Mumbai:
Last week, Ram Jethmalani, who is representing Kanimozhi in the 2G scam, spoke about the young MP's case to NDTV's Sreenivasan Jain. This is the transcript of the interview.
NDTV: Hello and welcome to this NDTV exclusive. The 2G scam has perhaps seen the highest number of high profile accused in jail for an extended period of time, bringing into a fierce debate, the nature of granting and denial of bail. Joining me is one of India's finest criminal legal experts, Ram Jethmalani, who is also representing two of the accused in the 2G case: Kanimozhi, daughter of Karunanidhi as well as Sanjay Chandra who is the promoter of Unitech, one of the companies which has been charged in the case. Mr Jethmalani, thanks very much indeed for joining us. You made a very impassioned argument in defence of your clients to be granted bail but that didn't happen in both cases, were you surprised at all?
Ram Jethmalani: Frankly yes, because bail has nothing to do with the merits of a case. Merits of a case are relevant to a very small extent. The extent to which they are relevant is simply this, unfortunately most lawyers and a greater number of judges don't know this - everytime you hear that gravity of the offence is a very relevant factor.
NDTV: Yes, that's what was raised in this case as well. The judges said that the offence was of such grave magnitude.
Ram Jethmalani: I agree with you that the gravity of an offence is relevant but they don't understand, it is relevant to what? It is relevant for the purpose of finding out whether bail is likely to be misused. If you are charged with a small traffic offence you are not likely to leave the country and run away. But if there is a grave offence where you're likely to be sentenced to life imprisonment or death, or for a very respectable man even a sentence of seven years, or eight years or ten years, it may be a great temptation either for absconding or for tampering with evidence. Therefore when you say that the gravity of the offence is relevant, what the legal ignoramuses don't understand is, that it is to be judged by only from one viewpoint - is it likely to provide a temptation or a provocation for absconding or tampering with the evidence?
NDTV: But how can you say that in this case there is no scope for that interpretation, that there is no possibility of tampering with the evidence?
Ram Jethmalani: Not at all. That possibility also is not a theoretical possibility of tampering with evidence or absconding, that way such a possibility exists in every case, when a man is released on bail. But it must be a reasonable possibility. But the prediction of a reasonable possibility has to be based upon your previous conduct. Have you at any stage interfered with it? Have you at any stage run away from police investigation? Have you made yourself scarce, have you refused to attend a hearing in court? But throughout the investigation, the police did not find it necessary to keep them in custody and they were quite happy with their conduct.
NDTV: It's only when your clients were produced in court that they opposed bail?
Ram Jethmalani: At the conclusion of the investigation, they just tell me that tomorrow you appear in court, then the magistrate what does he do, after he reads the chargesheet, he doesn't issue a warrant for arrest , he issues a summons. The summons is served on me and like a honest law-abiding citizen I go and appear in court. How can you take me into custody - for what?
NDTV: OK, I will tell you for what. The judge says "considering the magnitude of the crime, nature and enormity of the allegations, character of evidence they got and the apprehensions that the witnesses can be influenced in case the accused is released on bail I have no hesitation in holding out that bail is rejected. "
Ram Jethmalani: I am restrained in my attack on this reasoning but this reasoning is a total subversion of bail jurisprudence. That's what I told you. The misunderstanding is that courts when dealing with bail have said that you must consider these factors. But ultimately consider them to evaluate the probability of a person absconding and then that probability... yes two things, absconding or...
NDTV: Sir, would you at least concede that in the case of someone like Kanimozhi, she is a powerful person. She is an influential person, she is the daughter of the (former) Chief Minister, she is Rajya Sabha MP, isn't it quite possible that she could have influenced witnesses?
Ram Jethmalani: It is not the law of the country that merely because a person is an influential person, they should be denied bail. Law of this country is that, has that influential person shown a proclivity to use that influence either to suborde (subordinate) evidence or destroy evidence or to run away...
NDTV: Sir, would you at least concede that when they talk of magnitude, when the judges talk of magnitude of the crime and allegation, at least the magnitude of this particular case, it is a serious case... it is considered to be one of the biggest scams in India.
Ram Jethmalani: Again, people have been given bail, then a trial has gone on and at the end of the trial they have been found guilty and sentenced to death. But people have remained on bail, until they have been convicted and sentenced to death. Those were more serious offences.
NDTV: But would you consider that this is a serious offence?
Ram Jethmalani: The magnitude of the offence is not to be considered determined by the money involved in the case but the maximum punishment for it. Maximum punishment is what... seven years. And even in the cases of offences punishable where death or life-imprisonment, the law is that even there you have to evaluate bail only from this view point... Now please do not drag me into this huge discussion on this matter, I'm telling you that this is an absurd proposition.
NDTV: I concede your right to make that point, but the CBI chargesheet says that she is somebody who is been charged illegal gratification of a public servant, of using her influence to lobby for someone to become the Telecom Minster and...
Ram Jethmalani: Where have you found that? It has never happened in the history of our courts, that in bribery offences, bail has been ultimately denied.
