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The Jethmalani revolt

Print edition : Aug 05, 2000 T+T-

The resignation of Union Law Minister Ram Jethmalani and his public airing of allegations lead to an unseemly spat involving high constitutional functionaries and leave the Union government scurrying for cover.

"A MINISTER's resignation is not a private matter between the Prime Minister and the Minister and the whole nation is entitled to know what has been going on." Ram Jethmalani, former Union Law Minister, began his unread statement to the Rajya Sabha with these ominous words. Thwarted from placing his woes before the House to which he belongs, he chose to release his statement to the media on July 27. What set out as an explanation became effectively a settling of scores between Jethmalani and his detract ors - both real and perceived - within the judiciary and the government. Though he transgressed many a norm governing the relationship between the executive, the legislature and the judiciary, he seems more than likely to get away with it. This says some thing for the prevalent state of relations between the institutions of governance in the country.

Jethmalani's perception is that he has become the victim of judicial whim and political caprice. The event that led directly to his ouster was the hearing in the Supreme Court of a public interest petition seeking directions to the Maharashtra state gove rnment to initiate prosecution in line with the recommendations of the Srikrishna Commission of Inquiry. This hearing, he pleads, was unconnected to the legal and political position he had taken on the prosecution of Shiv Sena chieftain Bal Thackeray in a case connected to the 1993 communal violence in Mumbai.

At the hearing of the Srikrishna Commission Report case on July 21, the Supreme Court Bench consisting of Chief Justice A.S. Anand, Justice R.C. Lahoti, and Justice K.G. Balakrishnan, expressed its "distress" and "concern" at the statements of some Union Cabinet Ministers. These, they said, were at variance with what had been recorded in an affidavit filed on behalf of the Centre in the case.

What followed from the Bench were strong expressions which would have made a sensitive government protest instantly: the Bench wondered whether the concept of "collective responsibility" was not known to this government. Saying one thing to the court in an affidavit and something else for public consumption, it held, was not the way "a civilised government" should function.

The Bench was obviously referring to the statements of some Union Ministers that the Centre could intervene to stop the arrest of the Shiv Sena chief, Bal Thackeray, in a case brought by the Maharashtra State government. This was, strictly speaking, dist inct from the Srikrishna matter, since it pertained to a case registered under Section 153 of the Indian Penal Code as far back as 1993.

The more diehard of Shiv Sena partisans within the Union Cabinet had since the crisis of Thackeray's arrest began brewing, been demanding that the Central government restrain the Vilasrao Deshmukh government in Maharashtra by issuing directions or suitab le advice under Section 256 of the Constitution. Elected to the Rajya Sabha as an independent supported by the Shiv Sena, Jethmalani was strongly associated with this demand. Among the others who echoed his views were Heavy Industries Minister Manohar Jo shi of the Shiv Sena and Petroleum Minister Ram Naik of the BJP. Others such as Minister for Information Technology Pramod Mahajan and Minister for Information and Broadcasting Arun Jaitley shared Jethmalani's view that the case against Thackeray, in con nection with inflammatory writings by him in 1993 in the Sena's organ, Saamna, is barred by the statute of limitations.

Despite demands for a Central intervention, better sense prevailed with those who mattered. Guided perhaps by the legal opinion offered to him, Prime Minister Atal Behari Vajpayee decided against issuing any directions to the Maharashtra government. Inst ead, Mahajan was allowed to work out unofficially a face-saving deal that would be acceptable to both the Shiv Sena and the State government.

These publicly aired views had a bearing on the hearing of the Srikrishna matter in the Supreme Court. The Centre had stated in its affidavit that it could not intervene in the Srikrishna Commission case, as law and order is within the State government's jurisdiction. Though strictly speaking a distinct issue, the Supreme Court perhaps was justified in observing that the recent public statements of the Sena partisans in the Union Cabinet were contrary to the spirit of the affidavit filed in the Srikrish na matter. Representing the Union government, Attorney-General Soli Sorabjee convinced the Bench not to include its more severe views in its order. The Central and State governments are now obliged to file fresh affidavits before the Supreme Court within six weeks on what they propose to do with the Srikrishna Commission recommendations.

ALTHOUGH the Bench did not specifically name Jethmalani, its observations obviously rankled. A highly successful criminal lawyer before he became a Minister, he responded in pique, reminding the "learned Chief Justice" that "he was making comments about a minister who knows his law as well as anyone else". All the ingredients of an unseemly controversy were present when Sorabjee, accompanied by Jaitley, reportedly met the Prime Minister to drive home the point that Jethmalani's ouster seemed essential i n the interests of maintaining cordial relations between executive and judiciary.

Convinced of the merits of this argument, the Prime Minister asked External Affairs Minister Jaswant Singh to convey his decision to Jethmalani, who was away in Pune on the evening of July 22. The Prime Minister disagreed with Home Minister L.K. Advani, who urged him to retain Jethmalani in the Cabinet, even if in a different portfolio. The resignation, which was sent to the Prime Minister immediately, was accepted by President K.R. Narayanan on the morning of July 23.

