NEW DELHI: Senior advocate and Rajya Sabha MP Kapil Sibal on Monday expressed his concern over the state of the judiciary saying that it has "let us down" and "I hang my head in shame" for what has happened in the recent past.
Sibal in an interview with PTI said that free speech, in recent years the interpretation given to it by the Supreme Court has unfortunately not allowed the space that is constitutionally permissible to it.
He said that the BJP- led government at the Centre is a "de facto emergency" in place with "throttling" of institutions.
He alleged that the rule of law is "infringed'' daily.
Sibal also said the present dispensation wants an 'Opposition-mukt Bharat', not just a 'Congress-mukt Bharat'.
When asked about the arrest of Mohammad Zubair, the co-founder of Alt News, Sibal said that the more worrying larger issue was that some members of the judiciary have "let us down".
"Some members of the institution (judiciary) of which I have been a part for 50 years, have let us down. I hang my head in shame that this has happened. When the judiciary turns a blind eye to ex-facie violations of the rule of law one wonders why an institution designed to protect the rule of law allows the rule of law to be infringed with open eyes," Sibal told PTI over the phone from the UK.
Talking about Zubair's arrest and how the Delhi court denied him bail, he said that for a tweet four years ago without any communal outcome, it is "unthinkable" for that person to have been arrested.
"More than that, now having realised that the arrest cannot possibly be sustained, the investigating agency is looking for other matters which have nothing to do with the original arrest. Clearly what we are witnessing is a mala fide arrest and a subsequent fishing inquiry," Sibal said.
What investigative agencies do now is to arrest a person and then investigate what he might have violated.
For that they are seeking access to other documents and coming back to court on other charges in an attempt to deny bail to the accused, he charged.
When asked about the criticism from some parts of the Supreme Court verdict in the Zakia Jafri case in which the Supreme Court upheld the SIT's clean chit against then Gujarat Chief Minister Narendra Modi and 63 others in the 2002 communal riots, Sibal said that he could not respond to it as he was not Jafri's lawyer.
"But I can say this to you that we have seen in the recent past, judges rendering findings on matters that were not argued before them, judges rendering findings in matters which are not appealed against and some judges disregarding patent illegalities and upholding executive actions that are indefensible," Sibal said.
"I don't want to make a comment on any particular case but as I said having been a part of this institution, for what has happened in the recent past, I hang my head in shame," he said.
At the UN Human Rights office expressing concern over the arrest of Zubair and activist-lawyer Teesta Setalvad, Sibal said "undoubtedly" India's image was being affected internationally but asserted that people must rely on courts in India to protect human rights.
"Our people in the profession, people who are part of the institution, including judges who are wedded to the rule of law, it is time for all of us to speak frankly, openly and without fear about the state of affairs prevailing today," he said.
He spoke about the provocative remarks made by Nupur Sharma's controversial remarks on Prophet Mohammad and said this is the result of the culture of intolerance and hatred that has crept into our national discourse.
"All this is happening, why, because hate has become an instrument for electoral gain. If hate becomes part of a political strategy to divide society to win elections then you will have many such instances including the one that just happened in Udaipur where a tailor was beheaded. These unacceptable inhuman and ghastly acts are the results of an agenda which targets communities; an agenda which divides rather than unites," he said.
On the BJP's recent critical comments on the Emergency imposed in 1975 by the then Indira Gandhi government, Sibal said the Emergency was declared under powers that were provided for in the Constitution.
"That particular act of declaration of emergency was unfortunately held to be valid by the Supreme Court. This only shows that courts are not infallible. We would like to forget that 'black day' when that judgement was rendered," said the former Union minister, who recently quit Congress.
He added that the situation today is worse as without the authority of law, there is a "de facto emergency".
"What we are witnessing is the de facto throttling of all institutions which are designed under the Constitution to protect it. With the executive capturing almost all such institutions what prevails is a de facto emergency wherein the rule of law is infringed on a daily basis," he said.
Sibal, who is set to start a fresh term after being elected unopposed to Rajya Sabha from Uttar Pradesh as an Independent with the support of the Samajwadi Party, asserted that the opposition has no choice but to stand united.
"You are seeing that playing out ever since a duly elected government was toppled in Uttarakhand. Thereafter, we saw it toppled in Arunachal Pradesh, the absent majority was installed in Goa and Manipur, again governments toppled in Karnataka, Madhya Pradesh, and now Maharashtra," he said.
Elected governments are being toppled by subverting electoral verdicts and by the misuse of the Tenth Schedule by foul means, he said.
This means that this present government doesn't just want a "Congress-mukt Bharat but an Opposition-mukt Bharat", Sibal asserted.
With PTI inputs