NDTV: And this is happening for the first time?
Ram Jethmalani: Yes, this is happening for the first time that there is this kind of a perverse exercise of bail power.
NDTV: That's very strong words you're using against the judiciary.
Ram Jethmalani: Of course I'm using it. I have said so and I'm repeating it and I will tell the Supreme Court that this is subversion of our jurisprudence.
NDTV: This is the order both passed by the lower court, the Sessions court and as well as the Delhi High court. Even in the High Court, when bail was refused, the judge, justice Ajit Bharioke, said "while the argument of the petitioner appear to be attractive, one cannot ignore the history of this case to record its evidence that despite having collected prima facie evidence of involvement of the petitioners and deep-rooted conspiracies involving corrupt practices by the public servants, neither of the petitioners were arrested by the CBI nor were they taken into the custody and produced before the court along with the chargesheet."
Ram Jethmalani: It is again the mistake of the judges to think that an arrest is compulsory. Arrest is compulsory only if there is a genuine need of what you call a custodial interrogation or to prevent absconding or tampering with evidence. None of these circumstances exist here.
NDTV: No, here the judges seem to be implying something even more serious. They seemed to be implying that these accused are so influential that they managed to actually pressurise the CBI to not arrest them before the chargesheet was coming out.
Ram Jethmalani: I regret to say that this is judges playing to the gallery. This is not attachment to jurisprudence.
NDTV: Does this kind of comment do you think run the risk of contempt?
Ram Jethmalani: Of course this is playing to the gallery. The media has taken over most of this investigation, on the other hand I appreciate that some offences should have been detected earlier, should have been detected by the CBI itself. There are some offences where the Prime Minister should have reported himself. All this has happened but that doesn't mean that people shouldn't be given bail?
NDTV: OK, let me look at what you said in court concerning your own client, Kanimozhi. You said that Sharad Kumar, the MD and CEO of Kalaignar TV, who chaired all the meetings, signed all the agreements and relevant documents and taken all the decisions. He also frequently used to meet Raja and she had nothing to do with it.
Ram Jethmalani: I'm telling you that this is what you are reading about the Managing Director for whom I did not appear. This has nothing to do with Kanimozhi.
NDTV: But you seem to be blaming him, saying that he is the one to be blamed?
Ram Jethmalani: No no, I'm not, there is no question of blaming anybody. Please understand this.Try to understand.
NDTV: No, no, I'm quoting what you said.
Ram Jethmalani: If you want to discuss this, these are not facts of the Kanimozhi case, this is the case about the Managing Director.
NDTV: This is what you said about the Managing Director - you said he is the one who signed all the agreements; she has nothing to do with it?
Ram Jethmalani: I was not appearing for the Managing Director. I told the court that all evidence against the Managing Director is evidence of my client's innocence. My client is only a share holder, he has done nothing.
NDTV: So you're saying that all the documents were signed by him and he was in touch with Raja. But she had nothing to do with it.
Ram Jethmalani: She is just a shareholder. Shareholder is not responsible for running a company.
NDTV: But she is a 20 per cent shareholder, that's a good number of shares to exercise influence.
Ram Jethmalani: So what if she is (even) 100 per cent? So long as she doesn't exercise any executive power...
NDTV: The CBI says that she is the brain behind Kalaignar TV.
Ram Jethmalani: This is exactly why I do not appear on television interviews in relation to pending cases because you are asking me to argue a case as if you are now the Supreme Court.
NDTV: No no, I'm not... OK, let me not ask you about the case...
Ram Jethmalani: I will just tell you that according to me, according to my client, Kanimozhi has not taken part in the commission of this offence.
NDTV: None at all?
Ram Jethmalani: All this is about another accused for whom I refused to appear.
NDTV: Which is Sharad Kumar, the Managing Director?
Ram Jethmalani: Yes, and my argument was very simple that if you say that the MD has signed all the documents, then he was in touch with Raja, my client has committed no offence.
NDTV: No no sir, that's what you were saying.
Ram Jethmalani: Yes, but you are reading to me something...
NDTV: But the CBI has a different...
Ram Jethmalani: No please understand it's a very simple thing. I was arguing that it is only a person who is an executive officer, who carries out day-to-day administrative work of the company, who can be possibly guilty if this offence. A shareholder is not guilty of such an offence. It is that gentleman against whom this evidence that you're telling me. I told the court that all these evidence is the evidence of innocence of my client.
NDTV: Isn't it somewhat unfair to place the entire blame on a person who is doing the day-to-day affairs?
Ram Jethmalani: Don't ask such kind of questions, this is exactly where press is transgressing the limits.
NDTV: So what you're saying is that someone like A Raja could be involved, he could be corrupt, perhaps even Sharath Kumar can be involved?
Ram Jethmalani: Even Raja may have a defence, I've not understood his case. I've not studied his case, why should I? I go by the CBI saying something about the Managing Director...
NDTV: It says, well, I'll tell you what the chargsheet says that Kanimozhi has actively pursued the reappointment of the accused A Raja and this clearly establishes the associations.
