Senior Congress leader and one of India’s top lawyers Kapil Sibal, tells ThePrint’s Editor-in-Chief and Chairman Shekhar Gupta on NDTV’s weekly Walk The Talk that the CBI’s stance on 2G vindicates his position, blames former CAG Vinod Rai for sensationalising his reports, says the SC’s coal judgment responsible for power sector NPAs and insists that there are huge economic costs to ‘judicial activism’
Here is the detailed transcript, edited for clarity:
Shekhar Gupta: Hello and welcome to Walk the Talk. I am Shekhar Gupta and my guest today is somebody you have seen on Walk the Talk several times before, but for the first time in the opposition, in a multiple role. The author of a new book but also as somebody who is sharpening the knife with the electoral battle coming up. So Kapil, how does the hawa look? Now, it’s just a few months left.
Kapil Sibal: The hawa of 2014 is actually changing course. How far it will go, how strong the winds of opposition will be, only time will tell.
SG: But has it stalled or has it reversed?
KS: No it’s reversing. It’s reversing because the feeling on the ground is that too many promises were made but very little was delivered. So there is this feeling of being let down.
SG: And you think it’s strong enough? Because in India a strong incumbent is never defeated by a challenger. Strong incumbent is defeated by himself.
KS: That’s agreeable.
SG: In 1977 Mrs Gandhi defeated herself. 1989 Rajiv defeated himself. And 2004 frankly Vajpayee defeated himself although he didn’t have a majority.
KS: I agree with you. Basically you see people are looking for a sunny tomorrow. People are so poor in this country that anybody who sells them a dream they are willing to buy it. And Modi-ji sold them several dreams. And they are completely disenchanted. So the feeling on the ground is anti-him. Now whether we can actually form strategic alliances to take advantage of that feeling on the ground is the question.
SG: You said in the book also that a ‘Mahagathbandhan’ is an unlikely possibility. Why?
KS: Because when you talk of Mahagathbandhan, you assume all political parties in the region are interested in having a national footprint. That’s not true.
SG: And why should they accept you as leader anyway?
KS: That’s another issue. But the real thing is if it’s Akhilesh or it’s Mayawati, they are interested in UP; they may want to increase their share in UP. And they also want a slight footprint outside. Now in that context if we collaborate with them because we don’t have much of a choice in Uttar Pradesh, if we collaborate with them and all of us get together then of course, the result in Gorakhpur and the result in Kairana will show up in Phulpur.
SG: Then there has to be give and take. You think your party should be willing to give them a shoe in in Rajasthan, Madhya Pradesh, etc.
KS: I don’t know exactly how that will happen. But I think certainly give and take must happen. Because I think the opposition must realise that this is their last chance.
SG: Why last chance? There will be another one five years later.
KS: Well I am not too sure the way this government is going.
SG: BJP was out of power for 10 years.
KS: I know. But the kind of mindset we have in this country, who is really running this country; one and a half people are running this country.
SG: You said one and a half. Arun Shourie said one and three quarters.
KS: But the point is the way he looks at constitutional provisions, actually he has no regard for constitutional provisions.
SG: He, as in Mr Modi.
KS: I am talking about Mr Modi. Now we don’t know if he has enough numbers in 2019 what he’ll do to this great Constitution. I am little worried on that count.
SG: But I thought the Supreme Court is now fighting for the Constitution.
KS: It does occasionally.
SG: Occasionally, qualify that.
KS: I don’t want to qualify. There are some worrisome issues.
SG: With the court?
KS: with the institutions across the country.
SG: So let’s go into them. Some worrisome issues about institutions.
KS: Take for example, educational institutions; take governors. All of them are RSS people. All of them are RSS people as vice-chancellors and see the kind of statements they make and the kind of attrition that is taking place between the student community and the vice-chancellors. It’s a big problem. Look at others, say institutes of historical research, look at how IIT directors are appointed. These are some very worrisome issues. And look at the kind of people who are recommended in the high courts. And some of them are something that ought not to reach the bench.
