Jethmalani (in a black coat) versus Jaitley (in the witness box)

While cross-examining the finance minister in court, the veteran lawyer asks, “Are you aware that I advised Mr Narendra Modi not to set you up as a candidate from the Amritsar seat?”

Arun Jaitley and Ram Jethmalani

On 21 December 2015, Finance Minister Arun Jaitley filed a civil defamation suit against Delhi Chief Minister Arvind Kejriwal and five other Aam Aadmi Party (AAP) leaders in Delhi High Court and a criminal defamation suit against them in district court in Patiala House, New Delhi. This was in response to the Aam Aadmi Party’s allegations of Jaitley’s complicity in the corruption in the Delhi and District Cricket Association (DDCA) while he was the president of the cricket body. The allegations of corruption pertained to the reconstruction of the Ferozshah Kotla cricket stadium between 2003 and 2015 in which the costs had drastically gone up and contracts were awarded to companies that existed only on paper. Earlier, on 15 December 2015, the CBI had raided the office and residence of Rajendra Kumar, principal secretary, Government of Delhi. Kejriwal alleged that the purpose of the raid was to seize incriminating documents against Jaitley as the Kejriwal-led Delhi government was conducting an inquiry on his role in the corruption. Veteran lawyer Ram Jethmalani is representing Arvind Kejriwal and co-defendants in the case. Given below is a transcript of the Jethmalani’s cross-examination of Jaitley, who is a lawyer himself, on 6 and 7 March 2017 at the Delhi High Court.

Jaitley: I started practising as an Advocate in 1977. In between my tenure as Minister and leader of opposition in Rajya Sabha, I had my professional licence put in abeyance. I practised predominately in the civil side and I also did some criminal matters. I have seen hundreds of claims on the civil side in my practice and I am familiar with the rules of Code of Civil Procedure. I am familiar with the

requirements of the clauses of the verification of the plaint.

Bishan Singh Bedi and Arvind Kejriwal

Jethmalani: Are you aware that you are required to state in your plaint which of the facts are based on your personal knowledge and which are derived from other sources which you believed to be true? (Objected to by the counsel for the plaintiff being a question of law).

Court observation: Question is disallowed as [it] is a question of law and not fact and otherwise also the witness has already answered that he is familiar with the rules of Code of Civil Procedure.

Jethmalani: Have you in your professional career seen a verification similar to that in the present plaint?

Court observation: Question is disallowed as [it] is irrelevant to the outcome of this case.

Jethmalani: I put it to you that para no. 17, 18 & 19 of the plaint contain facts. What do you have to say?

Jaitley: Para no. 17 to 19 contain the necessary legal requirement with regard to the date when the cause of action arose for filing the plaint, the territorial jurisdiction clause and the pecuniary jurisdiction clause.

Jethmalani: I put it to you that no facts that constitute a part of the cause of action are derived from any advice or information given by the lawyer. What do you have to say? (Objected to by the counsel for the plaintiff being a matter of argument).

Court observation: Question is disallowed as [it] is a matter of arguments and not a matter of fact.

Jethmalani: Are you aware that this suit is for recovery of damages for a tort, which in civil law is known as slander or libel?

Court observation: Question is disallowed as [it] is a question of law.

Jethmalani: I put it to you that the entire plaint does not mention about slander or libel at any place. What do you have to say? (Objected to by the counsel for the plaintiff being a matter of record).

Court observation: Question is disallowed as [it] is a matter of record.

Jethmalani: In the entire plaint, you have used the phrases of criminal law as if you are claiming damages of defamation, which is a criminal offence in India and not a civil tort? (Objected to by the counsel for the plaintiff being a matter of law).

Arun Jaitley is a former president of Delhi and District Cricket Association (DDCA)

Court observation: Question is disallowed as [it] is a matter of record.

Jethmalani: Is there any particular reason as to why you have not mentioned about slander or libel in your plaint? (Objected to by the counsel for plaintiff)

Jaitley: The substance of the facts in the plaint is clear and so is the injury caused to my reputation.

Jethmalani: I put it to you that as per the plaint, paragraph 16 at page no 13, the defendants made the defamatory statements on five dates. What do you have to say? (Objected to by counsel for plaintiff being a matter of record).

