Though set to lose CJI impeachment case, Kapil Sibal won't stop trying

It takes a certain kind of lawyer to take on the top echelons of the judiciary. Kapil Sibal likes fine art, writes poetry and is a music aficionado. But he doesn’t turn away from butting heads as well. 

Sibal has been a lawyer for more than 40 years now and still remembers the day he fought — and lost — his first case. He got his first brief, an election petition from a politician from Meham in Haryana. The politician had contested the election and had won it, switching sides after winning — but the election was set aside on eight counts. One of them was that he had bribed one of the candidates into withdrawing from the contest. A few weeks earlier, Justice P N Bhagwati (then chief justice) had passed an order that if a bribe were offered by one candidate to another then the election would be held null and void. Sibal was asked why the petition should even be heard. He replied that the judgment was wrong: and argued that his client may have offered a bribe but not  as a candidate: for one becomes a candidate only after one’s nomination is found valid. The Supreme Court heard the case for 20 days. Bhagwati wrote an opinion, although Sibal lost the case. Later, he figured out why: one of the judges was retiring after hearing this case and while the other two (it was a three-judge bench) disagreed with his opinion, they did not want to oppose him in his last case. Today, Sibal’s client is a lawyer. And Sibal is a politician ready to move the wheels to impeach the Chief Justice of India.

Between then and now, Sibal has represented many politicians: Jayalalithaa, in the Coal Import case; K Karunakaran, Bhajan Lal, the Akali Dal (in the last instance in Sukhbir Badal’s controversial hotel purchase case) and Lalu Prasad. Eventually, it struck him that instead of merely defending politicians, he could actually become one himself. 

It was thanks to Lalu Prasad that Sibal became a Rajya Sabha MP in the 1990s, when Prasad directed party MLAs in the Bihar Assembly to transfer their surplus votes to Sibal, a Congress candidate, in return for fighting his case in the fodder scam. Additional Solicitor General of India between December 1989 and 1990, Sibal defended Supreme Court judge V Ramaswamy during his impeachment in Parliament. His performance caught the eye of then Prime Minister PV Narasimha Rao who offered him the South Delhi seat in the 1996 Lok Sabha elections. Sibal lost by a margin of over 100,000 votes. The offer from Lalu Prasad for the Rajya Sabha came in 1998. By then, he had realised he enjoyed politics and decided to contest the Lok Sabha election from Chandni Chowk, Delhi, in 2004, which he won. Later, he entered the Rajya Sabha, and currently represents Uttar Pradesh in the upper house.

Sibal is broadly left of centre, and is in the Congress because he believes all Indians must contest the Hindu nation theory. He feels that the Supreme Court judgment justifying suspension of Articles 21 and 21 relating to personal liberty — which was the legal bedrock for the imposition of the Emergency — was flawed. 

During the Manmohan Singh government from 2004 to 2014, Sibal occupied a number of important ministries. He began with science and technology, human resources development, communications and information technology and then, additionally, law.

The latter job he took on with some reluctance. Having made powerful enemies during his legal career, he knew he and his sons, also lawyers, would be fair game. The baiting began with critics alleging a conflict of interest, after his decision as minister to endorse conciliation with a company, Vodafone, that paid no tax on a deal that was operationalised in India. 

Sibal was being practical: he conceded that although the company took advantage of a grey area in the law, India did not have a no-tax regime. But there is another facet — legal processes and procedures should not be an impediment to economic growth, but must fuel it. 

But this cut little ice with critics who charged that he has supported conciliation because his sons were lawyers for Vodafone. He contested this documentarily — his sons returned all telecom company briefs the day he became telecom minister.

In the current controversy with which Sibal has become identified (because the Congress party is internally divided between those who feel the impeachment of the Chief Justice of India is right and those who feel it isn’t) he is clear that even if the impeachment doesn’t go through, it must be filed. The case is now, ironically, before the Supreme Court after Vice President Venkaiah Naidu declined to admit it in the Rajya Sabha.

First, in the case of Prasad Education Trust, Sibal minces no words. The case merits an enquiry at the very least, especially relating to the role of the Chief Justice of India, he says. The background is that a sitting judge of the high court is being prosecuted and along with him, a retired judge of the Odisha High Court and two others who conspired to bribe the judge. Who else does the conspiracy involve? That’s what Sibal wants the government to find out. Was this related to several unusual steps taken by the highest court of the land, authorised by India’s most senior judge? The impeachment motion also says a false affidavit was filed to obtain allotment of land. “The fact that the CJI surrendered the plot only in 2012, when elevated to the SC, also does not need any further proof,” Sibal says.

This is one case Kapil Sibal is sure to lose. But that’s not going to stop him from trying.