SG: But court is the court, the government has no role in that.
KS: I know that. I am not saying that it’s not with courts. But courts have made appointments in the past also which are not entirely satisfactory. So one is a little worried.
SG: You are a little worried. But you said that if BJP gets a second term, opposition may never have a chance again. You had a second term, how did you mess up so badly?
KS: I think you know Shekhar if you really look back, they attacked us for being paralytic. We had a policy paralysis. You remember? Several times that phrase was used. That policy paralysis produced 8.2 per cent growth which this country has never seen before. Now we don’t have any policy paralysis today because we have a very strong leader. And what is the GDP today. Less than 7.3 per cent. So I think that we misunderstand. We are taken up by the confluence of interests that took place at that point of time that brought down the UPA.
SG: No look, for UPA to go down, for Congress to go to 44, people had to be really angry with you. Because people are not stupid.
KS: I think the communications revolution played a very important role there, which was not so before. And I think Modi took advantage of it.
SG: And you missed out on that?
KS: And we missed out on that. Entirely.
SG: Is it because you were too old as a party.
KS: No, I think that we were not privy to what technology can do for politics.
SG: What did Modi use technology to do for politics that you did not?
KS: Well, first of all the kind of rallies he had, the personnel, the cameras that he set up, the way in which every channel showed his speeches, every channel saw the Congress party being attacked, the Anna Hazare movement. People who were opportunistic riding on the shoulders of that movement saying that we are social reformers, we are not politicians. The gathering on the Ram Leela ground. The kind of feast that was going on there 24 hours a day. People were being brought in, who was feeding them, what were the forces behind them?
SG: So what’s your take on that? Who was feeding them? What were the forces behind them?
KS: I think obviously there were some forces behind it. I can’t make allegations directly against those forces. But obviously there was a confluence of interests.
SG: You don’t want to make direct allegations against the RSS. When did that stop a Congressman?
KS: It’s not a question of direct allegations. The point is, and that’s why I wrote this book. The reason why I wrote it was it is one thing to make an allegation, it is another thing to support it with data. Every statement of mine here is supported with data.
SG: Give us some example.
KS: Well, loss of jobs. I have supported it in the IT sector. How many jobs have been lost?What happened to start-ups in this country after this government came to power? The statements made by various BJP ministers which are inconsistent with the constitutional values.
SG: Why do you think you lost the narrative so badly in UPA-II?
KS: I think we lost it because it started with a CAG report. One lakh seventy six thousand crores. All of us could not stand up together to defend that position.
SG: But you made that famous statement of zero loss.
KS: I made it and I stood by it. And I have succeeded. My statement has proved to be true.
SG: How have you succeeded?
KS: Because the CBI doesn’t even allege loss in its prosecution. And the allegation of corruption has been set at nought. And the court has been saying. I was waiting day in and day out for the CBI to produce some evidence. So obviously the allegations had no foundation to stand on.
SG: Anyway that case is going to appeal. But do you think that no corruption took place in that spectrum allocation.
KS: Well actually it’s impossible for anybody to say that governments are completely free of corruption. If Modiji talks about his government that it’s corruption free, well it’s another jumla. Right?
SG: But do you think there was corruption in 2G allocation or not?
KS: I don’t think so.
SG: And you have seen it this (show of hand) closely?
KS: Yes, I have. There was no corruption. This kind of transferring of money had no relationship to the allocation of licences.
SG: People coming up with precise amounts in their bank drafts?
KS: That has been explained in the judgment itself. That it was actually the policy of the government, not of the minister.
SG: First come, first serve?
KS: Not just first come, first serve. The positioning…it was not Raja’s decision. It’s all set out in the judgment.
SG: Because people like Arun Shourie say that ‘first come first serve’ was not a crime, but Raja did not follow first come, first serve.
