Babri Masjid Case: Here’s What Kapil Sibal Said in Court

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Sibal had expressed fear that the matter, if allowed to go on in the run-up to the elections, would lead to an everyday media controversy that would be used to polarise voters.

Nizam Pasha

Truth, the everyday casualty

THE film Shool contained this sequence where a politician is objecting to a hydro-electric power project being constructed in his constituency on the ground that if you take electric current out of water, the ‘current less / lifeless’ water that remains after taking out electricity from it will be no use to the farmers and will not sustain crop growth. The scientific explanations are too long drawn to hold people’s attention and the voices trying to explain the science are any way drowned by the rhetoric and the slogan-shouting that takes over. This sequence is fictional no more and has become our everyday reality.

The times we live in and the pliable nature of truth today are best illustrated by the nationwide protests by Hindu organisations, in general, and Rajput groups in particular against Padmavati, a film that no one has seen, on the grounds that it insults a Rajput queen by showing that she had some kind of inclination towards a Muslim ruler. Liberal commentators cried themselves hoarse that the queen was actually a fictional character in a ballad written by a Muslim poet, that even in the ballad she was a Sinhala princess and so was Sri Lankan if you think about it, that even if she was for real, if you actually watch the film, you will find that it celebrates her life and glorifies Rajput valour. But their voices were drowned out in the slogan-shouting and the cries for heads to roll. Truth is the least consequential thing in this whole drama.

The media works overtime to create a new truth that either serves the power holders or that suits market demand. And as Noam Chomsky says in Manufacturing Consent, if the story collapses of its own burden of fabrications, the media will quietly fold their tents and move on to another topic. Nobody is even trying to say that there is actually nothing objectionable about a Hindu woman having an inclination towards a Muslim man, assuming for a moment that all the rhetoric is true. Nobody seriously hopes to sell that idea anymore.

What actually happened

The various appeals challenging the judgement of the Allahabad High Court dated September 30, 2010 awarding 1/3rd of the disputed site where the Babri Masjid stood from 1528 to 1992 to each of Ram Lala Virajmaan, Nirmohi Akhara and the Muslim parties have been pending before the Supreme Court since 2011. BJP leader Subramanian Swamy mentioned the matters twice since his party came to power at the Centre in 2014, asking for an early hearing. He took a chance with Chief Justice T H Thakur in February 2016 and then again in March 2017 with Chief Justice J S Khehar. On both occasions, the court refused to entertain him saying he is not a party to the dispute and is no one to ask for an early hearing. Swamy took a chance again in July 2017 after Justice Khehar retired and found favour with the next Chief Justice Dipak Misra. Justice Misra put the matter up for hearing on August 11, 2017. On that date, the counsel for the Hindu parties, including the Hindu Mahasabha, insisted that he was ready to argue the matter the same day.

It was, however, pointed out that the documents and record had not yet been translated and were not before the court so the matter could not be argued. Justice Misra ordered translations to be done on an urgent basis and listed the matter on December 5, 2017 for hearing. Was it a coincidence that this turned out to be three days before polling was to begin in the Gujarat elections? One cannot say and it would be contemptuous to speculate. It was well known even on that day that this was the eve of the anniversary of the demolition of the Babri Masjid, a date on which police and the security establishment is put on high alert every year since 1992. Was the choice of a sensitive date an oversight on the part of the court? Again, one cannot say and it would be contemptuous to speculate. All we know is that Kapil Sibal, appearing for some Muslim parties, strongly urged the court to reconsider the date and take up the matter in January instead, but the court paid no heed.

Swamy immediately shot off a letter to Prime Minister Narendra Modi saying he had achieved in his purpose of getting the matter listed and now it was up to the Prime Minister to ensure that the election promise of constructing a Ram temple was fulfilled.

And so the matter came up for hearing on December 5. The translations and filing of record was still not complete but Justice Misra insisted that the hearing commence immediately, record or no record. The counsel for the Muslim parties indicated that they could not argue in the absence of the complete record and given the fact that tens of thousands of pages had been supplied just days before the hearing, some as recently as the night before.

But Justice Misra, refusing to be deterred, called upon the counsel for the Hindu Mahasabha to open his case. At this, all counsel for the Muslim side stood up and said that if the matter was to go on in this inexplicable and unjustifiable haste, they wished to be excused and the hearing could go on without them. Somewhat shaken (but never stirred because, you know, that may be contemptuous), Justice Misra agreed to adjourn the matter for a few days till the complete record was before the court. At this juncture, Sibal urged the court to adjourn the hearing till July 2019.

