Kapil Sibal, Ram Mandir and Sunni Waqf Board : Understanding the controversy

The past couple of days have seen a controversy rage on mainstream media regarding the appearance of Senior Advocate Kapil Sibal in the Ram Mandir-Babri Masjid case in the Supreme Court.

While the main media usually stays disconnected with such niceties of law even when reporting judicial decisions, this particular issue caught the attention of all and sundry, since the case involves stakes of enormous proportions.

So, what is the controversy all about?

How it began

It all began on December 5, the day the Ram Mandir-Babri case was heard. Senior Advocate Kapil Sibal submitted during the hearing that the case should be deferred till after the completion of 2019 Lok Sabha elections.

The Supreme Court turned down the same and posted the matter for hearing on February 8, 2018.

The matter should have ended there. But it did not.

The Sunni Waqf Board, which is one of the appellants in the matter, said that it is in favour of an early resolution of the case, and that Sibal was not given any instruction by the Waqf Board to make such a submission.

Sibal also came on record to state that he was not appearing for Sunni Waqf Board in the matter.

The political detractors of Sibal lapped up the opportunity, alleging how both he and the Congress party did not want a resolution of the matter.

With Sibal denying that he had appeared for Sunni Waqf Board, the eyes obviously fell on the copy of the order passed by the Supreme Court on December 5.

The order

The case number of the appeal filed by Sunni Waqf Board is Civil Appeal 4192/2011.

At the second page of the order, in the record of proceedings, Kapil Sibal’s name is recorded against four Civil Appeals, one of which is Civil Appeal 4192/2011.

However, on page seven of the order, the Court has clearly recorded that Sibal appeared for appellants in Civil Appeals 2894/2011 (Mohammad Hashim (Dead) v. Mahant Suresh Das) and 7226/2011 (Mohammad Hashim (Dead) v. Bhagwan Shri Ram Virajman).

Thus, the speaking part of order does not have Sibal’s name as a lawyer for the Sunni Waqf Board.

The Appearance Slip

The appearance slip in Civil Appeal 4192/2011, (which was procured by some journalists today), which has been signed by Advocate-on-Record Syed Shahid Hussain Rizvi, mentions Sibal’s name.

The initial part of the record of proceedings in the order sheet, which lists the lawyers involved is, in fact, a reflection of the data given by AoRs through appearance slips.

However, the Court’s order does not record Sibal as having appeared in the said Civil Appeal.

In such a scenario, what is the fact and who is responsible for such incongruence?

Role of the Senior Advocate

The peculiar institution of Senior Advocate in India means that a Senior Advocate, in theory, is not engaged by a litigant but by the Advocate-on-Record or the Briefing Counsel. A Senior Advocate is not bound by a Vakalatnama and his relation vis-a-vis the litigant, is largely informal.

Hence, when Sibal denies having appeared for a party and there is a contradiction in the order recorded by the Court regarding the same, the AoR will actually have to answer the question as to why Sibal’s name was put in the appearance slip.

This is because the AoR should have alerted the Court that Sibal was appearing in Civil Appeal 4192/2011 too, when the order was being dictated by the Bench.

In the absence of such an objection by the AoR, the Senior Advocate’s word will have to prevail, unless the AoR can prove to the contrary.

The problem of multiple parties and counsel

Such cases involving multiple parties and a battery of Senior Advocates is not new. In many such cases, Senior Advocates simply stand up and address the court, and judges and reporters are left in lurch to find out whom the Senior Counsel was representing.

It is interesting to recollect a recent episode in another celebrated case in which a certain Senior Advocate had taken objection when he was asked by the judge which party he was representing.

Justice RK Agarwal of Supreme Court makes it a point to ask every arguing counsel which litigant she is representing before the lawyer commences arguments.

Following the same as a practice, especially in cases where there are multiple parties with more than one Senior Advocate, will largely address the issue.

Otherwise, a controversy like this will leave the AoR hunting for the only evidence he might have of having engaged the Senior counsel – the proof of billing by the concerned Senior Counsel.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets at @legaljournalist. 

Image Courtesy: India Today