There are many unsavoury controversies surrounding Gogoi: Kapil Sibal

Top of the line legal eagle, Congress leader and former Union Minister Kapil Sibal wears many hats, adept as he is at multi-tasking. Speaking to Sandeep Bamzai, Editor in Chief, and Executive Editor Deepak Sharma of IANS TV on several contentious issues, Sibal rejected the notion of religion being used as the basis of granting Indian citizenship, debunking the very template of the controversial Citizenship Amendment Act (CAA).

Using his long years of intellectual heft sharpened on the whetstone of law and legality, he explained why Ranjan Gogoi should not have accepted a Rajya Sabha nomination. According to him, it is ex-CJI Ranjan Gogoi who himself had said that any judge who accepts a sinecure would be a blot on the institution, which means it has now got nothing to do with law but his own credibility. Excerpts:

Q. Mr Sibal, you have said that CAA does not necessarily impinge on the fundamental rights, but taken together with the NPR, the NRC is an issue?

A. No, no I never said that. This morning I explained in an article where I said that in the history of the country or the democratic world, you will find that religion has never been the basis for citizenship and this is contrary to the basic structure of the Constitution. What is the basis of granting citizenship? That you were born in India, whether Hindu, Muslim, Sikh, Christian, or that your parents were born here — they may be Hindu, Muslim whatever. Or you were residing here for 10 years as a Hindu or a Muslim or anybody. So both under the Constitution and the Citizenship Act of 1955, religion has never been the basis for grant of citizenship.

So there is a fundamental constitutional issue which is now pending in the Supreme Court. Apart from that, the NPR/NRC issue will integrate into the CAA. The NPR will be the basis and then NRC will be prepared. The NPR is going to be prepared in such a fashion that even a low level officer will be entitled to say that, “I doubt the citizenship of this particular individual.”

The Home Minister said in the Parliament that he has given an assurance. But that assurance is of no value because under Rule 44 of the rules pursuant to a notification by the government of India under the Act, the power is given to the local registrar and enumerator to doubt the citizenship of anybody.

Q. But he says there is no doubt, he keeps saying there is no doubt regarding this…

A. But Rule 44 says he can be doubted by the officer concerned, so how does his assurance take away the statutory rule, unless he abrogates it?

Q. Now many states have passed resolutions against it and the matter is pending in the Supreme Court. So where do you think this is headed, because what we have seen over time, particularly since it came into existence, is that today after so many years, India stands divided?

A. Not just divided, we are really looking at non-issues. The real issues of the country… coronavirus, massive economic downturn, the global economy will probably go into a recession. No jobs, no earnings, so no revenues for the government.

The government has to make expenditures. Where are they going to get their expenditures from? NPAs are rising so you sell your house silver. The silver of your nation. You sell them for a song, you sell them to foreign entities. So really, the East India Company is coming back in a manner by way of MNCs and big corporations buying up real estate and assets in India. So why is the nation concerned with NRC in the middle of such a crisis? I don’t understand.

Q. So would you like this to be abrogated?

A. No, the PM’s statement must be honoured that there will be no NRC and if there is no NRC, there need not be any population register to determine if a person is a citizen or not.

Q. You are a legal luminary, so do you think a Chief Justice should accept this position only four months after retirement? There is a precedent as the same government appointed Justice Sathasivam as Governor and I don’t remember CJIs being given sinecures in this manner.

A. Let us not go into the legality of it. That will be the wrong question to ask and the wrong answer for me to give. The issue is of public perception and confidence of the people in the judicial system. We have seen a lot of controversies on Ranjan Gogoi when he was the CJI, very unsavoury controversies. One day on a holiday he presides over a Supreme Court bench in respect of his own cause and then a judicial order comes where his signature is not there and he gives a defence sitting in Court No 1. It’s unheard of.

There are many other issues. He went along with three other judges and said “future generations of the country will not spare us unless we tell them that the institution is in danger”. He said if any judge accepts a position after retirement, it will be a blot on the institution. Having said all that and then accepting this, it has nothing to do with law but with credibility.

Q. You equated him with Justice Khanna…

A. I said in a tweet that we remember Justice Khanna because he dissented with the majority as life and liberty cannot be suspended. The verdict may have been legal but in public perception it was wrong. So if they say Justice Gogoi’s nomination is legal, even then in public perception it is wrong.

Q. What’s the difference between Justice Ranganath Mishra’s case and Justice Gogoi’s case?

A. Why do governments change? Because the earlier government made some mistakes, so the new government should not repeat those mistakes. It’s like blood feuds in villages are sometimes justified by some people as revenge, but it’s still a crime in the eyes of the law. So what is this argument of comparing Ranganath Mishra with Gogoi? What is wrong is wrong.