Ram Jethmalani: You're all the time trying to create a bad public opinion against the poor accused on trial. Please stop doing this kind of activity.
NDTV: I'm just quoting from the CBI chargesheet.
Ram Jethmalani: These are court documents. The matter is to be discussed in the court. It doesn't have to be discussed on television screen.
NDTV: Let me change tack and ask you, when you took this case there was some amount of surprise because on one hand had your own party - the BJP - launching a nationwide campaign on corruption.
Ram Jethmalani: I myself am involved in the campaign against corruption.
NDTV: And there you are defending one of the accused in the 2G scam which is the BJP claims is the centrepiece of their campaign.
Ram Jethmalani: Understand a simple thing, there may be 10 witnesses against the person who say that we saw this man commit the murder. Ultimately it may turn out on cross examination of those witnesses they were either guilty of mistaken identity or that they are liars, how do you know? So ultimately you must give the accused full trial and deny him bail during the trial only if he is likely to tamper with the evidence or abscond. This is the law. Now I'm enforcing that law.
NDTV: But isn't it upto the discretion of the judges to make that decision?
Ram Jethmalani: No. I thought you will conduct this little more properly .I don't like this, This is not the way .You've got my answer, take it for what it is worth, tell the public that this is Mr Jethmalani's answer, you can go and add a gloss to it if you like, but I'm not going to answer any further questions on law.
NDTV: OK, then at least answer the political question I asked you that while you say that everyone is free for fair trial and bail is different from guilt. But it is a political embarrassment for the BJP that they are all sitting for satyagraha at Rajghat and you are defending Kanimozhi?
Ram Jethmalani: Well, if there is any embarrassment for the BJP, it's a matter between me and BJP; they will tell me something, who are you to interfere?
NDTV: So have they spoken to you? Have they expressed anything?
Ram Jethmalani: Nobody, no one.
NDTV: What made you take this case?
Ram Jethmalani: My professional duty. I am the Chairman of the Bar Council of India. I am the draftsman of the original rules of etiquettes and conduct. The first rule of law applicable to a lawyer is that no lawyer shall refuse to take a case on the grounds that either the client is guilty or he believes him to be guilty. Or that it will bring him unpopularity or that the client is unpopular. This is a statutory rule, the breach of which entitles the Bar Council to stop a man from practicing law because he is not worthy of practicing as a lawyer. As an enlightened man of the press, you should have known this elementary matter about the legal ethics of a profession. But I'm surprised that you don't know. Did you know there is a statutory rule like this?
NDTV: Sir, I did know and I'm glad that you have refreshed my memory about it.
Ram Jethmalani: It's certainly a rule that you've forgotten.
NDTV: I'm glad you reminded me. But doesn't it compromise your own stand on corruption?
Ram Jethmalani: There is corruption and the only way to end corruption is to assist those, who're clamouring about removal of corruption and what happened last night - you should be concerned about the disgrace that has been done by the government , what they have done to innocent people who were protecting our country against corruption.
NDTV: You're referring to the incident at the Ramlila Maidan.
Ram Jethmalani: I'm talking about what happened at midnight. The press should be more worried about it. NDTV in particular should be more worried about it, what has happened to the government.
NDTV: Sir, we are deeply concerned about it and we covered it extensively but we are discussing with you...
Ram Jethmalani: I'm sorry but you're not deeply concerned about it, you're diverting the public's attention from the major disaster that has happened.
NDTV: Sir, we've been covering that story non-stop since the night that it has happened.
Ram Jethmalani: I know what how it has been covered. I know the slant with which it has been covered. Please don't tell me this.
NDTV: Sir, now we're digressing. I just wanted to ask you in conclusion that you're saying that you will take your clients' case now to the Supreme Court, where you believe that you will get justice?
Ram Jethmalani: On one assumption that the client still has confidence in me and will come to me.
NDTV: Why won't they have confidence in you?
Ram Jethmalani: I lost their case in the trial court so I don't know. I didn't appear for Kanimozhi's case in the High Court. I did not.
NDTV: Yes, you appeared for Sanjay Chandra. I just want to ask you this sir, that you feel that this entire business of bail jurisprudence in conclusion as we wrap up has been misinterpreted in the judiciary.
Ram Jethmalani: According to me, yes, and according to me even some judgments of Supreme Court are wrong, they require to be reviewed.
NDTV: On the question of bail...
Ram Jethmalani: Yes, on the question of bail...
NDTV: But overall you're saying the discretion of judges when they look at a case and decide whether there should be bail or not does not apply in this case?
Ram Jethmalani: I believe that the judges have gone wrong in denying bail, I mean I'm talking of my clients again, I'm not talking of any...
NDTV: But Mr Jethmalani could a comment like that invoke contempt.
Ram Jethmalani: Please don't teach me the law of contempt.
NDTV: I'm not teaching you, I'm asking you sir...
Ram Jethmalani: If it was contempt I would not commit it.
NDTV: That's always a relief to hear... thanks very much indeed for talking to us.