two of its recent decisions. The first concerns its last year's order that only sitting or retired High Court Chief Justices or judges of the Supreme Court can head the Central Information Commission. A Bench of Justices AK Patnaik and AK Sikri revisited that order a few days ago and admitted that the apex court's verdict “suffers from mistake of law”. The judges recalled the “directions and declarations in the judgement under review”. They added that “this court made a patent error in directing the rule-making authority to make rules within a period of six month”. Catch the omniscient Sibal being this humble!
In the second case, the apex court agreed to review its July verdict that persons in lawful custody cannot contest elections. In the July order, a Bench of Justices AK Patnaik and SK Mukhopadhaya upheld a Patna High Court judgement and said there was no infirmity in the High Court's order that “a person who has no right to vote by virtue of the provisions of Section 62(5) of the Representation of the People Act, 1951, is not an elector and is, therefore, not qualified to contest the election…” The Supreme Court has now shown willingness to be reasonable when the occasion demands.
When the occasion doesn't, the apex court has been firm, as on its verdict that convicted MPs and MlAs stand disqualified even if they have challenged their convictions. The same Bench that agreed to review the order on barring jailed persons from contesting elections, told the Government's law officers that “you have no case”, and dismissed the review plea on convicted MPs/MlAs because it did not raise any “substantial question of law”.
But Sibal's performance in Parliament that Thursday has raised many questions of propriety.