Bureau Prayagraj/ New Delhi. Supreme Court Bar Association (SCBA) president and senior Kapil Sibal on Saturday said that the decisions of highly liberal judges often change after becoming the Chief Justice of the High Court. Sibal also gave the big reason behind this. He said that this happens because the Chief Justice of the High Court aspires to become a judge of the Supreme Court. Sibal said that appointments made by the collegium are not necessarily on the basis of merit. And this is where the problem arises, he said. (High Court) The Chief Justice gives respect to the judges of the Supreme Court. And this is reflected in his orders, I am sad to say.
The senior lawyer said that extremely liberal judges who become Chief Justice suddenly find – at least it seems to me – that the tone of their judgments is being changed very subtly. Because this is human weakness. There can be no debate on whether you want to go to the Supreme Court. Sibal was speaking at a lecture organized by the Sikkim Judicial Academy at the Auditorium Hall. During this, he also commented on the collegium system adopted for the appointment of judges in the higher judiciary.
He said that the thought process behind creating the collegium system was good. He said that the problem at that time was that lawyers and judges were running to politicians for their appointments. They used to worship the people in power. So instead of doing this, let us adopt a collegium system because it is the judges of the Supreme Court and High Courts who know best which lawyers are worthy of being elevated to the bench. That was the idea behind it and it was a good idea.
However, after this the problem arose that lawyers have now started running to the judges for their appointment. Similarly, he said that High Court judges also approach Supreme Court judges for their promotions. He said that when Chief Justices are appointed across the country, what depends on which Chief Justice will go to the Supreme Court? What are those criteria? Naturally, no one knows what those criteria are.
Sibal also said that when the Chief Justice of a particular High Court is elevated to the apex court, he naturally recommends the name of someone else. This is what happens in reality. We should talk openly about it. Unless we talk about it honestly, we can't change the system. There is no point in suppressing this matter.
Sibal clarified that in this process the High Court judges become subordinate to the Supreme Court, even though the constitutional framework does not permit it. He said that High Court judges look towards the Supreme Court to move forward in the High Court. The judges of the subordinate court and the judiciary there look to the High Court for going to the High Court. of.
Sibal was addressing the audience in the context of judicial precedents and the principle of stare decisis. He said that precedents provide a degree of stability and predictability, while allowing limited flexibility. In this context he talked about PMLA and its provisions. He said: “What is 'process established by law'? Is the PMLA process established by law? PMLA is law and if you remember, in the Maneka Gandhi judgment Justice Bhagwati had said: 'The procedure should be fair, the substantive law should be fair.' ,
Sibal examined some provisions of PMLA. For example Section 45 of PMLA. He said: “You have Section 45 of the PMLA, which says that when an application is made to the court for bail of any person prosecuted under the PMLA, notice must be given to the public prosecutor. Unless the court finds that If the person is not guilty of the crime, see a scenario – I have been charged and arrested as per the ECIR, which has been registered by the ED. , ECIR is not in the public domain, so I don't know why I was arrested.
I was arrested and produced before the magistrate, I don't know what the charges are against me. I go to the magistrate, a remand application is filed by the public prosecutor which he hands over to the judge. I do not have access to the remand application. I don't know what the case is against me. Section 45 says that unless I am able to prove that I am not guilty of the offence, I cannot be granted bail.” He said: “Where is the process to show that I am not guilty of the offence? I am not aware of the charges, I do not have remand, I will get remand at a time when I cannot discuss with a lawyer, I have not been told any grounds for arrest.
Article 21 says that the procedure must be fair. But is this the proper procedure? The Supreme Court has upheld this practice but is it a precedent? Yes. Precedent in the context of law. The letter of the law cannot be a precedent. The letter of the law tells you that you cannot get bail unless you are satisfied that you are not guilty of the offence.” Citing Section 19 of the PMLA, he said: “Interestingly, the PMLA Section 19 states that officers can make an arrest when they have material that you are guilty of an offence. Look at this gap. The officer arresting me must have material to prove that I am guilty.
Only then can they arrest me. But the material which says that I am guilty of the crime is not given to me. That material is sent to the magistrate in a sealed envelope. This is the law.” Sibal said that law and justice are not the same thing and PMLA has nothing to do with justice. Since it has been upheld by the Supreme Court, it is the law. He then asked whether it The law is procedurally fair. Sibal said: “Under the CrPC, the Supreme Court has said in various judgments that this is the procedure established by law. In other words, when you have an FIR, within 24 hours you have to produce the accused before a magistrate which also applies to PMLA…remand before a magistrate.
I have been given the FIR, I can read it as it is in the public domain due to the announcement of the Supreme Court judgement. Then there are procedures which say that after 14 days of remand I should be produced. There is a daily diary under CrPC in which whatever the investigating officer does should be recorded. Which witness is examined under Section 161 is recorded in the daily diary. After completion of investigation, either closure report or final report on which cognizance is taken and notice is sent to the accused. It is this process that is absent in the PMLA.”
He also explained how investigating officers have been given wide discretion under the PMLA. Sibal said: “Under the PMLA, let's say I have committed an offense described in the schedule of the PMLA. Section 420 (cheating) is a scheduled offence. Suppose I have defrauded someone, if it was under IPC, then what will be the consequences if he proceeds under PMLA? kind of discretion, so I don't need to tell you that.”
Sibal also raised questions on the substantive law under PMLA. He gave examples of 'proceeds of crime' and 'money laundering' and explained how the Supreme Court has treated two different crimes as one. He said: “I gave you examples of Rs 1 crore, proceeds of crime. Crime Income is a “presumptive crime”, but there is a separate crime of money laundering. For example, if you have dirty clothes, which you have washed, and you have put them into the legal system. You have laundered it. Now the judgment says that there is no difference between the proceeds of crime and money laundering. Every person can be prosecuted for money laundering even if there is something to show for it. Even if he has committed a crime of Rs 10 thousand or Rs 1 crore, I have not done anything about it. “Who committed fraud and I kept it at home and I haven't washed it. I will still be prosecuted for money laundering.”
He said that when such laws are in existence, subordinate courts cannot do anything unless constitutional courts like the High Court and the Supreme Court challenge their constitutional validity. Sibal said that as far as the Supreme Court is concerned, Vijay After Madanlal Chaudhary's case, the court realized how people are kept in jail under PMLA. After that, they got some relief in the decision given in Pankaj Bansal case, because the basis of arrest will have to be informed in writing by the accused and in the second decision it was said that even after being in jail for a long time, if the investigating authorities do not find the accused. If yes then he can be released on bail.
Sibal said that in cases where he cannot repeal the law, he creates an exception through the constitutional basis of Article 21, so that common citizens can get relief. He concluded by saying that through the Money Bill The issue of whether amendments can be brought in PMLA is still pending in the Supreme Court.
Justice S. Citing the case of Justice Muralidhar and Justice Akhil Kureshi, Sibal pointed out how subordinate judges remain in fear because if they do not take decisions in a particular way, they may be transferred or may not be promoted. The conclusion from the lecture is that the crux of the matter is this: concentration of power breeds arbitrariness.
He said: “As long as you have the center of power vested in a special institution called the Subordinate Court, you will not get the independence that we are talking about. We must move away from centralized systems of control. “
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