Jaitley: The allegations made by the defendants against me are made over several days and constitute a permanent record on the print, digital and electronic media

Jethmalani: The alleged defamatory statements were made from 15th to 20th December 2015 and the suit was filed on 21.12.2015. What do you have to say?

Jaitley: It is correct.

Jethmalani: Damage is “irreversible’ if you made an effort to repair it but did not succeed. Is it correct? (Objected to by the counsel for the plaintiff as it is a matter of opinion).

Court observation: The cross-examination is not to check the general knowledge or the knowledge of the English of the witness. As such the question is disallowed.

Jethmalani: Did you make any effort to reverse the alleged damage before coming to the court?

Jaitley: I contradicted the allegations made against me in the public space available.

Jethmalani: Give some details of the efforts made by you to reverse the alleged allegations.

Jaitley: I contradicted the allegations in the media and also in the Parliament, where echoes of these allegations were raised.

Jethmalani: How did you, during those six days, find that the damage is irreversible?

Jaitley: Notwithstanding my denial, these allegations continued to be raised both in the media and before the Parliament, they were also raised in the State Assembly of Delhi. Those who raised [them] did not factor in my denial. It was therefore obvious that irreparable damage had been done to my reputation.

Ram Jethmalani

Jethmalani: How did you discover this before you filed your suit on 21.12.2015?

Jaitley: I have already answered this question.

Jethmalani: Are you going to tell us that any serious effort was made by you to reverse the alleged damage before filing this suit?

Jaitley: My denials were a serious effort.

Jethmalani: You are evading the answer to this question that what serious efforts were made by you before filing the suit on the next day?

Jaitley: I have already answered this question.

Jethmalani: I have not heard the answer to this question and please tell where you have answered this question?

Jaitley: I have already answered it. It is wrong to suggest that I am not telling that I made efforts but nobody believed me. It is wrong to suggest that it compelled me to make the statement that the damage is irreversible.

Jethmalani: What is the meaning of the word “unquantifiable damage” used by you in para no. 16 of the plaint?

Jaitley: I believe that considering my stature, background and reputation, the loss caused to me and my reputation was so enormous that it could be considered unquantifiable.

Jethmalani: In other words, it was your own personal feeling about your own greatness that it cannot be quantified in fiscal measure. What do you have to say?

Jaitley: My view about my own reputation was based on what my friends, well-wishers and other people, both privately and in the media, had expressed an opinion on this subject.

Jethmalani: In other words, you are telling that you cannot assign any objective rational reason but it depends where you place yourself. What do you have to say?

Jaitley: The value I placed towards loss of my reputation in this suit is only a small part of the enormous damage caused.

AAP leaders held a press conference to explain Arun Jaitley’s alleged role in the DDCA scam

Jethmalani: You have not suffered any monetary damage as a result of this and that is why you have called it by the expression “unquantifiable damage”. In other words, you neither lost any income nor money. What do you have to say?

Jaitley: The loss of my reputation has been partly quantified in terms of money in my claim.

Jethmalani: For which it is your only inner logic in mind and nothing objective, which you can share with the court. What do you have to say?

Jaitley: A person’s reputation operates in the public space and so does the loss of reputation. In addition it causes pain and mental distress to the person defamed, which it did in my case.

Jethmalani: You do not claim in this figure of Rs10 crores there is any loss of income or property. What do you have to say?

Jaitley: The nature of my claim has been clearly set out in the plaint.

Jethmalani: Please describe the portion of the plaint where you have so mentioned.

Jaitley: In specific, it is set out in paragraphs 13 to 16 of the plaint.

Jethmalani: In the urgent application filed with the plaint, you have referred to your rights being violated. Which right you are referring to in this application?

Jaitley: My counsel’s letter dated 21.12.2015 to the Deputy Registrar for urgent listing [referring] to “rights of the plaintiff” intends to convey that on account of a continuous and sustained campaign of the defendants, there is a loss of my reputation and hence an urgent listing is required.

At this stage, further cross-examination of the witness is deferred for lunch and to be resumed after lunch.

Jethmalani: You have used the word “goodwill” in the letter addressed to Deputy Registrar filed along with the plaint. Are you aware about the difference between “goodwill” and “reputation”?

Jaitley: There are overlapping areas in the meaning of the two words and the counsel’s letter dated 21.12.2015 in that sense uses them interchangeably.

Court observation: The said letter is marked as Ex. C-1.

