SC sending out worrying signals, misuse of CBI institutionalised

In a candid and wide-ranging exchange at the NH Round Table, Kapil Sibal explains his worries about the judiciary and potential threat to democracy and the Constitution. Following are excerpts from the exchange:

Would you agree if we say the Indian Judiciary today has fallen in line with the ruling party’s ideology and agenda?

I will be attracting contempt of court if I say that! And I do believe that the Judiciary cannot have a different standard than the standards held by society. So, judges are influenced by society. But having said that, let me tell you what my problem with the judiciary is. I cannot comment freely because I am a counsel in the case; but when the Supreme Court, for example, ordered an investigation by the National Investigating Agency, essentially a counter-intelligence agency, to inquire into a marriage in Kerala, a marriage between two consenting adults, to me it is worrying.

You are referring to the Love Jihad case?

The court did not use the term Love jihad; the media did and erroneously at that. The bride had converted to Islam several years before the marriage. In fact the bride and the groom got to know each other through a matrimonial advertisement that appeared on a portal some time in November last year. The bride was 24 years old and the groom was 27. He responded to the advertisement along with 70 other suitors and she chose him. They got married in December. So how was it a case of Love jihad?

But wasn’t their marriage annulled by the High Court?

Two earlier petitions for annulment of the marriage were dismissed. On both occasions, judges spoke to the young lady in chambers and satisfied themselves that she was happy in the marriage and wanted to live with her husband. In fact, there is a transcript of a conversation, part of the court records, between the woman and her father during which she refused to go back with him because, she said, he would have ‘RSS people’ waiting to reason with her. But on their third attempt, the high court declared the marriage to be void. And when the appeal comes to the Supreme Court, the court decides to order a so-called independent inquiry by the NIA!

As a senior lawyer, would you say the Supreme Court again erred in dismissing the Sahara Papers case in which documents seized by the Income Tax department indicated hefty payments to politicians?

I was again a counsel in this case and it would not be proper for me to comment. But let me put it this way. Let us assume that the Supreme Court was right in saying that names and amounts appearing in diaries and documents were not evidence. But the court did order an inquiry in the Vyapam case based on similar entries in documents, isn’t it ? It is a different matter that the inquiry is going nowhere, that the poor children and their parents are languishing in jail while no action is being taken against politicians and bureaucrats named in those documents. But the court did order an investigation. In Sahara Papers case too, even if we accept that the documents were not evidence, they certainly called for an investigation. Why would the court stop an investigation to unearth the evidence?

What is your reaction to the apex court’s readiness to hear the Triple Talaq case?

Well, it is the prerogative of the court and the CJI to decide what they would hear. But when you declare in the presence of the Prime Minister at a function at Allahabad that during the summer vacation you would hear three specific cases, people wonder if the public announcement was meant for the PM’s ears. It sends out a wrong message. And when you decide to hear three cases, one on Triple Talaq, another on minorities in Assam and a third one I am unable to recall but also doing with the minority community, people do start wondering if it is just a coincidence. And then the court also takes up the Babri Masjid case and directs that hearing be concluded within a specific time-frame. People will wonder if these are the most urgent cases for the Supreme Court to hear during the vacation.

How do you see the use by this Government of agencies like the CBI, ED etc.?

You mean misuse or abuse? There is now little doubt that they are the long arms of the Government. When the apex court said they would order an inquiry by an independent agency like the NIA in the Kerala wedding case, I told the court that I could file an affidavit and list the number of U-turns agencies like NIA and CBI have taken in the last three years.

But some would say the trend was started by the Congress. CBI was described as the Congress Bureau of Investigation and the caged parrot…

I am aware of the allegations. And it is possible that there were isolated cases. I won’t say, no. But it has been institutionalised by this Government. These agencies are being misused to target any leader who poses a threat to this dispensation. They are being silenced, co-opted and we even have cases in which these agencies are telling people that they would be let off if they give a statement against this leader or that.