The alacrity with which the Chief Justice of India, Mr AS Anand, has now cleared the appointment of Mr Justice BM Lal as chairman of the Monopolies and Restrictive Trade Practices Commission, would indicate that he wishes to put the unseemly controversy with the former law minister Mr Ram Jethmalani behind him. In doing so, the Chief Justice is upholding the norms and status of his high constitutional office. The nation is grateful that he has spared us the spectacle of our most revered institution, the Supreme Court, being dragged into a virtual street brawl.
It needs, however, to be said that while some of the reasons (meritorious or otherwise) for the CJI-Law Minister face-off have become public knowledge on account of the dust raised in the aftermath of Mr Ram Jethmalani’s exit from the Union Cabinet, an unwitting slur against another former judge has gone unnoticed. Mr Justice BM Lal is an upright and distinguished judge, not given to tailoring his judgments in order to maintain harmonious relations with the executive of the day. His judgement against a powerful politician for actions taken while in office was cogent, pithy, and based on sound knowledge of law.
The fact that the judgment was set aside by a superior court is not necessarily a reflection on its intrinsic merit. It is, therefore, unfortunate that selective reports casting aspersions on Mr Lal’s legal competence have surfaced in the Press during the course of the Jethmalani fracas. These are wholly unwarranted. Hence, whatever Mr Anand’s reservations about the manner of Mr Lal’s selection as the MRTPC chairman, he has done well to clear the way for the latter’s assumption of office at the earliest. It is now for the new law minister, Mr Arun Jaitley, to clear the air about Mr Lal.
At the same time it needs to be said in fairness that the crisis was mismanaged at several points. One fully sympathizes with the Prime Minster for having to deal with this storm in a teacup at a time when his Government is engaged with truly pressing national commitments such as Kashmir, and the deftness with which he defused the issue in Parliament can only be appreciated. Yet, there can be no denying that the general public impression is that his troubleshooters and media managers fell far short of the mark during the entire episode, and left it to the Prime Minister’s personal charisma to do a containment job for them.
To begin with, there is widespread feeling of a lack of even-handedness in dealing with the principal actors in the drama. I am keeping the dispute regarding the Chief Justice out of the purview of this article, partly because he is virtually gagged by the burden of his office and cannot speak out, but mainly because I do not want to lower the prestige of the Supreme Court at a time when the honourable judges are struggling valiantly to demarcate their areas of authority vis-à-vis the executive. Those of us who have appreciated the manner in which the apex court has innovatively interpreted the law to widen the scope for individual freedom over the years, will not lightly tinker with its dignity. This, of course, is not to say that there should be no checks and balances in the system, but that they have to be worked out with maturity and sagacity on both sides.
Yet, some points must be made about the situation in general. The issue began with the Maharashtra Government’s decision to prosecute the Shiv Sena chief, Mr Bal Thackeray, for his writings in 1992-93, in a case that was clearly time-barred. Two Union ministers, Mr Ram Jethmalani and Mr Arun Jaitley, both opined that it was time-barred and appeared politically motivated, and the principal concern then was how Mumbai would react if the Shiv Sena supremo were actually arrested. It was precisely at this juncture that the Supreme Court heard a petition on the Srikrishna Commission report – a wholly different issue – in which the Union Government rightly pleaded that it had no role as law and order was a State subject.
It is entirely understandable that confusion could arise in the minds of the learned judges about a conflict between the Government affidavit on the Srikrishna issue and the ministers’ comments that were prominently reported in the Press. Incidentally, in the United States, judges and juries are prohibited from being influenced by – much less commenting upon – Press reports in the course of a hearing. I do not know the position in India but in the light of this unfortunate controversy, perhaps the Constitutional Review Commission could give some guidance in the matter.
Be that as it may, however, the Attorney General could easily have clarified the situation there and then. The two issues were, and remain, separate. And in the case of the former Law Ministers’ opinion on the Thackeray case, the metropolitan magistrate vindicated his stance soon after. There is a general consensus that this left the Maharashtra Government with egg on its face. And in this context, there is also a general bewilderment about why Mr Jethmalani actually had to quit the Cabinet.
Of course, we cannot challenge the Prime Minister’s prerogative in this respect. But if the Law Minister could not be allowed to be excessively combative with the Chief Justice of India, there is equally little merit in allowing the Attorney General to be unduly dismissive of the former minister. It was neither decent nor diplomatic of Mr Soli Sorabjee to go to the Press with comments like “he (Mr Rain Jethmalani) asked for it”, in the wake of Mr Jethmalani’s blaming him for his dismissal. The Attorney General could and should have maintained a discreet silence. Indeed, the dignity of his office demanded this. Even worse, he continued his verbal sparring with the injured Mr Ram Jethmalani beyond the first day, when his remarks could still be excused as a spontaneous reaction. Even-handedness therefore demanded that once the Attorney General gave vent to personal remarks against the former Law Minister (which he has not denied to this day), he too, should have been asked to put in his papers.
There are some other issues raised by the admittedly peeved Mr Jethmalani, which cannot be ignored if we are to mature as a democracy. One is that we cannot apply either a law or a yardstick only according to our convenience or our personal likes and dislikes. The second is that the Attorney-General has not been able to proffer a convincing explanation of why he gave the Hindujas a legal opinion. To my mind, the fact that the Hindujas are under investigation in a sensational corruption case is not relevant, and the legal fees actually received by Mr Sorabjee is absolutely immaterial.
What is pertinent is that Mr Sorabjee appears to have felt that the Hindujas were far too important as clients for him to turn away, even though he was Attorney General. This is why he approached the then Law Minister for permission to give them an opinion, which the Hindujas could have solicited from any other distinguished lawyer. The nation is at a loss to understand how a minister could be sacrificed for not being in the wrong, while an honourable Prime Minister could be seen defending an officer whose public conduct has been far below that expected of Caesar’s wife.
The Pioneer, 1 August 2000