KS: No, that’s not true. It has been explained in the judgment. And I think you should read it to understand how and the judge said that I have looked meticulously at the files. And none of these decisions were decisions of Raja. And everything was conveyed to the government.
SG: But it did look like the government was fighting with itself. The new finance minister, the Prime Minister’s office, the earlier finance minister.
KS: To this extent I agree that we were not able to stand up together to fight the battle. And the same thing happened in coal. And I think the cancellation of coal licences is the genesis of NPAs in the banks.
SG: Well today you have a situation where instead of collecting those three lakh crores in auction you are importing coal. NTPC is importing coal.
KS: Absolutely, and at very high prices. Because Coal India doesn’t have the capacity to meet the demand. And coal licences were cancelled. Therefore, power plants which depend on that coal could not get that coal, could not pay the loans. They became NPAs. And this is because of agitational posture of BJP and the CAG’s report. And the cancellation of the licences by the court.
SG: You think that judgment was flawed?
KS: Absolutely. I have said so in the book as well. I have said that in matters of economics the courts should stay their hands. And especially in passing omnibus judgments like this….
SG: Going back to 97. Coal.
KS: Yes. You can’t do that. That means every government was at fault. Now an investor who comes to India who invests huge amounts of money in the cement or steel or power, how is he at fault? And why should he be penalised? So I think the court was not articulate enough to devise a solution which would not hurt the economy. And that’s why we have landed where we have.
SG: So is there an economic cost to judicial activism?
KS: Huge. And very very hurtful to the future of India. So I love the courts dealing with issues of environment, of dealing with the poor and the marginalised sector who can’t really approach courts. But on issues like these, it’s very dangerous territory.
SG: Did you ever debate this with the judges? You are an eminent lawyer.
KS: I got no opportunity.
SG: Afterwards?
KS: Afterwards yes. I mentioned this fact in a case that I argued with respect to the telecom sector. And otherwise also, as and when I have got an opportunity, I have mentioned this to the court that this is something that you should be careful about.
SG: But this government claimed initially that they have…money for spectrum auction, coal mine auction.
KS: Nobody has the money. The telecom sector which was prosperous and which had about 12 to 14 players is reduced to three. Market caps are down. Profitability is, in fact, there is no profitability. And the sector is in debt of 5 lakh crores.
SG: In fact, that can be the next NPA crisis.
KS: And see what has happened to the power sector. The IBC cannot find resolutions. Why? Because there are no buyers.
SG: Because there is no fuel. And because debt costs have become so high.
KS: So in the average the banks are taking a hair cut of 65 per cent in the non-power sector.
SG: That’s not called a haircut. That’s called a mundan.
KS: And in the power sector 85 per cent.
SG: And whom do you blame for that? Do you blame judges or do you blame the BJP government?
KS: No, I blame the irresponsible opposition and the CAG for putting us in this situation. And of course the judgment which didn’t carefully consider the consequences.
SG: You appointed that CAG.
KS: Galtiyan ho jaati hain (Mistakes happen).
SG: Do you have a message for that CAG?
KS: The message is that when a bureaucrat in government takes up a job, he should work within the parameters of his responsibility. If he wants to make a splash, then he should not be a bureaucrat. He should come out and be in politics. Or maybe become an NGO.
SG: And how has it done since the change of government?
KS: Cricket is where it was. Cricket has not improved.
SG: Cricket has gotten worse, much worse.
KS: Much worse. And I think even that court judgment on cricket is something that…a politician is fine to hold the post of a minister after or above 75. Prime Ministers have been above 75. But you can’t be a member of the board if you are above 70.
SG: But it’s OK if you are a retired judge or a retired civil servant.
KS: That’s all fine. What’s the logic of this?
SG: Logic is might is right. Because I think that cricket benches had hundred plus sitting star wonders, three or four CJs.
So Mr Rai, he became an icon at that point. He is still an icon but people think that he busted big corruption.