Jethmalani soon went on the offensive. He termed his resignation as "sacking" and accused the Prime Minister of choosing to go by the advice of "a pliant Attorney-General rather than of a no-nonsense Minister of his Cabinet". He attributed his sacking to Sorabjee's failure to counter the Bench's broadsides against him during the hearing of the Srikrishna case. He charged Sorabjee with having encouraged the Bench to attack the government that had appointed him to the high office of Attorney-General.

Sorabjee lost little time in issuing his clarifications. He had merely sought to defuse the situation in the court, he claimed, by saying that he had not himself come across the statements attributed to the Ministers by the Bench. His role was to defend the government, not individual Ministers, he pointed out. He reiterated the government's position, as stated in the affidavit, that it was for the State government to take action as it deemed fit, to implement the Srikrishna Commission Report.

Whatever the immediate provocation for Jethmalani's exit from the Cabinet, it is clear that he had been contemplating it himself for some time. He said in the statement meant for the Rajya Sabha, but released finally to the media: "Let me not pretend tha t I just resigned. I was sacked. It is true I would have resigned the next day anyhow but it does not cease to be a sacking." He went on to add: "I resigned without murmur because what the Attorney-General did or did not do during the hearing of the Srik rishna case was the culmination of a series of incidents which tell their own tale and give to the last act of Sorabjee, the effect of the last straw on the camel's back."

The Sorabjee-Jethmalani standoff acutely embarrassed the government. Alarmed by Jethmalani's decision to make a statement in the Rajya Sabha, the Prime Minister's office went into damage control mode. It clarified that his exit from the Ministry was not intended as a reflection on his integrity. Somewhat mellowed by this certificate of good conduct, Jethmalani softened his attack on the Prime Minister. He claimed that his disappointments with the Prime Minister centred on the latter's inaccessibility, p erhaps caused by his busy schedule. He lamented that the Prime Minister did not bother to talk to him either before or after his resignation.

Jethmalani released his statement to the media, after the Rajya Sabha chairperson, Krishan Kant, sustained the objections raised by the Law Ministry over its contents. The 17-page statement with several annexures was referred by Krishan Kant to the gover nment, as he found many documents marked as confidential in the annexures. The government submitted its observations on July 27 and this was conveyed to Jethmalani. Jethmalani refused to remove those documents as he felt that in their absence his stateme nt would be unintelligible and futile. However, he did not share copies of these annexures with the media, either when he released his statement or later.

He dismissed the criticism voiced in the Rajya Sabha by Opposition MPs that he was guilty of violating the Official Secrets Act. He challenged the government to prosecute him if it wished. He admitted that he had made copies of his correspondence and use d them after his resignation. Later, when the government announced a legal inquiry into the leak, he scoffed. What was there to investigate, he asked, when he had admitted doing it himself. He claimed that his notions of confidentiality are different fro m that of the government, particularly in the context of the avowed objectives behind the recently-introduced Right to Information Bill.

Article 121 of the Constitution stipulates that a Judge's judicial conduct cannot be discussed in Parliament, except as part of an address to the President seeking his removal. It transpired that Jethmalani's statement explaining his resignation did prec isely this and then some more. In terms of propriety, this more than the use of confidential documents may have weighed with the Rajya Sabha chairperson when he ruled the former Law Minister's statement out of court.

ALTHOUGH his ire was in the main directed at Sorabjee, Jethmalani also reserved a few of his choicest references for the Chief Justice of India. Justice Anand, he alleged, was moved to pass severe strictures against him by certain prior events, such as a n exchange of letters over the appointment of the Chairman of the Monopolies and Restrictive Trade Practices Commission (MRTPC). The CJI had refused to swear in Jethmalani's nominee, Brij Mohan Lal, the recently retired Chief Justice of the Patna High Co urt, even though his appointment was notified by the government with the concurrence of the Prime Minister. Justice Anand pointed out that the government ought to have consulted him before selecting Lal for the post. Jethmalani argued that he was not bou nd to consult the CJI over this appointment, as Lal was a retired Judge and there was no precedent of prior consultation with the CJI in such cases. The instances cited by Justice Anand pertained to appointments to tribunals, which the MRTPC decidedly wa s not. And if in the past there had been one case of the CJI being consulted in this appointment, it established neither precedent nor convention.

Justice Anand recorded, with some asperity, that the tone adopted by the Law Minister was unwarrantedly "impertinent" and "intemperate". When he drew the attention of the Prime Minister to this matter, he received no more than a routine assurance that it did not seem prima facie to involve any impropriety, though it would be further looked into.

Jethmalani also used the Kalchakra allegations on the land dispute between Mala Anand, wife of the CJI, and the Madhya Pradesh government (see follow-up investigation in Frontline, August 4, 2000), to highlight his differences with Justice Anand. He claimed that the President had referred the matter to him for evaluation and action. He had also, he claimed, received a representation from a prominent Sarvodaya leader seeking the prosecution of the CJI. He had, he claimed, met and talked to Justice Anand about this before and had apparently been satisfied with the explanation proffered. But to avoid all misapprehensions, he had requested the CJI on July 17 to send him a note on his version of the facts in the case, which could be placed on record.

