Senior Advocate Kapil Sibal on Saturday observed that "oppressive" laws like the Prevention of Money Laundering Act (PMLA) leave very little scope for judicial interference, which in turn has diminished the value of judicial precedents in India.
"There is no such thing as judicial precedents at all. It has been overtaken by statutory law which gives no space to the judiciary, because of the stringent conditions of those laws," Sibal commented.
He also noted that only constitutional courts such as the Supreme Court and High Courts can quash such "oppressive" laws, which takes time and results in little space for subordinate court judges (trial court judges) to make independent decisions.
Sibal explained by recounting that after the PMLA's validity was upheld by the Supreme Court in the Vijay Madanal Choudhary case, it became very difficult for trial court judges to grant bail to those accused under the stringent anti-money laundering law.
"The law is the precedent. If you uphold the law, it becomes the precedent. The magistrate has no space to differ. He cannot exercise his judicial judgment, he can’t exercise it because the (under the PMLA) accused does not know what is against him," Sibal recounted.
He went on to note that it was only after the Supreme Court's subsequent ruling in Pankaj Pansal, when the Court said that a PMLA accused must be given the grounds of his arrest in writing, that trial courts were in a better position to exercise their discretion to grant bail.
"(Supreme Court) Judges realised that this kind of unreasonable law, even though we cannot strike it down because it has been upheld (in Vijay Madanlal case) - but we must find a way for the ordinary citizen to get relief. The only way to get relief is to find some kind of exception which has a constitutional basis. (After Pankaj Bansal judgment) then started the process of releasing people on bail," Sibal said.
He added that it may take a long time before such corrective measures can be undertaken by Constitutional courts.
"But that (interpretations of PMLA which Supreme Court Benches have done) can't be done by the magistrate. Magistrate has no right to start interpreting the Constitution and say this is constitutional valid or not, he has no such power. The High Courts have such power, but as I said in the earlier part of the talk, High Courts are reluctant to exercise that power for reasons we all know. So it comes to the Supreme Court, but it takes years for the Supreme Court to find ways to navigate through this fabric of injustice which is part of our legal structure today. And this is how we destroy freedoms in our country," Sibal said.
He also briefly mentioned how the PMLA review case has been deferred for over two years now.
"We have been crying hoarse, month after month, after the Supreme Court has said this matter (judgment upholding PMLA in Madanlal case) should be reviewed. We have been requesting the Supreme Court, put up the matter for disposal. Two years have passed. Now, of course, it is listed on the 27th and 28th of November," Sibal observed.
In this context, he urged the judiciary to be more proactive in protecting the rights of the citizenry.
"Oppressive laws are being implemented. What is precedent? There is no such thing as precedent. Each judge decides based on his or her understanding of the law, whether s/he should interpret the law one way or the other. The only precedent is the precedent of the individual Bench that decides a particular case in the way that it decides - that is the only precedent. That is it. Who suffers? Ordinary people ... It is time for the judiciary to realise, that it's time for them to stand up and to ensure that what our forefathers gave us need to be zealously protected. These are rights that they gave to the citizens of our country. They can't be wasted in this fashion. It's time for citizens to speak up, it's time for lawyers to speak up and it's time for the judges to stand up," Sibal said.
The senior lawyer and parliament member made the observation while giving a lecture at the Sikkim Judicial Academy.
In his address, he also noted that a related issue that plagues the system today is the polyvocal nature of the Supreme Court and the unpredictability of judgments.
"I don't mean it in a derogatory sense, but there is very little stability and very little predictability in our system today. We don't know what the judge is going to do. ... So precedent has very little value within a statutory based system. The law declared by the Supreme Court is binding on everybody - but what is the Supreme Court today? The Supreme Court does not sit as one court, it sits in Benches. ... One judgment (by one Bench of the Supreme Court) can say one thing and another judgment can say quite the opposite. So which judgment are you to follow? ... So there is an element of lack of predictability and lack of stability and that is one very major problem we face in our judicial system," Sibal said.
Among other issues, Sibal also touched upon colonial remnants in the criminal justice system of India. He noted that India is one of the few legal systems where the police arrest first before investigating the allegation or complaint.
"In the developed world, the allegation is first investigated and then the arrest takes place. In our world, the arrest comes first and the investigation takes place later. Which country (apart from India) has police remand? It's the colonial past which has given the police this power," he said.
He added that a revamp of the Indian criminal law is required, while briefly mentioning that the Bharatiya Nyay Sanhita, 2023, which replaced the colonial-era Indian Penal Code, has only made things worse.
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