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Conflict of interest: BJP wants Chidambaram to quit


Rajdeep Sardesai,CNN-IBN
Dec 16, 2011 at 06:41am IST

New Delhi: The controversy over the alleged conflict of interest involving Union Home Minister P Chidambaram in withdrawal of criminal cases against his former client, Sunair Hotels Ltd, on Thursday brought the proceedings in the Lok Sabha to a standstill as BJP demanded his immediate dismissal over the issue.

Here is the transcript of the discussion between IBN18 Editor-in-Chief Rajdeep Sardesai, Congress spokesperson Manish Tewari and The Pioneer Editor-in-Chief Chandan Mitra:

Rajdeep Sardesai: Manish Tewari, would you concede that this is now huge embarrassment for the Home Minister? What was the need for the home ministry to interfere, write letters, pursuing the issue of withdrawal of FIR's in a private dispute between two private parties? One of whom had been the client of the Home Minister.

Manish Tewari: Rajdeep, let's understand the facts very clearly to begin with. What is the charge which is being made against the Home Minister, that possiblly in 1999 or 2000 when he was not even a Member of Parliament, he had appear in the High Court or in Supreme Court or in Company Law Board as a senior advocate for a client. And in the year 2009 or 2010 that client who was never the client of the senior advocate because a senior advocate directly doesn't interact with the client, he is briefed by solicitors or by briefing councils made an applications to home ministry. The home ministry forwarded that application to the Law Ministry and on receipt of the opinion of the Law Ministry sent it to the Government of Delhi, that in your wisdom please examine it and see whether a case is made out for withdrawal. And if anybody has a nodding acquaintance with criminal law we would appreciate that the settled legal position is that even if the government was to go ahead and file an application under section 321 of the criminal procedure court for withdrawal. It is for the magistrate or the judge concerned to apply his judicial mind to it and then come to a conclusion as to whether it is the fit case for withdrawal or not. So at best the charge which is being labelled against the Home Minister is that why did home ministry forward a representation made by an erstwhile client of his, who was not really a client to the Government of Delhi for consideration.

Rajdeep Sardesai: But you know there is a coincidence. Manish Tewari the coincidence is Mr Chidambaram represented in court the owner of this five star Metropolitan Hotel in Delhi between 1999 and 2003. The day after he becomes Union Minister the concerned businessman files the petition to the home ministry to remove criminal cases against him and the balls start rolling in the case, which the ministry has not shown any interest previously. Naturally there will be a question mark, an element of doubt and an element of suspension.

Manish Tewari: May I just come in on that. That's precisely I was trying to explain Rajdeep that if anybody has the even has the nodding acquaintance how the legal profession is structured. Senior advocates rarely interact with clients, senior advocates don't even file a wakalat in the court of law. A wakalat in a court of law is actually filed by a briefing council or an instructing council and more often then not there is never an interface between the client and a senior advocate. You can go and ask anybody who appears regularly in a court of law that as to how senior advocates are briefed and since I come from the profession if you can take my words for it. I can tell you that is what the convention is.

Rajdeep Sardesai: Let Chandan Mitra respond. Chandan Mitra the point Manish Tewari, what is holding on to the fact that as a senior lawyer and a formidable senior lawyer. Chidambaram had numbers of clients; he is not to know every client for whom he appeared for. So it may only be a coincidence that this is the individual whose private complaint comes to the home ministry and then is recommended for withdrawal of the case. That is the benefit of doubt that Congress would like to give the Home Minister, respond.

Chandan Mitra: Mr Manish Tewari is trying to clutch at straws when the straws are not there. I am sorry that he is trying to mislead public opinion through your channel in the entire matter. There is no doubt about the Mr Chidambaram's culpability. Is Mr Manish Tewari trying to suggest that Mr Chidambaram is such a poor lawyer that he doesn't even understand the nature of the case that he is representing in court? He appears at least three time to the best of my knowledge he appeared more but I have evidence at least three appearances on behalf of Mr SP Gupta and Sunair hotels in a commercial dispute. Is his memory so short that in 2008 when he became the Home Minister and the files starts moving the following day, nothing rings a bell in Mr Chidambaram's mind? And the second point which is the clincher, you know it is such an innocuous thing saying that the home ministry requested the Delhi Government that please scrutinies and if there is any evidence, consider removing. Let me read out the operative paragraph of home ministry letter to the home secretary of the Delhi Government. "The matter has been considered carefully in detail by the MHA as per the advice tendered by the department of the department of the legal affairs ministry of law and justice, keeping in view the facts of these cases etc etc. The last line, the clincher "this has the approval of Home Minister". Now you tell me.

Rajdeep Sardesai: The home ministry now says that the drafting error Chandan.

Chandan Mitra: Drafting error? It's a crime. It's a drafting error? It's a crime. I mean if it is the drafting error heads must roll and the first head to roll should be that of Mr Chidambaram, whose approval was there for the withdrawal of prosecution.

