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The Rediff Special/ Indira Jaising

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

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The nation is witnessing, what appears to be a war between former law minister Ram Jethmalani and Attorney General Soli Sorabjee on the one hand, and Jethmalani and the Chief Justice of India on the other. When seeking to place certain correspondence between him and the Chief Justice with his statement to the Rajya Sabha, Jethmalani was prevented from doing so by the RS secretariat on the ground that they were 'secret'. He then held a press conference, made several allegations against Sorabjee and made the documents public.

This war has consequences of far reaching importance for the nation. Not only does it upset the balance of power between the executive and the judiciary, and prove that the balance is indeed very delicate and fragile, it also brings down high constitutional functionaries like the attorney general, the Chief Justice and the former law minister from their exalted pedestals and proves them all to be victims of their personal interests.

Jethmalani has alleged that the attorney general compromised his position in office by advising the Hindujas in a matter which was in conflict with the government. Sorabjee admits he did indeed give advice to the Hindujas on a counter guarantee for a power project that they were setting up in Andhra Pradesh. He obviously did so for an undisclosed fee.

However, he claims there was no conflict of interest as his opinion was not against the interest of the Government of India. He also claims he had the written permission of the then law minister, P R Kumaramangalam. The issue which arises for consideration is: Should the attorney general, who is a constitutional functionary, indulge in private practice? I think not. It is unethical and will definitely lead to conflict of interest issues.

The fact he wrote to the law minister for permission and obtained it, does not make the position any better. He should never have asked for permission in the first place and the then law minister, Kumaramangalam, who gave the permission, should never have given it. He put himself in a position where he can be accused of compromising the interests of the government by advising the Hindujas who are accused of receiving kickbacks in the Bofors case.

People of his eminence accept the attorney general's post to serve the nation, not to profit from their office. When they give opinions, they not only act as lawyers but lend legitimacy of their exalted office to the opinion, an office which is not for sale. This unethical practice must stop forthwith. The attorney general in asking for permission and the then law minister Kumaramangalam, in granting permission, have both acted improperly and compromised themselves.

The granting of permission only indicates that there had been a very cozy relationship between the attorney general and the law minister, where neither is willing to overturn the decisions of the other. It is this cozy relationship that has traditionally existed, that has now broken down.

The other allegation against him is that he made a huge amount of money in the telecom case. The facts relating to the telecom case are also curious. In January 1999, the government sought the attorney general's opinion on the legality of the proposed National Telecom Policy 1999. The policy would enable the telecommunication sector to 'migrate' from the regime of fixed license fees to a revenue sharing arrangement.

This would result in the loss of several crore rupees to the government. Sorabjee gave a categorical opinion in which he stated that the proposed deal being offered to the telecom sector was illegal and could not be justified on the ground that the industry was unable to pay its dues. He gave an opinion against introduction of the policy.

Less than six month later, he changed his opinion and gave the exact opposite opinion, stating that the proposal was in order and the policy was constitutionally valid. His second opinion was relied upon by the industry in support of their case. When the policy was challenged in the Delhi high court, he appeared in court on the government's behalf and defended it. It is in this case, that he is alleged to have charged a high fee.

He now claims the fees he charges were a 'fraction' of what he would charge commercially. While we do not know what Sorabjee charges commercially, the comparison is surely misplaced. He was not acting as a commercial lawyer, but defending government policy in his capacity as attorney general. There seem to be no rules about what law officers should get paid or in any event if there are such rules, exceptions to the rule seem to be the norm.

Jethmalani is right when he created his own definition of what is confidential and what is not. Information available in this country is available only through 'leaks'. Information is confidential, when the government wants to hide something and 'leaked' when it is helpful to them. So, Jethmalani does feel peeved when he is prevented from making a statement in the Rajya Sabha on the ground that the information he seeks to reveal is confidential.

There is indeed nothing confidential about anything anymore. We now know the documents he sought to reveal relate to some correspondence between him and the President and him and the Chief Justice of India. In his capacity as law minister, he had received a petition forwarded to him by the President, in which serious allegations were made against the Chief Justice of India and his wife and mother-in-law.

These allegations related to the manner in which litigation over a large piece of land in MP was conducted. In order to frame his response, Jethmalani had sought clarification from the Chief Justice of India. A few days later, the Chief Justice, while hearing a public interest petition over the implementation of the Srikrishna Commission, remarked that ministers of the central government were speaking in different voices and had forgotten the concept of collective responsibility.

While the affidavit filed in court by the central government took the stand that law and order was a state subject and the Centre would not intervene in the matter, Jethmalani was publicly advocating that the Centre should intervene to prevent Bal Thackeray's arrest. Jethmalani obviously believes the Chief Justice made the remarks against him because he had sought clarifications over the land deal.

That can be the only reason why he now chooses to reveal that he had sought clarifications from the Chief Justice a few days before the remarks that led to his resignation. Jethmalani also believes he was not adequately defended by the attorney general in court.

Jethmalani has, however, not addressed the question of his involvement in the reopening of M S Shoes case by which the company stood to gain substantially, after a competent court had already rejected its claim to prime land in Delhi.

He also had no explanation for taking a public stand on Thackeray's arrest and the central government's involvement, contrary to the government's stand itself. He made statements on the legality of the proposed arrest, forgetting that he was the law minister. He acted like a nominee of the Shiv Sena defending Thackeray's private interest, rather than the law minister of the nation.

The factors that led to Jethmalani's resignation are perhaps different from those that he outlines.

Be that as it may, his resignation and subsequent revelations he has made provide us with an opportunity to look at the larger picture. What we are seeing is not a conflict between the executive and the judiciary as it is made out to be. Sorabjee has raised the question, why did the former law minister not make the revelations about the attorney general earlier? Indeed why not?

We seem to get our information about issues that concern the nation only when people fall out with each other. It is surely time to look more closely at the functioning of the entire judicial system, which includes the judiciary, the attorney general and the law ministry. Traditionally, the relationship between the three has been close. As a consequence, many issues of great public importance have been kept away from national debate.

A positive fallout of the current controversy, is that it will force a debate on the functioning of the entire legal system. Why are attorney generals allowed to hold briefs for private industry? Why do law ministers play ball with attorney generals and liberally allow them to appear for private business houses? One must remember that the then law minister Kumaramangalam was far junior to the attorney general and could have felt compelled to grant the request. Why is there no public mechanism through with complaints against the judiciary can be handled? Why must we get information of a public nature only through 'leaks'? If the fallout of this episode leads to an inquiry into this, it can at least be elevated from being a personal fight between individuals to being issues of national importance.

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