Without reference to the general elections due in May 2019 or to the upcoming elections to the Legislative Assemblies of Karnataka, Madhya Pradesh, Rajasthan, Chhattisgarh and four states in the Northeast in the intervening period, he made the following submission:

Seeing the volume of the record, this matter will go on for a long time. Every day, arguments of counsel and observations of the judges will be reported polarising people and creating a communally charged atmosphere in the country. The way in which this matter has come up for hearing leaves much to be desired. The court should not allow itself to be used by political interests for their political agenda and should defer the hearing till July 2019. (This is not quoted but has been paraphrased from memory.)

He also pointed out that once the matter starts, it will take several months to conclude indicating (without actually saying it) that if allowed to commence now, it will get over close to the next general elections.

This plea was supported by the senior counsel for all Muslim parties present as well as the senior counsel representing the Nirmohi Akhara, who said that they are the original litigants, and are strongly opposed to political interests such as the Hindu Mahasabha that have gotten involved in this litigation relatively recently politicising the issue. The plea was strenuously opposed by the counsel for the Hindu Mahasabha and acceding to their opposition, the court listed the matter for hearing on February 8, 2018 recording that no adjournment will be granted on that date.

Despite pleas to pass an order simply adjourning the matter to the said date, Justice Misra insisted on passing a detailed order recording a blow by blow account of who said what throwing in some phrases like “shocking”, “surprising”, “medieval passion” and quite inexplicably “Shavian preface” of his own. Without going into what this reference must have done to George Bernard Shaw in his grave, lest it be found to be contemptuous, it does deserve to be said that the Chief Justice was perhaps not right in turning a blind…cough…Nelson’s eye to the sensitivity of the case and instead giving in to the temptation of chronicling the occurrences in court in all their juicy detail. He even recorded the fact that a prayer was made not to record the entire exchange between court and counsel in such detail and concluded, “If we permit ourselves to say so, the submission was shocking and surprising and when we proceeded to record so, prayer was made not to do so and we, accepting the fervent request made by the counsel, refrain from recording so.”

I do wonder if the law of contempt allows us to speculate as to what parallel dimension allows for the request for not recording the exchange to be accepted but for the order to still record not only the exchange but also the request made and the restraint exercised. I am reminded of an incident back when I was in school where a student was hauled up by a teacher who overheard him using the f-word in class and was called to the front of the classroom to apologise and promise to mend his ways. The errant student stood before the class and with poorly feigned innocence said, “I am sorry I said f*** in class. I promise I will never say f*** in class again.” Needless to say, this sojourn down memory lane into my school days is purely by way of an aside and is not in any way a comment on the apex court of our great country.

What the nation wanted to know

They say the proof of the pudding is in the eating. Kapil Sibal had expressed an apprehension that the matter, if allowed to go on in the run-up to the elections, would lead to an everyday media controversy that would be used to polarise voters. As irony died of asphyxiation at a hospital in Gorakhpur, Sibal’s request for adjournment itself was immediately picked up by the Prime Minister and the BJP president, who during election rallies in Gujarat, attributed the submissions made in course of an exchange between court and counsel to the Congress to which Sibal belongs and accused the Congress of trying to politicise the issue of the Ram Mandir. (Because apparently, politicisation of the Ram Mandir hadn’t happened simply by the Babri Masjid being demolished or by L K Advani’s Rath Yatra that left thousands dead in its wake or by the BJP putting construction of the Ram Mandir on its election manifesto and fighting every election on that plank. It actually happened only when Kapil Sibal asked for an adjournment.)

Then Haji Mehboob, one of the several Muslim plaintiffs who are in appeal before the Supreme Court, said he disagreed with Kapil Sibal and wanted an early resolution to the case. The Prime Minister and the BJP president immediately rushed to praise the Sunni Waqf Board (which had nothing to do with Haji Mehboob) for distancing itself from Sibal’s stand and blamed the Congress for it all. Kapil Sibal was accused of acting without instructions of his client. Sibal issued a clarification and stated that Haji Mehboob was not a member of the Sunni Waqf Board and the Prime Minister should have got his facts right. He went on to say that in any event, he did not represent the Sunni Waqf Board. This last addition was a tactical error, not because it wasn’t true, but because it was irrelevant to the conversation. Haji Mehboob was neither his client nor a member of the Sunni Waqf Board. So the Prime Minister’s accusation that Kapil Sibal was acting without instructions and his assertion that the Sunni Waqf Board disagreed with Sibal were both wrong. There the matter should have ended.