Jaitley: This letter is signed and drafted by my Advocate and the choice of the word “goodwill” is of my lawyer. I do not remember whether I read Ex. C-1 when the plaint was filed. I did not pay much attention to this letter Ex. C-1 before coming to the court today. It is wrong to suggest that the words “goodwill” and the “reputation” are totally different.

Jethmalani: I am showing you an authoritative dictionary of English language, ie Webster’s Comprehensive Dictionary. Do you see the difference in the meaning of these two words provided in this dictionary? (Objected to by the counsel for the plaintiff for the reason that only a document can be confronted to the witness).

Jaitley: The question is disallowed as the same has to be argued and witness cannot be confronted with a dictionary for the meaning of two English words.

Jethmalani: I put it to you that “goodwill” is enjoyed even by a crook, who has done some good thing to somebody. What do you have to say?

Court observation: Question is disallowed as [it] has no bearing on the issues in this case.

Jethmalani: It is correct that men in power who do good things for their good friends, enjoy a lot of goodwill?

Court observation: Question [is] disallowed as no general observations of the witness are called for and only specific question can be asked which relates to the facts of the case.

Jethmalani: Do you agree that reputation does not suffer from these types of defects as goodwill suffers?

Court observation: Question disallowed as no general observations of the witness are called for and only specific question can be asked which relates to the facts of the case.

Jethmalani: Kindly point out those portions of the plaint, which are based on the knowledge derived by you from the electronic and print media as referred [to] in verification clause of the plaint.

Jaitley: The defamatory allegations made individually and collectively by the defendants are contained in paragraph no. 5 of the plaint and they have been extensively reported in media.

Jethmalani: Are you sure that the entire averment made in para no. 5 of the plaint was derived by you from the electronic and print media?

Jaitley: Statements contained in para no. 5 have been extensively reported in the print, electronic media as also on the social handles and this information is derived from these sources.

Jethmalani: Have you filed those documents on record of this case from where you derived such information?

 

Jaitley: I have extensively filed those documents.

Jethmalani: Obviously all those documents must be of a date prior to the date of filing of this suit. What do you have to say?

Jaitley: It is a matter of record. I have quoted those documents in para no. 5 of my plaint and the supporting documents are on record.

Jethmalani: Please identify those documents from the record.

Jaitley: Those documents start with Ex. PW1/1 and continue thereafter. In relation to the statements made by each one of them the documents are already exhibited in my examination-in-chief with the defamatory imputations specifically marked on each document.

Jethmalani: Since how long in the politics of this country, you have known defendant no.1?

Jaitley: I have known about defendant no. 1 during the last one decade on account of his political and public activities.

Jethmalani: At no time, defendant no.1 has made any statement against you prior to the one mentioned in the plaint. What do you have to say?

Jaitley: He could have made political statements critical of me in the past, some of which I remember but not statements relating to imputations of personal integrity against me.

Jethmalani: At no time before this suit, defendant no. 1 made any statement which could give you any cause of action or complaint?

Jaitley: I never complain against political criticism but it is for the first time when personal imputations questioning my integrity were made.

Jethmalani: Is it correct that the reason why you have filed this suit for the first time is described in para no. 4 of your plaint?

Jaitley: It is described in para no. 4 and also in several other parts of the plaint.

Jethmalani: The basic fact has been described in para no. 4 but anything repeated in further paragraphs is only a repetition of what is stated in para no. 4 and nothing new is added?

Jaitley: It is incorrect since the defamatory imputations used by the defendants and mentioned by me in para no. 5 are in addition to what I have said in para no. 4.

Jethmalani: Can you mark those portions in the remaining part of the plaint, other than para no. 4 which relate to same subject matter as in para no.4? (Objected to by counsel for plaintiff as the witness has already answered this question).

Court observation: The witness has already stated that the other portions of the plaint are addition to para no. 4.

Jethmalani: You have talked about a raid in your plaint. This raid took place in part of the office premises occupied by defendant no. 1. What do you have to say?

Jaitley: This fact is not within my knowledge. I only know from the media that a search has taken place in the office of a bureaucrat.

Jethmalani: And [the] media stated nothing more than that which was of relevance to you. What do you have to say?

Jaitley: I recollect reading from the media that defendant No.1 and maybe some others had alleged that the Central Bureau of Investigation had conducted the raid to take away some files where they alleged that I was named. I am personally unaware of any such details.