KS: I don’t know. You just heard of kind of betting evidence that is coming out in cricket. Corruption is something that is endemic. Vo hi chor hai jo pakda gaya.
SG: Do you then live with it?
KS: No, of course, we must fight it. But we must fight it institutionally. We must not fight it by making allegations without evidence.
SG: So you think that 1.76 lakh crore was rubbish?
KS: Absolute rubbish. And also 1.8, coal was much more than that.
SG: Much more than that…3 lakh crore
KS: That was reduced later.
SG: And in between also came up something… which turned out to be no scam at all
Sibal: Absolutely. And then in between you had Ramdev talking about black money.
SG: Your government also did really nutty things. You went down on your knees to Ramdev at Delhi airport.
KS: I said that was a mistake. No doubt about that.
SG: And who was responsible for that mistake?
KS: I don’t know that. I didn’t take those decisions. I was just part of the delegation.
SG: But how did you feel going for that delegation. Did you feel humiliated? Did you feel proud that you were solving a problem?
KS: No I think we were a bit naive. And our democratic impulse led us to believe that if we reach out, we will perhaps find a solution.
SG: But who was Baba Ramdev?
KS: And who was this committee?
SG: And who was this committee which was changing the Constitution!
KS: Exactly. Therefore, I think that at some stage our democratic impulse moved us away from the realpolitik behind these movements. There was a mismatch there.
SG: So going to the committee for drafting that Lokpal law was a mistake?
KS: Nobody was interested in Lokpal. See last four and a half years, nobody has talked about it. And none of the states in which BJP is in power they have a Lokayukta bill of that nature. So this was dishonest. They were not interested. They wanted to use it as a stick to beat up the government.
SG: But did the government panic? Did you guys lose your nerve?
KS: It did not panic. But the government certainly did not know solutions or have any solutions to deal with the issue. You may call it panic but the tsunami of opposition was so strong that we couldn’t deal with it. That’s the reality.
SG: So you just got pushed aside.
KS: Just got pushed aside. But the reality of what we did for the people of this country is now being realised.
SG: But you also had institutions like NAC which were constantly saying what’s wrong with the government.
KS: I can tell you this Shekhar that in the 10 years that I was minister in various departments I never got a phone call.
SG: No you didn’t. But they did undermine your government.
KS: I am not privy to any of that.
SG: So how will you go back now and tell the people of India that look you held us guilty of the crimes we did not commit.
KS: I think it’s much more than that. We will tell the people that he said that in 60 months he will do what Congress could not do in 60 years. And he has done it. Because Congress could not bring the price of petrol to 86 rupees. He has done it. The price of dal never reached 200.
SG: Well he attacked you on oil prices, so you will do that now.
KS: It’s the people’s issue. Chappan inch ki chhati aur athavan ka rupaiyaa, kahan gayi vo chhati aur kahan gaya rupaiyaa.
SG: Kya baat hai, you got your slogan sorted out.
And your newest avatar. I know that you have a flourishing legal practice. Perhaps the most flourishing in India. But what’s this new avatar in our business. You are now going to compete with us in the media. You are setting up a TV channel.
KS: I think we should have an alternative narrative in this country. And I think that you are providing that in your small little way. Others also without having the finances to have a channel are providing that. I think we need alternate channels.
SG: So is that the reason you are setting one up?
KS: I am trying to. It’s an attempt.
SG: It’s a TV channel or is it more than that?
KS: Let’s see. It’s work in progress.
SG: But it’s media? Media is a very small business. I think your income of two cases will fund the channel.
KS: No it’s not a question of… Actually media is a very expensive business.
And we are not aligned to any political party here.
SG: Nobody is going to buy it because you are from Congress.
KS: Whether they buy it or not the content will be …
SG: So you don’t want it to be a Congress mouthpiece.
KS: Not at all. I’m quite clear about it.
