‘Zero loss’ Sibal puts Congress in awkward spot

Kapil Sibal is one of India’s more famous lawyers. His arguments in theSupreme Court carry heavy weight both with the judges on the high chairas well as lawyers on the other side of the aisle. Sibal knows the lawas good as anyone. He has won many famous court battles, as much forrich corporates as for poor, defenceless individuals.As a long-time member of the Congress Party he has been a minister inthe United Progressive Alliance (UPA) government led by Prime MinisterManmohan Singh. Unfortunately, the two hats confuse him at times andSibal the politician overshadows Sibal the lawyer and the result issomewhat bizarre and even comical. Take for instance the “zero loss’ statement by Sibal that shocked andsurprised the whole nation even as he and the Congress Party became thebutt of ridicule. After taking over as minister for Communication andInformation Technology in January 2011, Sibal called a press conferenceto contradict a report by the Comptroller and Auditor General that saidthe 2G spectrum scam under his predecessor Andimuthu Raja’s watch hadcost the country a Rs1.75tn loss. He thought he could bring out the lawyer in him and argue thegovernment’s case to convince the press. He did some quick, loudthinking, waved a few papers and declared the loss to the exchequer was“zero”! Neither the press nor the average Indian was impressed. Sibalhas never been able to live down that statement.Now Sibal has come up with another twisted logic that even his party isfinding difficult to subscribe to. He wants India to wait longer for asolution to the vexing dispute between Hindus and Muslims over the landon which stood the Babri Masjid in Ayodhya.Last week the Supreme Court began hearing the long-delayed and muchcontested case. Much blood had been spilt ever since Hindu hordesdemolished the 16th mosque built on the orders of Mughal Emperor Babur.After lengthy arguments, the Allahabad High Court ordered that the 2.77acre plot of land be split three ways and two parts be given to Hindusand one part to Muslims. But this was not acceptable to either side.Both wanted all of it. They appealed against the high court verdict andthe Supreme Court stayed the lower court order.That was in 2011. The matter had been lying dormant all this while. Withthe passage time the intensity of the litigants has also waned withsections of peace-loving Muslims advocating a compromise and askingtheir community to give up the claim as a grand gesture and in theinterest of social harmony. Five years on Bharatiya Janata Party (BJP)leader Subramanian Swamy approached the Supreme Court in February 2016with an appeal that the issue be heard without further delay. It did not make any headway. But when Swamy again approached the courtin July this year, then-chief justice J S Khehar finally agreed to hearthe matter on a day-to-day basis. Justice Khehar retired in August buthis successor Dipak Mishra had already begun preparing to hear the case.So when it finally came up, Sibal stood up to plead that the hearing bepostponed until June 2019. His argument: the BJP government at theCentre would take advantage of the case, and possibly its verdict, if itwas decided before the May 2019 Lok Sabha elections. Of course there is politics involved in the Babri Masjid case. But thesame holds good for a large number of major cases in Indian courts. Doesthat mean these cases should not be heard or decided upon because theoutcome may be cited for election campaign purposes? With 29 states andseven federally-administered territories, India is almost always onelection mode. So a case in court – there is almost always a politicallypotent case in court – can have an impact on any of these states oreven the federal government. But should that stop the case altogether?The 2G spectrum case verdict is set to be given by the special CBI courton December 21. The by-election to the R K Nagar assembly seat in TamilNadu is also set for the same day. If Raja or Kanimozhi, who bothbelong to the Dravida Munnetra Kazhagam (DMK), are found guilty, theparty may face an electoral backlash that very same day. So, can thejudge be asked defer his judgment?There are two other factors that seemed to have slipped Sibal’s sharpmind when he made his outrageous demand. When he said the hearing – andpossibly the verdict – before June 2019 could help the BJP, it wasobvious he felt the case will slip from him and will go in favour of theHindus who the BJP identifies itself more with than any other religiousgroup.It is natural to expect of the BJP to take advantage of a favourableverdict, if and when it comes. But for the lawyer opposing thepossibility of such a verdict to pre-empt it can only be termed as aless-than-intelligent move. His client must be wondering whose side thelawyer is on!Sibal’s argument also, in a sense, questions the impartiality of thehonourable judges themselves. Is it Sibal’s case that the judges shouldbe aware of the political ramifications of a case before arriving at averdict? Should they be influenced by anything – anything at all – otherthan pure legal perspective of a case? Yes, lately there have been several charges of judicial activism andoverreach even by the highest court and these have caused muchconsternation among Indians. But that in no way can be construed as theguiding principle of Indian judiciary. In fact, the bench, headed byChief Justice Mishra told Sibal: “You can argue whatever you want, wewill decide after hearing all parties. Let the hearing begin. You aremaking non-serious arguments.” All these and more must have forced the Congress Party itself to disownwhatever Sibal was saying. Senior Congress leader Jyotiraidtya Scindiatold reporters that whatever Sibal said in court was his position as alawyer and the party had nothing to do with it. Sibal found himself further alienated when Haji Meboob of the Sunni WaqfBoard, the chief litigant for Muslims, said: “Yes, Kapil Sibal is ourlawyer but he is also related to a political party. His statement in theSupreme Court yesterday was wrong... we want a solution to the issue atthe earliest.”The issue got great play in the press when Prime Minister Modi jumpedinto the fray and praised the Waqf Board for its stand. Speaking at anelection rally in Gujarat, Modi said: “Everyone wants a time-boundsolution except Congress and their leaders. The Sunni Waqf Board must becongratulated for their brave stand on the matter and disassociatingthemselves from the statement of Kapil Sibal ji.”Sibal tried to wriggle out of the situation by denying he wasrepresenting the Waqf Board, but by then the damage was done. It did notmake any impact on the general impression that the senior lawyer hadoverstepped far too much and made himself the butt of ridicule among hispeers as well as Indians at large. Obviously this was another “zeroloss” moment for Kapil Sibal. Problem is, you can add any number ofzeroes to a zero and the result is the same!