Senior Advocate Kapil Sibal highlighted the fear of career repercussions among judges regarding bail decisions, noting that trial court judges often hesitate to grant bail due to potential transfers or promotions. He criticized the Collegium system, which centralizes power and undermines judicial independence. Sibal called for a broader stakeholder involvement in judicial appointments to address these challenges and foster independence.
New Delhi: In a candid address on Saturday, Senior Advocate Kapil Sibal highlighted a troubling trend in the Indian judiciary regarding bail decisions. He observed that trial court judges often hesitate to grant bail in criminal cases due to concerns over potential transfers or lost promotion opportunities.
Sibal pointed out the risks faced by even High Court judges, citing examples of former Orissa High Court Chief Justice S. Muralidhar and former Rajasthan High Court Chief Justice Akil Kureshi, both of whom were transferred after making controversial rulings. He stated,
“If judges of the High Court can be transferred, if they give decisions in a particular way – Justice Muralidhar is an example, Justice Kureshi is an example – then why should the subordinate court judge not be afraid of his transfer?”
Impact of Bail Decisions on Judicial Careers
According to Sibal, the fear of repercussions can significantly affect a judge’s decision-making.
“Why do you think that in this country – even though the law is bail is rule and denial is exception – how many subordinate judges give bail to people? And why do they not give bail to the people?”
he asked. He elaborated that subordinate judges often refrain from granting bail due to fears of being perceived as biased or motivated in their decisions. He noted that
“this sends a signal – that the judge is going to be changed with this kind of decision and that you will also be transferred. No judge wants that.”
The Centralization of Power in Judicial Appointments
Sibal also addressed the underlying issues related to the Collegium system of judicial appointments, which he believes centralizes power in a manner that compromises judicial independence.
“As long as you have a centre of power vested in a particular institution, which controls the subordinate courts, you will not get independence.”
He proposed that a new system for appointing judges should involve a broader range of stakeholders, excluding those with vested interests in the current system.
“We have to make sure that we have a system in which appointments, promotions, disciplinary actions are vested in an authority in which all stakeholders are represented – men versed in law, eminent persons, retired judges, representatives of the government or who have been in government.”
Toward Solutions for Judicial Independence
While acknowledging the complexity of the issue, Sibal stated,
“I don’t have a clear solution to it, quite frankly. But at least the problems should be addressed. The solutions will emerge only if the problems are addressed.”
His remarks, delivered during a two-part lecture at the Sikkim Judicial Academy, emphasize the urgent need for reforms in the Indian judiciary to ensure that judges can make independent decisions without fear of retribution. The conversation around judicial independence and the bail system continues to be crucial for the integrity of the legal framework in India.
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