By insinuating that this case, as also the unresolved dispute over the MRTPC Chairman, may have influenced Justice Anand to rebuke him and his government from the Bench, Jethmalani is questioning his judicial conduct in precisely the manner that the Cons titution prohibits. But he made these insinuations not within Parliament, but outside. This lays him open not to the charge of constitutional impropriety, but to contempt of court proceedings. Whether these will be initiated remains, at this moment, unce rtain.

THE Attorney-General has been marked out for special attention in Jethmalani's statement. The former Law Minister alleges that Sorabjee tendered advice to the London-based business family, the Hindujas, even as the Central Bureau of Investigation (CBI) w as investigating them for involvement in the Bofors pay-offs scandal. He strongly disapproved of the fact that the government continued consulting Sorabjee on policy matters, such as telecom transactions, when he was charging exorbitant sums as legal fee s. Jethmalani also accused Sorabjee of "pliancy" when the Centre issued a notification transferring corruption cases against the All India Anna Dravida Munnetra Kazhagam (AIADMK) supremo, Jayalalitha, and others, from Special Courts to regular courts dur ing Vajpayee's previous term as Prime Minister.

Sorabjee, for his part, responded with a number of clarifications. The opinion he gave the Hindujas was in connection with their proposed power project in Andhra Pradesh and this was done only after due permission was obtained from the then Law Minister, Rangarajan Kumaramangalam. It had no connection whatsoever with the Bofors case and, in fact, had a bearing on the inflow of valuable investments into the country.

Sorabjee also refuted the suggestion that he had been charging exorbitantly for his services. In respect of the Telecom Regulatory Authority of India case in the Delhi High Court, he received only Rs.4,40,000 from the government, though the matter called for a major investment of time on his part. Under the rules, he further clarified, law officers are entitled to charge fees. He also denied that he was ever consulted in the case involving Jayalalitha, though Jethmalani still insists that he should have advised the government against plunging into a course of action that was later quashed by the Supreme Court.

JETHMALANI himself faced serious charges of impropriety in the M.S. Shoes case, which has its origins when he was Minister for Urban Development. He clarified that there was no justification for insisting that a private citizen (the promoter of M.S. Shoe s) should forfeit about Rs.40 crores on the grounds that he had failed to make a timely payment of instalments due to the Housing and Urban Development Corporation (Hudco). He claimed that when these allegations against him first surfaced, he had asked t he CBI to record a first information report (FIR) and investigate the matter. He undertook to waive all his privileges and immunities as a Minister if the CBI wished to expedite its inquiries.

The government is under pressure to give a reply to Rajya Sabha MP Kuldip Nayar, who had given a notice for a question on this issue during the Budget session. Sorabjee apparently advised the Prime Minister that Jethmalani's decision in this case raised certain questions, and that perhaps the CBI could be asked to investigate it. The Janata Party leader, Dr.Subramanian Swamy has demanded the immediate arrest and prosecution of Jethmalani in the case, now that he is no longer a Minister.

ARUN JAITLEY, the new Minister of State for Law with independent charge, expressed the government's complete disagreement with Jethmalani's "perceptions". The Prime Minister justified the removal of the recalcitrant Minister, as he had very often express ed his "personal" views on matters which did not pertain to his Ministry. Examples include Jethmalani's opposition to the Prevention of Terrorism Bill, recommended by the Law Commission, and his qualified support to the Jammu and Kashmir autonomy resolut ion. On both these issues, his publicly expressed view was at variance with the government's thinking and decision. Jethmalani, however, defended his freedom to express his views on issues over which the Cabinet had not taken a decision, and matters pert aining to any law, as his Ministry is in-charge of drafting laws.

The main Opposition, the Congress(I), appears confused about its strategy on the Jethmalani affair. In the Rajya Sabha, it focussed its attacks on Jethmalani for violating the Official Secrets Act. But in the Lok Sabha it attacked the government for not letting Jethmalani make a statement in the Upper House. The much-needed strategic correction came too later, by when the government had managed to extricate itself from a sticky situation in Parliament. The fuller ramifications of this issue, though, may only begin unfolding in the days to come.

In this din, however, the Prime Minister's theory of the need for a "harmonious relationship" between the executive and the judiciary went almost unnoticed. While the Congress(I) MP, Madhavrao Scindia, found it to be too generalised a reaction, its impor t is considered far-reaching. Observers recall that Indira Gandhi talked about a committed judiciary in the 1970s, and played havoc with the independence of the institution. What does the Prime Minister mean by a harmonious relationship? Does he imply th at he wants the judiciary not to embarrass the executive by issuing adverse judgments, or does he believe that the executive could turn a blind eye to judges' accountability? If it is just about consultation between the two wings over a minor appointment , why did he write to the CJI during Jethmalani's absence, that there was no departure from convention in the matter of appointment of Justice Lal as the MRTP Chairman? These are questions that need to be answered by the Prime Minister.