SG: (Like)…Rajiv Chandrasekar… say when setting up Republic TV.
Sibal: Unlike that. Because they are playing footsie with the powers that be. I am not going to do that.
SG: I am not complaining. I think it’s a good idea when the media business is not doing so well, rich people should come and invest in the media.
KS: I hope so.
SG: Having said that, corruption we talked about. Now you are involved in dealing with many corruption cases against your colleagues. Is there any case that you worry about? Chidambaram?
KS: Not at all. Because I have seen the documents, I have seen the allegations. There is nothing to worry about. Either…Chidambaram or ….Karti, there is no case.
SG: You think it’s all trumped up?
KS: I have asked him please show one document. They say we have several bank accounts. When you open a bank account you have to have a signature.
SG: Well they say billions of dollars.
KS: You have to have a signature. Show one document. You say I have several properties all over the world. OK! Then show which property. Just one. And I said if you show just one bank account, one property we will withdraw from the case. No evidence so far. It is to build up an atmosphere where you can actually vilify a person without providing any evidence. This is what they did prior to 2014 against us also. Remember the allegations they made. Ultimately what happened in court? Who compromised?
SG: But I do remember that Arvind Kejriwal gave a list of people he called corrupt.
KS: Exactly. So when we filed criminal defamation cases what happened? Cases were withdrawn.
SG: You, Salman Khurshid, Chidambaram, Dr Manmohan Singh.
KS: Arun Jaitley.
SG: Pranab Mukherjee. All except Kamal Nath
KS: So I don’t know about Kamal Nath.
SG: So all the rest got withdrawn. Do you think something like that is being done?
And what about the other cases? The National Herald case?
KS: There is no case at all. Zero case.
SG: But Dr Subramanian Swamy says…
KS: Dr Subramanian Swamy is a super lawyer without real foundation of jurisprudential knowledge.
SG: But he has got some five or six million jury members in his Twitter following.
KS: That of course he will have. See look at what he has said. That so many accounts abroad, nothing has come to light till date. These are all allegations. And we challenge them. What’s the corruption that has taken place? This is a Section 25 company where nobody can get a single pie.
SG: So you are not worried about that also?
KS: Not at all.
SG: The latest one? Robert Vadra-Hooda?
KS: I am yet to see the evidence but in the high court matter that I am arguing there in the commission that was set up, Dhingra Commission, again after Khattar government came to power, their own secretary opposed the paragraph, opposed what was being done. And he didn’t listen to his own secretary. And he had an audit para without the reply of the government. These are very serious things.
SG: So if there is no change next year, I mean a change will be a very big thing. But if there is no change, do you see yourself becoming busier defending your colleague in the following five years?
KS: Look I have been busy all my life. I think those cases will be all over because there’s nothing in those cases. It’s just a matter of time.
SG: You don’t see more coming up?
KS: I don’t think so.
SG: Besides starting your own TV channel, what’s your own political future now? Are you going to contest again in Chandni Chowk?
KS: Yes I will. I don’t know where I’ll contest. Chandni Chowk certainly is my constituency but we will decide.
SG: And will you now worry about Aam Aadmi Party in Delhi?
KS: Well Aam Aadmi Party is a key player in Delhi but Aam Aadmi Party also has been exposed. But I still do believe that they have some support, no doubt about it. So it’s going to be a three-cornered contest.
SG: But would you think of adjustments with AAP in Delhi?
KS: I don’t know about that. Party has to decide that.
SG: You have a personal view on that?
KS: I have but I’ll share it with you privately.
SG: Let me say that the personal view could be — why fight with everybody.
KS: I don’t know about that. I am not going to give any hints to you about what I think personally.
SG: Kapil, I think if you had any free time from all your cases you produced a good result from that. Going ahead you are not going to have any, at least till the next summer.
KS: No no, but I’ll be writing. And you know very well that I’m now contributing hugely to media by writing a lot of articles. I’ll continue to do that.