Rajdeep Sardesai: Just let me take that to Manish, Manish just take a look at the facts of the case. In March 2011 the law ministry says we are of the opinion that it is not appropriate to interfere in the investigation. The Supreme Court and the High Court have already said that they didn't want to the proceeding squashed. Then why did the home ministry go ahead and order withdrawal of criminal FIR in November 2011 against this businessman, the owner of Metropolitan Hotel who was a client of Mr Chidambaram. And importantly today the Lt Governor, after this story was aired on IBN7 and CNN-IBN yesterday and then came in the Pioneer today, now says that the withdrawal must be stop. I mean the coincidence of events surely leaves something to be answered Manish Tewari?

Manish Tewari: Well, Rajdeep I think the facts speak for themselves. The home ministry at best acted as a clearing house for an opinion which was given by the Law Ministry. The home ministry doesn't really have the authority in order to withdraw a criminal case against anybody.

Rajdeep Sardesai: They didn't have the authority but they made the recommendation.

Manish Tewari: Please read the recommendation very carefully. All that they have said that please consider the matter. Now let us presumes you make a representation to a public authority that there is a false case which has been registered against.

Chandan Mitra: No, no.

Manish Tewari: Chandan hold your horses, just hold your horses. You know you will get your chance. Presuming you make the representing to a public authority that a false case has been registered against you and it needs to be examined. What will they do? They will first of all ask the Law Ministry for an opinion, Law Ministry says under the section 321 this power rests with the Government of India, with the concerned the government in order to take appropriate action, they transmit the opinion onwards to the Government of Delhi.

Rajdeep Sardesai: So, you are saying the home ministry was only postman?

Manish Tewari: Well, at best a clearing House Rajdeep

Rajdeep Sardesai: Chandan Mitra respond the Delhi Lt Governor, the Delhi Government must also answer.

Chandan Mitra: Look that the point is Rajdeep that the very fact that the Lt Governor has asked for the restoration of those cases. A crime was committed under the orders from the home ministry under the instructions to the Delhi Government and now why the Lt Governor restored the case. This show in May the letter went out from home ministry, in November the FIR and applications in fact was moved for quashing of the FIR and now the Lt Governor reverses. And what did the Law Ministry say? The Law Ministry was very clear, it said "it would not be appropriate to take steps under 178 as requested by Sri SP Gupta moreover from the status of report submitted by Delhi Police it is observed that the chargesheet have already been filed by the Delhi Police in the court and these three cases are in various cases". And then it passes the buck back to the home ministry since the home ministry is so much interested in getting the FIR squashed saying that ofcourse under section 321, if you want to overrule us and take a decision, please go ahead.

Rajdeep Sardesai: Manish Tewari the fact is Mr Chidambaram seems to be a person of integrity. He has had that reputation no one is denying that but the fact is, the fact in this case are very strongly against the home ministry in particular. The Delhi Police had accused Satypal Gupta of forging letter heads of many MPs including Sonia Gandhi to launch complaints against VLS finance in a chargesheet filed in 2006. Police investigates, find wrongdoing, why the decision to withdraw FIR? When the Supreme Court refuses to squashed it, high court refuse to squashed it, when the law ministry says we don't feel it to appropriate to interfere but the home ministry recommends the withdrawal. So the circumstance evidence is very strongly against the home ministry as a result the Home Minister himself.

Manish Tewari: Rajdeep, at best you entire circumstantial evidence rest on the thread as if there is a relationship between a client and his lawyer. And as I said that assumption has been misconceived.

Rajdeep Sardesai: Conflict of Interest, Manish Tewari a conflict of interest. Someone is my client and he comes to me and I withdraw his petition. It isn't conflict of interest?

Manish Tewari: That is precisely what I am trying to explain to you Rajdeep that in the case of a senior advocate, his client is rarely an instructing counsel. His client is the briefing council; he doesn't even file a vakalatnama in the court. The vakalatnama to appear on behalf of the client is filed by the briefing council or the instructing council that's the position in law. If you are looking at the client-attorney relationship, the client-attorney relationship in this case or in the case of a senior lawyer is really between the briefing council and the senior advocate who appears and argues the case because he may be having the face value.

Rajdeep Sardesai: Chandan Mitra let me give you the hard fact, let me give you the home ministries strongest defend . Home Ministry says when the file was submitted to the Home Minister Mr Chidamberam note on 4/5/2011 that the MHA should not give any direction and the MHA may only covey the advice of the ministry of law.

Chandan Mitra: What is this? Why MHA, I am accusing the minister of home affairs of completely lying in this matter. The letter from Mr AK Saxsena to Mr Arvind Ray principle secretary of home government of Delhi gives away that lie. It is very clear it is not merely convening the legal opinion of the law ministry. It is saying that go ahead and take action under section C 21 of CrPc for withdrawal of prosecution immediately. And Mr Manish Tewari is trying to say that Mr Chidambaram does not know the case at all having appeared as the council from 1999 to 2003.

Rajdeep Sardesai: Home Ministry claims that Mr Chidambaram didn't see the file till this year.

