Sibal says judges should exercise self-restraint in court
The government may not press ahead with a clause in the draft Judicial Accountability Bill that seeks to curb casual observations (obiter dicta) made by senior judges against the legislature and the executive during the hearing of a case, Union Minister for Law and Justice Kapil Sibal has said.
The government may not insist on the provision that deems as misconduct the value judgements made by justices outside the contours of the case being heard, Mr. Sibal said in an interview to The Hindu. It would be preferable if the judges exercised self-restraint, he said.
The Chief Justice of India-designate, P. Sathasivam, had told The Hindu earlier this week that it would not be appropriate to curb the normal interactions of judges with counsel during the course of hearing a case.
He had strongly opposed certain aspects of the Bill, saying there cannot be any control in the administration of justice.
Mr. Sibal pointed out that the discourse in Indian courts was entirely different from the one in the U.S. and the U.K. where written briefs are the norm, leaving no occasion for judges to pass remarks.
While agreeing that it was not right to say that judges in India cannot make any observation at all, he, nevertheless, said: “The way forward is not that the judiciary says what it wants to say without reference to facts, and the media report that. I think there should be an element of restraint.”
“We should certainly not curb the right of the judge to question, respond and air his view. But the judge also should not say a thing which might be misused by a litigant for his own advantage and by political parties,” the Minister said.
Mr. Sibal seemed to disagree with Justice Sathasivam’s view that the present collegium system followed in the appointment of judges was not working well. Mr. Sibal insisted that there was a broad consensus in the country that the system was not working well. Pointing out that the appointment of a judge “is at the heart of the delivery of the justice system,” he said: “Even prominent retired judges like the late Justice Verma had admitted the present system was flawed,” Mr. Sibal added.
Emphasising that the country must have judges of impeccable integrity, without any political affiliations, Mr. Sibal said the government was also getting inputs from those who were not part of the collegium system. Stressing upon the need to have a “collaborative exercise,” Mr. Sibal said that there was no democratic country in the world where the executive was kept outside the appointment of higher judiciary. “India is an exception…the executive cannot even suggest a name. If I am the Law Minister I must be having some understanding of my compatriots in the legal profession, how competent they are and I could be having the knowledge perhaps the judges do not have. Still I cannot suggest a name.”
Acknowledging that the judiciary has a very important role to play and must be respected, the minister said the judiciary must also respect that “we [the executive] too have a vital role to play.” Asked about the CJI-designate’s observation that there was corruption in the judiciary but it was far less than in the political class, Mr. Sibal declined to enter into a debate on the issue but mentioned that every Chief Justice of the country has almost accepted the fact that there was corruption in the judiciary.
“I think that the judiciary should be more concerned about corruption within itself because the confidence of the people of India depends on a corruption-free judicial system and effective delivery system of justice. Unless the judiciary looks within itself, we will not be able to do much,” he said.
In an obvious reference to the Ishrat Jahan encounter case, in which the Central Bureau of Investigation (CBI) filed charge sheets on Wednesday, Mr. Sibal said his real worry was “strange statements” being made by the Opposition and attempts to attack the institution. “It is serious when a leader is trying to directly or indirectly pre-empt the investigation — remember all this ultimately goes to the court. If there is no evidence, the court will acquit. If you attack like this, it is a greater danger to investigative autonomy….the CBI cannot investigate anything at this rate. Mind you, it was their failure to give justice that landed the Gujarat government in this position – now they are attacking the CBI. I think this is very dangerous,” he said.