NEWSLINKS
US EDITION
COLUMNISTS
DIARY
SPECIALS
INTERVIEWS
CAPITAL BUZZ
REDIFF POLL
DEAR REDIFF
THE STATES
ELECTIONS
ARCHIVES

Search Rediff

Rediff Shopping

Shop & gift from thousands of products!   Books     Music       Apparel   Jewellery   Flowers   More..      Safe Shopping

The Rediff Special/ Prashant Bhushan

What led to Jethmalani's resignation?

The Jethmalani affair is rather unfortunate and sordid. The real issues which Ram Jethmalani has raised are that there was no justification for the Chief Justice to have made those remarks against him in court during the hearing of the Srikrishna Commission case. He said that firstly, his remarks were about a particular "offence" committed by Bal Thackeray. All Jethmalani had said was that the case was time-barred and that Thackeray's prosecution at this point of time would be illegal. Jethmalani also claims he did not make any remark in general on the Srikrishna Commission report which is a matter pending before the Supreme Court.

Secondly, even otherwise the law is not such that if a matter is pending in court then nobody can comment on it. The law in fact, very clearly laid down by the House of Lords in The Times newspaper case and followed subsequently in a large number of cases, states that in a matter involving public interest, merely because a case is pending in court does not bar public discussion on that matter. If that was the case, then the public would not be able to discuss anything because virtually every issue is in court.

Therefore, the court has clearly held that the public interest involved in having a free and frank discussion on the issues of public interest far outweighs any possible prejudice that may be caused to pending legal proceedings on matters involving public interest. So therefore, on that ground too, the Chief Justice was not justified in remarking that because this matter is pending before the court, no minister can comment on the issue.

Regarding the issue of collective responsibility, since it is true that the government and the ministers do have a collective responsibility, the government cannot take two different stands through two different ministers. But it is also true that every minister is an individual and has the right to express his personal views on a matter. It is not as if two different affidavits were being filed in court. Attorney General Soli Sorabjee rightly said in court that the government's stand is stated in the affidavit and that the government stands by that view.

But Jethmalani's complaint against Sorabjee is that when the CJI was making remarks against him, the attorney general should have either defended him and pointed out that the minister is entitled to express his personal views in the matter or he should have clarified that the mere pendancy of the matter in court does not deter public discussion on it or at least he should have told the CJI to let him get back to Jethmalani. Jethmalani's grouse is that the CJI's remarks were unjustified and that Sorabjee did not defend him. It was on this basis that his resignation was sought.

The Conflict

There was a correspondence which took place a few days preceding this incident in court. The correspondence was between Jethmalani and the CJI and related to two matters. One was Justice B M Lal's appointment as chairman of the MRTP Commission. The second was about a case involving the CJI's wife. It concerns some land dispute in Madhya Pradesh. Jethmalani quotes this as the reason why the CJI was unhappy with him. He hints in his statements that the CJI's remarks in court during the hearing of the Srikrishna Commission case should be viewed in that light.

Regarding Sorabjee, Jethmalani says he had long standing problems with him on a large number of issues and perhaps that could explain why Sorabjee did not defend him. And why he probably advised the government that Jethmalani's continuance would cause a rift between the executive and the judiciary.

Jethmalani's statement only gives the background under which his resignation was sought. As mentioned earlier, one difference he had with the CJI was related to the MRTP Commission chairman's appointment. The issue was whether or not the CJI was entitled to be consulted. The minister thought that under the Constitution or under any law, he is not required to consult the CJI. And the CJI put forward the argument that since it is a judicial appointment, he should have been consulted. This is certainly an important issue. Whatever may be the legal requirement, ideally, when it comes to any high level judicial appointment, the CJI or the state CJs should be consulted by the government.

The Sensitive Issue

The issue involving land in the name of the CJI's wife has been covered in the magazine, Frontline and the facts as mentioned therein are a little disconcerting. There are several issues which arise: How and why were these judgments given in the courts of Madhya Pradesh? How and why were the Special Leave Petitions of the Supreme Court withdrawn? These are certainly questions which need some answers from the concerned persons namely, the chief minister of Madhya Pradesh who apparently ordered the withdrawal of the SLPs.

In view of the fact that the state government earlier considered its case to be very good, the public would surely like to know the facts. These are matters of public interest since they involve the functioning of a high level judiciary and executive. Which is why there should be complete transparency when it comes to such matters.

The Committee on Judicial Accountability will look into this land matter to see whether anything can be or should be done by it in this regard. In a matter involving a sitting judge or the Chief Justice, there are not many lawyers who are willing to even discuss the issue, let alone take them up.

The Conflict Of Interest

Another issue involved was that of the attorney general giving his opinion to a private party. This was a matter involving the issue of a counter guarantee being given by the Government of India to the Hinduja Power Corporation. Clearly, one view could have been that the Government of India should not give such a counter guarantee. If the AG were asked for his views, he could well have taken the stand that the government should not give a counter guarantee which would be opposed to the Hinduja Power Corporation's interests .

There was a potential source of conflict between the interests of the Government of India and those of the Hindujas. Merely because the AG's opinion was that the government should give the guarantee does not mean that there was no potential conflict.

The Official Secrets Act

Another issue which has been raised is regarding the so-called leakage of certain confidential documents which were in Jethmalani's possession. I, for one, don't think there is anything improper or wrong in Jethmalani releasing these documents. I certainly don't think that the release of these documents violate the Official Secrets Act. Because the nature of these documents is such that they certainly don't contain anything, the disclosure of which would be harmful to either the nation or to public interest.

It is ironical the government which claims that it is committed to the right to information should still take refuge in the Official Secrets Act and has ordered an investigation into the leakage of these documents.

It is also rather strange that the government should order an investigation into the leakage of these documents when Jethmalani openly admits to having had copies of the said documents and to having released them. The Official Secrets Act, as it stands today, says that no public servant can release any document or information which comes to his possession in his official capacity.

So technically, in that sense, what Jethmalani has done is in violation of the Official Secrets Act. But the Supreme Court has said in the S P Gupta case as well as in the Raj Narain case that the right to information is a Fundamental Right arising from Article 19-1(a) of the Constitution which gives us the freedom of speech and expression.

And therefore that will override the Official Secrets Act except to the extent that the Official Secrets Act prohibits the disclosure of documents which relate to national security or India's relation with other countries or the disclosure of which will harm public interest. Other than this, all other information with public servants should be made available to the public. After all, people are entitled to see what their public servants, including high functionaries like law ministers, chief justices and attorney generals are up to.

Technically, if the government goes by the Official Secrets Act, they can probably prosecute Jethmalani. But then the question will arise that whether the literal understanding of the Official Secrets Act is consistent with the Supreme Court's judgments where they have held that the right to information is a Fundamental Right.

The government has tried to divert the issue which Jethmalani's statement provokes by going into the business of the Official Secrets Act etc. when it is in reality a side issue.

ALSO SEE:
The Jethmalani affair: Time to look more closely at the judicial system

The Rediff Specials

Tell us what you think of this feature