The catalysts and culprits of justice

Yes, I smoked (grass), but did not inhale,” was one of the two statements by the former President of the United States of America, Bill Clinton, that had no takers; the other related to a certain Monika Lewinsky.

I am reminded of President Clinton in the context of the Attorney-General of India asserting that he attended the meeting in the office of the law minister, Ashwani Kumar, specifically called to deliberate upon the CBI’s proposed report to the Supreme Court, but he did not read it!
Now that the din and bustle are put to temporary rest until July 10, it is time to recall an important constitutional provision, namely, Article 144 which reads, “All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court”. The Supreme Court resorted to this article when it called upon the CBI to make investigation into the alleged irregularities in the matter of allocation of coal leading to enormous loss to the exchequer. Thus the matter was between the CBI and the court. No bystander, howsoever high he may be or whatever may be his hierarchical situation vis-à-vis the CBI, had any authority to adulterate the duty that the CBI was ordained to discharge. The CBI’s duty was to investigate and submit a report, not present a legally perfect essay. The investigation was into facts and facts only. Therefore, there was no room for any doubt whether the CBI in the discharge of its special duties to the Supreme Court was to take the aid and advice of the law minister and the law officers. This much seems elementary.
It was perhaps with this background that the court enquired, on March 12, 2013, whether the report of the CBI was shared with the political executive — more like a housewife’s question to a milkman in the days gone by, “Hope you did not add water to the milk?” Like the usual culprit who was a willing party to the adulteration, one of the two law officers — the attorney-general (AG) and the additional solicitor-general (ASG) — present in the court firmly denied any such misdemeanor. That was a blatant lie to the knowledge of the law officers. Who made the false statement?
The now famous letter of ASG Raval of April 29 to the AG makes a reference to a private conversation between the two where the AG appears to have suggested that the ASG had made a false statement to the court and that the AG did not contradict him. The ASG refuted this and further said, “Despite the above facts while replying to the queries on 12 March as to what was contained in the status report, you (the AG) had deemed it appropriate to take a stand that the contents of the status report were not known to you, which fact you knew to be incorrect. On account of your statement, I felt embarrassed and was forced to take a stand in the court consistent with your submission made as attorney-general of India that the contents of the status report were not known to you and that they were not shared with the government.”
Raval’s letter remains un- rebutted during the long enough intervals that followed since April 29. Notwithstanding the many conflicting and opaque pictures presented, it is now beyond any doubt that the CBI’s status report was doctored. The mission was to remove any possible sting or clues that might help the court to unearth the filth. Ultimately the report arrived in the court “without the heart” — like the body of Sarabjit Singh, the slain Indian prisoner in Pakistan jail. Obviously the heart was deliberately removed in the brazen operation conducted by the team headed by the law minister in the presence of the AG. No one who participated in it and who were present in the court on May 8 expressed even a word of regret. Maybe it is reserved for a day beyond July 10.
The matter is serious. The resignation of the minister cannot wash it white. All the players in the sordid drama may be called upon to state on oath their own versions, to find out whether the shameless exercise was merely flaunting of loyalty or if there was more. The Supreme Court has in the past called upon a sitting chief justice to file an affidavit in connection with a pending case and the chief justice obeyed — the law minister and the law officers cannot resist.
The office of the AG is of great significance. It is a constitutional office, not a post or a job. Under Article 76 of the Constitution, only a person qualified to be a judge of the Supreme Court can occupy it. The AG is acknowledged as the leader of the legal fraternity — he is a standard bearer. Every lawyer is an officer of the court duty bound to assist the court in the administration of justice; the first among them — the AG — cannot afford to be found remiss in observing the standards of rectitude. One recalls with reverence Motilal Setalvad, the first attorney-general of our Republic, who incidentally was also the longest serving. Whenever he stated a fact while arguing a case the court used to be apologetic before asking where among the documents could it be found. There were other AGs — S.V. Gupte, for example — whose statements were accepted as stated, not subjected to verification.
The legal profession is faced with the proverbial situation of a pope being accused of adultery. When His Holiness the Shankaracharya of Kanchi was accused of committing murder, like many others, I was very sad; but the hunch that the accusation might be a foisted one provided the needed solace. When the attorney-general is accused of lying to the court — or of being a willing party to manipulations leading to hiding of truth — I start wondering when will he save the profession from prolonged embarrassment that it does not deserve, either by proving his innocence if possible or by admitting the lapse and quitting before he is asked to file an affidavit.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India