Chandan Mitra: How do we believe the claim? If Mr Chidambaram pretends that he doesn't know Mr SP Gupta, he doesn't have recalling of his case. I mean, can that man remain the Home Minister of the country entrusted with our national security. If he is so forgetful, if he does not see the files. But it has noted by the officer that this has the approval of the union Home Minister. Is Mr AK Saxsena concocting this?

Rajdeep Sardesai: Manish Tewari respond again the balance of the documents, if you look at the pure document trail Mr Chidambaram has something to answer for. You can't simply wish away and say that there is absolutely no conflict of interest. It may well have be discovered later post facto but the fact is there's appears credible prima-facie conflicts of interest.

Manish Tewari: Rajdeep, with great respect I would like to say this is akin to raising a ghost and then slaying it and then saying I am a superman. You know at the end of the say a senior council at times is engaged with one appearance, two appearance at times of entire matter and as I was explaining earlier that there is never client attorney relationship in the case of the senior advocate and the client. Because it all routed through the briefing council or it is routed through an instructing council who is actually the advocate in record.

Rajdeep Sardesai: But shouldn't Mr Chidambaram had been extra careful? This was the private dispute he had been their council, he could run the risk of allegation. Should he have been more diligent?

Manish Tewari: Now again, let me make an another argument. Assuming while not admitting you wear one hat as a lawyer, when you become a public functionary it doesn't mean that you carry the entire baggage of your practice to the home ministry. In this particular case the home ministry has said that Home Minister didn't look at the file. I am going forth and saying assuming while not admitting, that even the home ministry has looked at the file even the home ministry as the capacity as the public functionary finds that this is the fit case of withdrawal. Are you saying merely because he was the council that completely disqualifies him from exercising as the judgment of the public functionary.

Rajdeep Sardesai: Okay.

Chandan Mitra: Manish Tewari is going round and round arguing the same thing. But you know as your story yesterday pointed out Rajdeep that the very day after Mr Chidambaram became Home Minister the file started moving, the application by Mr SP Gupta was received in his office the very next day there after a series of application was moved by Mr SP Gupta

Rajdeep Sardesai: But could it not have been decided on the merit because Chandan Mitra there is one feeling that the BJP is determine to get rid of Mr Chidambaram. Whether it is 2G whether now through it's to this case because he has taken you on the Hindu terror. This is what Digvijaya Singh and others in the Congress say he has taken on the BJP. So he became enemy number one for you so you determine to get rid of him.

Chandan Mitra: They are clutching the straws even the straws don't exists. You expect that when an open and shut case of the conflict of interest and the misuse of the authority is staring at our face that we should oblige Mr Chidambaram and the government that in the 2G matter we should oblige Mr Chidambaram that when they all try to pull the blame on Raja and we are all squeaky clean. Now these are serious cases of that prejudice and natural interest. And you expect the main opposition party to keep quite.

Rajdeep Sardesai: Okay final words from you Manish Tewari. Is there any possibility of Mr Chidambaram telling us exactly what happened coming clean or is there any remote possibilities. Because the Congress said that there is no reason for him to resign him for the moment that Mr Chidambaram may consider resigning on this particular issue?

Manish Tewari: You know Rajdeep this is setting a very very dangerous president for anybody who is a working professional. This means that the moment you become the public functionary you will carry the entire baggage of your being a professional into your office as a public functionary. And therefore every brief that you have held every story that you have done ever story that you have carried out in you news paper. Will then be scrutinised from the myopic point of view as the conflict of interest. Is this is president that we are trying to set?

Rajdeep Sardesai: Today Chidambaram tomorrow it could be some one else. Many senior lawyers like Arun Jaitly who have been ministers in the past they may have hundreds of clients, is every case going to be seen as conflicts of interest.

Chandan Mitra: Alright I know what Manish is getting at.

Manish Tewari: I am not getting at you personally Chandan.

Chandan Mitra: You are welcome.

Rajdeep Sardesai: Let Chandan Mitra respond.

Chandan Mitra: It is only on president that I am trying to make a point slowly that Manish Tewari has heard the term rescuing. When a person become a judge as a lawyer he represented all kinds of companies. If that matters comes before home ministry judge says I reuse from the case or I will not hear it sent it to another court. I face this in my legal issue in so many times. Now couldn't Mr Chidambaram at least have rescued himself saying I cannot take a view on this please don't brief me at all please don't take my opinion. Go ahead either consult the MOS consult the Prime Minister whatever you want to say but I reuse. He couldn't have said that?

Rajdeep Sardesai: Okay Manish respond you are a lawyer turned politician I will give you the final words.

Manish Tewari: That is precisely you know you yourself contradict yourself Mr Chandan Mitra because the Home Minister to express no opinion. The only opinion which the Home Minister has expressed is please convey the opinion of the law ministry to the concerned authorities. why did you make the value judgment

Rajdeep Sardesai: The home ministry did recommend the withdrawal of the case. Under whose instruction they did that is the big question mark? Clearly Mr Chidambaram facing the heat at the moment.

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