History Is Repeating Itself, Albeit in a Different Guise, He Warns

Newsreel Asia Insight #57
Nov. 28, 2023

In an op-ed, Kapil Sibal, a senior lawyer and member of the Rajya Sabha, makes a bold assertion: India is experiencing an undeclared emergency. His claim is grounded in his observations of the current political and judicial landscape.

Sibal draws parallels between today’s situation and the National Emergency of 1975-77 declared by Indira Gandhi, of the Congress party that Sibal belonged to until 2022. In the op-ed, published in New Indian Express on Nov. 27, he recalls how fundamental rights were suspended, and the judiciary, particularly the Supreme Court, failed to protect these liberties.

Sibal, a member of the upper House as an independent but backed by the Samajwadi Party, lauds Justice H.R. Khanna for his dissenting stance in those dark times. The essence of his argument lies in the comparison of the past and present scenarios, suggesting that history, in a way, is repeating itself, albeit in a different guise.

Today, Sibal argues, India faces a similar crisis. “What we are witnessing today is an undeclared Emergency where without suspending Article 226 and Article 21 of the Constitution, the fundamental rights of citizens are being transgressed with impunity through the misuse of the law enforcement machinery. Like in 1975, it is not the accused but the courts which are on trial,” he writes.

Sibal, who served as a minister under Prime Minister Manmohan Singh, points out the alarming trend of “jail not bail” in cases involving journalists, students and activists critical of the government. This, he suggests, is a direct attack on the freedom of expression and the right to dissent.

Recently, a former Supreme Court judge, Justice Madan B. Lokur, also said in a media interview that a disconcerting trend in bail proceedings was casting a shadow over the Indian judiciary. “Generally speaking, the courts seem to have forgotten the basic principles of grant or refusal of bail. Nowadays, if a person is arrested, you can be rest assured that he will be in prison for a few months at least,” PTI quoted him as saying.

The denial of bail, as per Justice Lokur, often follows a pattern – an arrest, followed by a prolonged investigation, incomplete charge sheets and a lack of essential documents. This process, seemingly routine, raises questions about the underlying motives and the role of investigative agencies. And the judiciary appears to be unaware or unresponsive to the manipulations of investigative agencies.

Sibal carefully avoids discussing specific sub-judice cases in his op-ed but highlights the overarching theme of liberty being denied. He raises concerns about the misuse of draconian laws like the Unlawful Activities (Prevention) Act and the Gangsters Act, which are, in his view, being used to target dissenters. The plight of students and journalists, languishing in jails for opposing government policies, is particularly distressing, he says.

The op-ed also touches upon the selective prosecution of public servants. Sibal observes a pattern where those affiliated with or sympathetic to the ruling party are seldom subjected to the same rigorous legal scrutiny as their counterparts in the opposition. This selective application of law, he implies, undermines the very foundation of justice and equality.

Sibal’s critique extends to the judiciary’s role in this scenario. He acknowledges the judiciary’s commitment to upholding the rule of law but points out inconsistencies in its approach. He cites instances where the Supreme Court’s handling of defection cases varied significantly, leading to prolonged detentions without trial for some, while others enjoyed swift legal proceedings.

Moreover, Sibal expresses concern over the transfer of sensitive cases to different benches. “The other key concern is the manner in which live yet sensitive cases are transferred and shifted to a bench which did not hear the matter earlier. I do not wish to question the right of the Chief Justice of the Supreme Court or of a high court to exercise their discretion in the manner they so wish, but there is an established practice that the bench which issues notice in the matter should hear the matter till fruition unless the judge concerned retires in the meantime or recuses himself,” he writes.

The crux of Sibal’s argument is that the fundamental tenets of democracy in India are being undermined.

Sibal’s op-ed urges the judiciary and the public to recognise and address the erosion of democratic values and civil liberties in India, highlighting the need for a bipartisan approach to safeguarding democracy.