Jethmalani vs judiciary

Surely, we were not playing chess.quot; This is what Ram Jethmalani wrote to Chief Justice of India A.S. Anand two days before he was ask...

Surely, we were not playing chess.quot; This is what Ram Jethmalani wrote to Chief Justice of India A.S. Anand two days before he was asked to resign as law minister. The point at issue was the appointment of Justice Brij Mohanlal as chairman of MRTP Commission. Jethmalani had done so without consulting the chief justice. But Anand refused to swear him in.

As soon as the chief justice heard about the appointment, he complained to Prime Minister Atal Behari Vajpayee, who sent the letter to Jethmalani.The chief justice said that the well-established convention was violated by the law minister. The chief justice had also quoted two Supreme Court judgements, which said: quot;In the matter of appointment of chairman and vice-chairman and members of the tribunals, which exercise even quasi-judicial functions, it is necessary to make appointments in consultation with the chief justice of India or his nominee and such consultation must be effective and meaningful.quot; The Prime Minister assured the Chief Justice in his reply that quot;the records of the last 15 years have been pursued. Prima facie, there does not seem to be any departure from the well-established procedures. However, I am requesting the law minister to appraise you of all the relevant facts on his return from abroad.quot; Instead of mollifying the chief justice, Jethmalani acted like a schoolmaster and wrote to him: quot;The precedent cited by you is a somewhat curious case and I should much prefer that it is not cited in future. I happened to deal with thismatter during my brief tenure as minister in this department.quot; In thesame letter, Jethmalani said that one of the cases cited was quot;irrelevant and, in any event, one sparrow does not make a summer.quot;

Jethmalani did not stop at that. He wrote further, in an admonishing tone: quot;You have complained that in appointing Shri Justice Brij Mohanlal a settledconvention has been violated. I have examined the records for the last 20 years and I find not only there is no such settled convention but the convention is exactly to the contrary. No consultation has taken place with the chief justice of India when a retired judge of the high court has been appointed to the commission. You have doubtless mentioned the precedent of February 1995, when the minister of state, Shri Bharadwaj, sought the views of the chief justice of India regarding the name of the judge to be recommended for this appointment. Shri Bharadwaj wanted a sitting judge to be appointed.quot; At least in three cases, i.e., of Justice G. R. Luthra, R. A. Jahgirdas and A. N. Verma in 1986, 1990 and 1992, appointments were made without consultation and quot;without demurquot; by the chief justices of India, according to Jethmalani. quot;This is not to argue that no practice can grow without statutory basis but the growth must be voluntary, after due consultation with my colleagues and obtaining sanction of the Cabinet.A practice cannot be and should not be compelled by refusing to go through the ritual of a swearing ceremony,quot; said Jethmalani.

He challenged both the assumptions of the chief justice. He said: quot;Your first assumption was that Supreme Court judgements quoted by you mandatedconsultation. You have kindly agreed that they do not apply. You are now relying on their spirit.quot; quot;Your second assumption,quot; said Jethmalani, quot;is contained in the same letter. The settled convention so far has been that, whenever a new chairman of MRTP Commission is appointed, the views of the chief justice of India are sought regarding name of the appointee before any recommendation is made to the ACC or prime minister for appointment.quot; Jethmalani conceded that quot;the intensive research that has gone into preparation of the two annexures to your chief justice8217;s latest epistle has not disclosed a single case in which consultation with the chief justice of India took place for appointment of a retired judge as chairman, MRTP Commission.quot;

Jethmalani himself admitted, quot;though our relationship today is not that of a practicing lawyer and a sitting judge, yet I have almost adopted the same attitude which a lawyer should have to a judge while in practice. The tradition of the bar is never to tell a judge that he is wrong even when he is. A lawyer has to respectfully guide the judgement of his error.quot; If nothing else, the intemperate language used by Jethmalani is sufficient to damn him. He is a brilliant lawyer, who has served the profession well. This makes it all the more incumbent on him to respect the chief justice of India, who represents the judiciary, one of the pillars on which the edifice of a democratic country rests. How can a law minister of Jethmalani8217;s eminence tell the chief justice, quot;Surely, we were not playing chess,quot; or, quot;one sparrow does not make a summer?quot; His flourish of language seems to have got the better of him. It is significant that the first letter by Jethmalani ended with quot;warm personal regards.quot; In the last one, theword personal8217; had been dropped.

One feels sad when lawyers like Jethmalani make fun of the chief justice to stress the point. He may like or dislike Anand. But he cannot insult the office. There are ways to voice differences with the chief justice. But they have to be worded in such a way that they do not smack of superiority. Jethmalani would himself be horrified if the same slipshod phrases had been used against him. It is apparent that he wanted a pliant chief justice, the phrase Jethmalani used to attack Attorney-General Soli Sorabjee. Anand turned out to be a no-nonsense chief justice, to use Jethmalani8217;s expression once again. quot;This is a court of justice,quot; a lawyer once exclaimed while arguing a case in the Supreme Court of America. quot;You are in error,quot; Justice Oliver Wendell Holmes, Jr., instantly replied. quot;This is a court of law.quot; He meant that the court was primarily concerned with the meaning and constitutionality of law, rather than the fate of the individuals who encountered the law. Chief justice Anand had no ill-will towardsJethmalani. The chief justice, the custodian of law, had to tell him that he could not brush aside the office Anand had occupied. The Constitution only says: quot;The Supreme Court shall be a court of record and shall have all the powers of such a court.quot; The important duty of defining quot;the judicial powersquot; has been left to the judges. The chief justice only did that when he pointed out to the law minister that the chief justice had the right to be consulted on judicial appointments. In the case of Jethmalani, there was also the charge of impropriety regarding M S. Shoes.