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Recently, in an op-ed, Kapil Sibal, a member of the Rajya Sabha, drew parallels between the Emergency imposed in 1975 and the current state of affairs in India. He stated that like the Emergency era, the judiciary is once again facing a trial as fundamental rights are transgressed without a formal suspension of constitutional provisions.

In response, Hitesh Jain, Managing Partner at Parinam Law Associates has stated that Sibal's comparison of the present situation to the 1975 Emergency is a false equivalence, pointing out that the judiciary has not been a passive observer.

Highlighting Sibal's dual role as a former Congress leader and a legal practitioner, Jain suggested that his critique of the Supreme Court's verdicts is politically charged and may carry a confrontational tone.

"The claim of the “courts being on trial” is a rather sophisticated blackmailing tool that ensures that any unfavourable decision can be easily derided. It cunningly questions the independence of the judiciary, inaccurately describes the core values that the judicial system upholds and seeks orders in particular judicial proceedings," Jain wrote. 

In his op-ed, Sibal expressed concern over the present scenario alleging that institutional independence is being jeopardized, and individuals opposing government policies are made to face legal repercussions. He also indicated a selective nature of prosecutions against public servants, suggesting a partisan approach.

"These days, the fundamental features of our democracy are emasculated day in and day out. In the most crucial of moments, courts are silent. In a state of undeclared Emergency, those prosecuted are not on trial, courts are," wrote Sibal.

Jain, in his response, underscored the potential negative impact of undermining judicial independence on democracy, public trust, and the functioning of legal institutions.

"Any attempt to cower down independent decisions of the Supreme Court, such as deciding to transfer cases from one bench to another, should be viewed from ethical standards that politicians who are also lawyers should pay heed to. Sibal’s relationship with the Indian judiciary highlights the crucial need to respect the delicate balance between political advocacy and judicial independenc," Jain stated. 

He added that the senior lawyer’s stance against the Supreme Court’s verdicts has consistently drawn attention, bringing him under the spotlight for his views which are not only atypical but evidently charged with political colour.

"The threat of initiating impeachment proceedings against the then-Chief Justice of India, Dipak Misra was condemned by a cross-section of members of civil society and apparently even by Congress, leading to him withdrawing the writ petition. There is no doubt that it was perceived as an attempt to pressure the judiciary," Jain underscored. 

Jain argued that though members of civil society have every right to question and criticise institutions and seek accountability from them, wherever necessary, Sibal’s methods are far more confrontational and problematic because of the “hats” he wears.

"In the game of two hats, one must be careful to not lose both," stated Jain while concluding his opinion.