[Kapil Sibal Lecture] “Collegium System was intended to protect judicial independence, but has become centralized & arbitrary”: SCBA President

Senior Advocate Kapil Sibal, who currently presides over the Supreme Court Bar Association (SCBA), Today (Oct 26) delivered a captivating lecture at the Sikkim Judicial Academy. Renowned for his legal acumen and extensive experience, Sibal addressed fundamental issues concerning judicial independence, constitutional principles, and systemic reforms. From his opening statement to the conclusion, Sibal’s address was both a critical analysis and a clarion call for meaningful reforms within the Indian judiciary.

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Sikkim: Senior Advocate Kapil Sibal, an esteemed figure in India’s legal landscape and currently the President of the Supreme Court Bar Association (SCBA), today delivered a compelling lecture at the Sikkim Judicial Academy. Known for his extensive experience and insightful perspectives, Sibal addressed crucial issues affecting the Indian judiciary, such as judicial independence, the principles of the Constitution, and the need for systemic reforms.

His address was not only an analytical critique but also a passionate appeal for meaningful reforms aimed at enhancing the judiciary’s alignment with democratic values and the rule of law.

Speaking as a Citizen, Not as SCBA President

At the outset, Sibal made it clear that he was delivering his speech as a concerned citizen and not in his capacity as SCBA President.

“Ultimately, the goal is to uphold democracy,”

-he declared, setting a tone that highlighted the intertwined nature of legal principles and their real-world impact.

His central theme revolved around a fundamental yet often overlooked idea: that

“the law does not inherently equate to justice,”

-calling attention to the pressing need for structural reforms to ensure that the judiciary upholds democratic principles.

Questioning the Term “Subordinate Judiciary”

Sibal addressed the often-used term “subordinate judiciary,” which he considered a misnomer. He explained that, although the Indian Constitution uses this terminology under the section on subordinate courts, the judiciary is not inherently subordinate in function or significance.

Drawing on historical references, Sibal pointed out that the Simon Commission, during the colonial era, emphasized the necessity of a competent and just judiciary to foster public confidence—a concept he deemed critical for the judiciary’s relevance today.

He emphasized,

“If people lack confidence in the judiciary, it undermines its effectiveness,”

-stressing the importance of trust in judicial institutions and its relationship to discussions on judicial appointments and accountability.

Historical Development of Judicial Appointments

Sibal traced the history of judicial appointments back to recommendations made by the 1934 Joint Select Committee, which aimed to protect the judiciary from governmental influence. He described how the Government of India Act of 1935 contributed to district-level judicial appointments, specifically involving governors and High Courts.

He further explained that post-independence judicial conferences in 1948 emphasized greater High Court control over appointments, leading to the creation of Article 235 in the Indian Constitution.

This Article empowered High Courts in civil judiciary appointments, but Sibal argued that the system still lacks full independence.

He expressed concern that High Courts maintain significant control over district judges, a situation that has sometimes led to allegations of partiality and biased promotions.

The Collegium System and Its Limitations

Turning to the contentious collegium system for judicial appointments in the Supreme Court and High Courts, Sibal offered a nuanced view. He acknowledged that he had previously supported the collegium system, recognizing it as a mechanism to preserve judicial independence.

However, he noted its transformation over time, stating,

“It was intended to protect judicial independence, but it has become centralized and arbitrary.”

Sibal elaborated that the current collegium framework often places High Court judges in a position where they seek favor from Supreme Court judges for elevation. This dynamic, he argued, hampers the merit-based nature of judicial appointments, allowing networking and favoritism to take precedence over competence.

He advocated for clear criteria to ensure appointments are both transparent and meritocratic.

Bail and Precedent: Current Ground Realities

Sibal shifted focus to the practical challenges within the legal system, especially the principle of

“bail as the rule, jail as the exception.”

He highlighted how lower courts frequently deny bail due to concerns about potential repercussions from higher authorities, creating a culture where judges may feel pressured to conform rather than exercise independent judgment.

Sibal also addressed the erosion of the principle of stare decisis, which ensures predictability in legal precedents. The rise of statute-driven laws, such as the Prevention of Money Laundering Act (PMLA), has contributed to legal uncertainty by undermining established precedents.

Sibal pointed to cases, including those impacting the 50% reservation cap, where statutory interpretations have introduced inconsistencies, contributing to a fragmented judicial landscape.

Sibal’s Critique of PMLA and Article 21

One of Sibal’s strongest critiques was directed at the PMLA, a law he described as both procedurally and substantively flawed. He underscored the undue burden placed on the accused by the law’s “twin-test” for bail, which he argued violates the Constitution’s mandate of “procedure established by law” under Article 21.

Referencing the Supreme Court’s recent decision in the Pankaj Bansal case, which affirmed the requirement of written grounds for arrest to safeguard individual rights, Sibal argued that the judiciary should continue to expand exceptions rooted in Article 21 to provide justice when procedural laws fall short.

The Call for Institutional Reforms: A Fresh Perspective

Sibal’s address culminated in a call for extensive institutional reforms, stating that true judicial independence cannot be achieved under the current model of centralized oversight by High Courts or the collegium system.

He advocated for a more inclusive and decentralized structure that integrates diverse viewpoints and bolsters public trust in the judiciary. Sibal also encouraged India to rethink outdated colonial-era practices, such as police remand, which he contended are incompatible with democratic principles. He observed,

“In developed countries, investigations precede arrests, while here, arrests precede investigations,”

-underlining the urgency for reforms aligned with global best practices.

A Candid Reflection on Judicial Accountability

Kapil Sibal’s lecture offered a candid critique of the Indian judiciary, providing insights drawn from over five decades in legal practice. His address reflected not only on the internal challenges facing the judiciary but also on broader implications for India’s democratic growth.

Through his thoughtful analysis and first-hand observations, Sibal highlighted significant gaps in the judiciary’s current framework, adding a rare insider perspective on the pressing need for systemic reforms.

As Sibal concluded his address, it was evident that his message extended well beyond the audience at the Sikkim Judicial Academy.

His impassioned call for transparency, judicial accountability, and meaningful reforms has the potential to fuel substantial discussions within legal circles, potentially influencing the future path of India’s judiciary and its commitment to justice and democratic principles.

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