But now, suddenly, the issue became about whether Kapil Sibal represented the Sunni Waqf Board in court or not. It didn’t matter that the lawyers of the Sunni Waqf Board themselves gave a statement that they fully supported the stand taken by Sibal. No coverage was given to the fact that the All India Muslim Personal Law Board, which is coordinating this litigation, issued a formal press release stating that it supports the request for adjournment and that the request was made by the counsel on instructions from their respective clients. Zafaryab Jilani, the convener of the Babri Masjid Action Committee, who has been conducting this litigation right from the civil court, held a press conference in Lucknow to issue the clarification, “Whatever Sibal said was after consulting us and we 100 per cent stand by his remarks”, but this found no space on prime time TV.

The lawyer briefing Sibal cried himself hoarse that Sibal was briefed by him to appear on behalf of Mohd. Iqbal Ansari, another individual plaintiff, and he had instructed Sibal to have the matter adjourned to 2019. Even Haji Mehboob resiled from his statement and said that he agreed with Kapil Sibal’s stand in Supreme Court, but he lost his relevance the moment he said so.

The entire conversation suddenly became about whether Kapil Sibal appeared for the Sunni Waqf Board or not. The BJP spokesperson tweeted pictures of the appearance slip given by one of the lawyers for the Sunni Waqf Board with Kapil Sibal’s name on it creating a storm in the media. An appearance slip is a slip of paper on which the clerk of the advocate on record writes down the names of all the lawyers appearing in a particular matter and hands over to the court master.

It’s supposed to be signed by the advocate on record herself/himself but in the ordinary course, lawyers have neither time nor headspace to fill in little forms giving lists of names for each matter they appear in and it’s the clerks who fill, sign and submit the slips on their own. Of course, caught with their back to the wall, an advocate would have to take ownership of the slip and can’t say that they have never so much as set their eyes on the slip before.

And so statements and counter statements began to fly thick and fast, press conferences were held all around, all prime-time television anchors were asking the same question – did Kapil Sibal represent the Sunni Waqf Board? ‘Who did Kapil Sibal actually appear for’ became the biggest question since ‘Sonam Gupta bewafa kyon hai’.

What the nation should really be asking

No questions were asked as to how the BJP spokesperson managed to take a photograph of the court’s file. Under the Supreme Court Rules, inspection of the Court file is granted only in accordance with inspection procedure and taking photographs is strictly prohibited. And more importantly, no questions were asked about how any of this was at all relevant.

Since Haji Mehboob was not a member of the Sunni Waqf Board and did not speak for them, the Prime Minister’s facts were actually incorrect. Since the Sunni Waqf Board and lawyers for all other Muslim parties came forward and clarified that they wanted the matter adjourned, it was no longer in doubt that Sibal had acted on instructions. Just like ‘Sonam Gupta bewafa kyon hai’, no one stopped to ask what turned on this.

But the most important question that arose from all this, now that it has been demonstrated without any shadow of doubt what exactly happens when the Babri Masjid-Ram Janmabhoomi matter is taken up by the Supreme Court close to elections, is – should not the Supreme Court reconsider its decision to hear this case in the run-up to the 2019 general elections? One administrative hearing for fixing a date had the nation’s knickers in a bind for nearly a week and daggers were drawn all around.

A year-long hearing with every question asked by the court being reported as “Supreme Court pulls up/slams/doubts…” and every sneeze of the counsel making headlines as “Counsel for (so and so) explodes” that culminates in a decision just before the general election is not what the doctor ordered. Or to put it another way, that’s just what the doctor ordered for parties that fight elections on this plank. The Supreme Court should refuse to allow itself to be used for political purposes and allay the apprehensions that have arisen out of the manner in which the hearing has come about.

These are troubled times and fingers less wary than the author’s of falling foul of the law of contempt have already been raised recently questioning the integrity of some individuals that form part of this august institution. The court must tread carefully, if only because justice must not only be done, it must be seen to be done. Iustitia non sit, videndum esse. (Note: This has been translated using Google translate only because everything sounds more like a legal principle, if you say it in Latin).

PS: The author represents no one in this case at present because the clerk forgot to put his name on the appearance slip. So technically, no disclaimer of bias needs to be given for now. Oddly enough, there is no storm about this on TV. I strongly urge our news channels to take up the ineptitude of lawyers’ clerks as a burning national issue.

(Nizam Pasha is an advocate in the Supreme Court. Reproduced from newslaundry.com)

 

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