From Zero-Loss To Zero-Credibility. Why Rahul Gandhi Should Show Kapil Sibal The Door

Some lawyers are too clever by half. They are a curse on the system and do a disservice to the cause they claim to espouse, or the parties they belong to.

Exhibit No 1 is Kapil Sibal. Ever since he counselled his party’s top brass to launch an impeachment motion against the Chief Justice of India (CJI), Dipak Misra, he has not only damaged the judiciary, but also his party’s own credibility. From claiming zero-loss in the 2G scam, Sibal is now entering zero-credibility territory, dragging his party’s own credibility down with him.

What goes for Sibal, goes equally for the other senior lawyers who got a bloody nose in the Judge B H Loya case, where a bench headed by the CJI, in a judgement authored by Justice D Y Chandrachud, rejected the demand for a special investigation into Judge Loya’s death. Judge Loya, who was hearing the Sohrabuddin Sheikh encounter case in which Bharatiya Janata Party (BJP) chief Amit Shah was earlier one of the accused, died of a heart attack, and several judges who were with him when he died testified that there was nothing unusual about his death.

The Loya judgement criticised lawyers Dushyant Dave, Indira Jaising and Prashant Bhushan for making insinuations against the judiciary, and for claiming that two of the judges – Justices Khanwilkar and Chandrachud – should have recused themselves since they too were from Maharashtra, where Judge Loya’s death occurred. The judgement saw in the Loya petition “veiled attempts to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions”.

Just one day after the Loya judgement, Sibal launched his party’s impeachment motion against the CJI – the optics of which seemed like retribution for failing to get the verdict they wanted from the CJI-led bench.

Like in the previous case, Sibal’s moves at the Supreme Court yesterday (8 May) reek of bad faith and even worse judgement.

First, a petition was filed before Justice Jasti Chelameswar’s court to review the Rajya Sabha Chairman’s decision last month to reject the Congress-sponsored impeachment motion against the CJI. This was mischievous, since Justice Chelameswar was one of the four judges (all members of the collegium) who raised a banner of revolt against the CJI in January, and hence not an uninterested party. This is nothing but a form of forum-shopping.

Second, when the Chief Justice constituted a five-judge bench headed by Justice A K Sikri to hear the case, Sibal and Prashant Bhushan withdrew their petition and wanted a copy of the administrative order under which the bench was constituted. When the bench didn’t oblige, they withdrew the petition.

Sibal went on to question the validity of the new bench, asking, “how did the petition get listed before a five-judge bench when a two-judge bench (headed by Justice Chelameswar and Justice Sanjay Kaul) told us that it would give a determination on Tuesday?” It does not seem to have struck him that Justice Chelameswar may not have wanted to queer the pitch for the CJI in case he wanted to constitute a larger bench, especially since a constitution bench had already ruled that the CJI was master of the roster.

While it is possible to claim that a five-judge bench constituted by the CJI, who is an interested party in this petition, may have been hand-picked to scuttle the case, one can also argue the other way. Since four judges of the court had risen in revolt against the CJI last January, one cannot assume that they were disinterested parties in the impeachment case against the CJI. It is logical to give the case to a bench which was more neutral.

Justice Sikri is the senior-most judge in the court after excluding the five judges of the collegium. Moreover, the five-judge bench had justices S A Bobde, N V Ramana, Arun Mishra and Adarsh Goel as its members.

This was no ordinary bench. Apart from the seniority of Justice Sikri among the judges outside the collegium, the bench also had two future chief justices of India on it – Justice Bobde, who will succeed Justice Ranjan Gogoi in November 2019, and Justice Ramana, who will succeed Bobde in April 2021, assuming the seniority rule is followed continuously.

Justice Chandrachud, who authored the Loya judgement, is also in line to become CJI in November 2024.

Consider the damage inflicted by Sibal on the credibility of the court: he has, by implication, decided that a bench with two future chief justices is biased in favour of the current CJI. Justice Gogoi, the next chief justice, needlessly brought the office into controversy by joining Justice Chelameswar in his press conference last January. Put simply, Sibal and Congress have ensured that the next three chief justices will be seen as partisan. How is this going to help the image of the judiciary? And we can add the fact that his fellow senior lawyers had questioned the impartiality of Justice Chandrachud in the Loya bench.

So we have not one, not two, not three, but four future CJIs – and the current sitting one – with question-marks over them. Most of it thanks to the Congress-linked lawyers, especially Sibal.

And it doesn’t stop here. By repeatedly petitioning Justice Chelameswar’s court – first in the Judge Loya case, and now in the impeachment case – Sibal & Co have silently eroded the credibility and impartiality of Justice Chelameswar too. If petitioners are repeatedly seeking one judge’s intervention in case, does this not smack of an agenda where specific outcomes are sought with specific judges?

Justice Chelameswar, one of the bright sparks in the judiciary, retires next month, but his reputation has not been done any good by the likes of Sibal repeatedly using him for their personal agendas.

The nation and the Congress party are ill-served by having the likes of Sibal leading them to towards embarrassments. Rahul Gandhi should show Sibal the door. Over-smart lawyers like Sibal are no good for the justice system. They have effectively brought politics into the heart of the judiciary.

The Bar Council of India needs to debar him before he does further damage.