New Delhi: Rajya Sabha member and senior advocate Kapil Sibal has said that the new criminal laws are far more draconian than the existing ones and prone to misuse by enforcement agencies, just like the Unlawful Activities (Prevention) Act and the Prevention of Money Laundering Act (PMLA).
Speaking to ThePrint in the backdrop of the Lok Sabha results, the former Congress leader said he will write to the government urging it to review the new criminal laws provided the Supreme Court Bar Association (SCBA), which he heads as a president, wants him to do so.
The laws are set to come into effect on 1 July.
Asked whether he would urge the two key coalition partners — Nitish Kumar and Chandrababu Naidu — in the NDA government to hold more deliberations on the new codes, Sibal said no.
“I don’t think that I as an individual should do that. But as president of the Bar Association, if I take the bar into confidence and if the bar wants me to do that, then I will write to the government. I don’t think I will reach out either to Chandrababu Naidu or Nitish Kumar,” he said.
Last month, Sibal won the SCBA elections with a thumping majority, defeating two rival candidates. Having held the post of SCBA president thrice in the past, he re-entered bar politics after a gap of 22 years. Considering he is an active politician at the national level, Sibal was reluctant to rejoin bar politics, but said he gave in to the growing demands of SCBA members of all age groups, across the spectrum.
Also Read: Police, judicial custody & use of handcuffs — how new bills may make criminal laws harsher
‘Modiji not used to taking opinions of others’
Sibal emphasised the need to re-debate the laws that were passed in the last 10 years during the Modi government, especially the new criminal laws. “There was no discussion about them. During the hearings before the committee (set up by the Centre to propose the changes) the lawyers who stand for liberty and liberal values were not even called as witnesses. Government lawyers were called and their opinion was taken,” he said.
The senior counsel defended the UPA government’s move to introduce the PMLA, which he said, was done as part of India’s international commitment. He, however, conceded that some of the amendments made to the law during the first UPA regime were wrong.
“I plead guilty to it. But the fact of the matter is that one cannot justify the absolute misuse of these laws,” he said.
Sibal predicts that a coalition government will be the future of India’s governance and, according to him, it is a better option for the country’s democracy.
On how he sees the transition of Narendra Modi, from leading a brute majority government to a coalition one, Sibal said: “Coalition governments are difficult to run. You have to take the opinion of others and from what I know of Modiji, he is not used to that.”
But he is quick to add that Modi is a smart politician, indicating he may manage it. “I don’t think he is a smart prime minister, but he is a smart politician,” he said.
Also Read: ‘Gameplan changed’—why sidelining Nitish is no longer an option for BJP
‘Unfortunate decline’ in the bar’s independence
Between his last term as SCBA president to now, Sibal feels a lot has changed in bar politics. “Unfortunately, the bar has got divided on political lines,” he lamented. Recalling his past terms, he said, “We (lawyers) never brought politics into the functioning of the bar and courts. We may have our political views, but that was outside of the court.”
He regrets the “unfortunate decline” in the bar’s independence and its ability to create strong opinions and narratives, similar to the ones that have in the past contributed to the country’s growth.
“We as members of the bar, quite frankly most of us, and I criticise myself as well, are less concerned about the affairs of the bar, the importance of the role of the bar in nation-building. The bar anywhere in the world in liberal countries is at the forefront of change. Here, we (bar) are far from being at the forefront of change,” he said.
He added: “We embrace the status quo, we have embraced the status quo. Whatever the status quo, we are more interested in going to court, arguing our cases, going home and preparing for the next day. We don’t think about why we are members of the bar, what is our role as lawyers, what do we need to do for the nation. I think we have all forgotten about that.”
Concerns about ‘institutional procedures’ in judiciary
Speaking on the collegium system for appointments to the higher judiciary, Sibal called it a flawed process. But he does not favour government control over it as well, particularly in the wake of recent developments where high court judges have publicly acknowledged their association with a political party. The bar, he adds, has a little role to play in the process. However, he believes that the collegium members (judges) are aware of the shortcomings in the current appointment mechanism and should introspect.
“I don’t want to say this, but we know exactly what happens within. That’s not the best for the judicial system,” he said.
With regard to the functioning of the judiciary, Sibal has some concerns, particularly on institutional procedures that lack uniformity. He denied being critical of the judiciary because its judgments have favoured the government, saying he has criticised verdicts that are “inherently flawed,” like the ADM Jabalpur verdict.
“Every institution must have procedures in which stakeholders have confidence. How is it that in some high courts there are no issues, the bar has never said anything. Unfortunately, there is a problem that even the judiciary is aware of. And if we criticise the judiciary, then it seems that we are unhappy because the judgment is in favour of the government,” he said, adding that his criticism was on a “fundamental issue of procedures”.
Issues such as “power of the roster”, “judgments reserved on bail for months,” are matters of concern, he added, saying uniformity in judicial procedures is essential to ensure the confidence of the public in the institution, which is the “only bulwark against excessive use of power”.
(Edited by Gitanjali Das)
Also Read: Prosecution ‘copy paste’ arguments in UAPA cases, ‘psychologically overawe judges’, notes J&K HC