Jethmalani: You have never believed that this raid has anything to do with the defendants making defamatory statements against you. What do you have to say?

Jaitley: The defendants made defamatory statements against me immediately after this raid. Their effort was to deflect the attention from this raid and somehow link me to a controversy with which I had no connection.

Jethmalani: This officer, whose premises was searched on that day, was an old officer of previous Delhi Government and AAP Government inherited that officer. What do you have to say?

Jaitley: I have no personal knowledge of these facts.

Jethmalani: Do you know that the search in question that took place was because some documents relating to the DDCA were expected to be found?

Jaitley: I had no prior knowledge of this raid nor have I ever been privy to the facts of this raid.

Jethmalani: Are you aware that the Delhi Government, ie government of defendant no.1, was contemplating the appointment of a commission of inquiry in respect of some matters connected with DDCA?

Jaitley: I had left the presidency of DDCA in 2013. In December 2015, I had no interest in the activities of this association nor I was keeping myself acquainted with all details. I did not know at the time of these allegations that Delhi Government was contemplating any commission of inquiry.

Jethmalani: Do you at least know whether any inquiry was ordered by AAP government, particularly its Deputy Chief Minister, about some matter connected with DDCA?

Jaitley: I am only aware from [the] media that some inquiry in the latter part of 2015 was ordered by Delhi Government with regard to DDCA. The said inquiry was headed by a serving bureaucrat. I also read in the media that that bureaucrat Mr Sanghi had written to the Home Secretary, Govt. of India, seeking a posting in the Govt. of India since the State Government felt offended by him for his having refused to name “a certain VIP” in the DDCA inquiry.

Jethmalani: Your knowledge was that acting on that man’s report the AAP government was thinking about appointment of a commission of inquiry. What do you have to say?

Jaitley: I was unaware of this fact when this plaint was filed. I was only aware through [the] media of the inquiry committee which was headed by this bureaucrat.

Jethmalani: Long after making the report, that bureaucrat became your friend. What do you have to say?

Jaitley: It is incorrect. I do not recollect ever having met him. It is wrong to suggest that I and my government did not like this report and we befriended him and my government asked him to go back from his report.

Jethmalani: Have you read the original report made by him till today?

Jaitley: Subsequently, I have read the copy of the report. I do not recollect who showed it to me. It is wrong to suggest that that bureaucrat himself showed his report to me.

DAY II

Jaitley: I know Mr Bishan Singh Bedi. I am aware that he was the captain of Indian Cricket Team. I have no personal animosity against Mr Bishan Singh Bedi but I cannot say whether he has any animosity against me. I do recollect that he once contested the DDCA President election against me and lost. He also actively campaigned against me in the Lok Sabha elections. By Lok Sabha election, I mean the election for the seat of Amritsar. It is correct that it was for the first time, I contested election for Lok Sabha from a territory outside Gujarat. It is correct that I have been a member of Rajya Sabha for three terms prior to my Lok Sabha election from Amritsar. It is correct that it was for the first time I was contesting election for Lok Sabha from Amritsar after my student period elections.

Jethmalani: Are you aware that I advised Mr Narendra Modi not to set you up as a candidate from the Amritsar seat?

Court observation: Question disallowed as it is irrelevant to the issues framed.

Jethmalani: Is it correct that it was for the first time that you put your reputation to the test in a public election in a democratic manner while contesting from Amritsar?

Jaitley: An election result is the outcome of several factors prevailing in the constituency and not merely a test of a candidate’s reputation considering that the defendant no.1 lost the same Lok Sabha election in 2014 by 3.5 lac votes. It is correct that I lost the Lok Sabha election from Amritsar by a margin of more than one lac votes. In 2014, I was a member of Rajya Sabha with 4 more years to go [in my term].

Jethmalani: Can you assign any serious reason for which Mr Bishan Singh Bedi made a complaint against you with the Prime Minister?

Jaitley: After he lost the election against me, the association of which I was the President, had appointed him as the Chief Coach of the Delhi [Cricket] Team for a period of three years. His appointment could not continue beyond that period. Nonetheless, I always continued to maintain the due courtesies that he deserved as an eminent cricketer.

I do not recollect if the Prime Minister had shown me the letter addressed to him by Mr Bishan Singh Bedi against me. In any case by the time the present Prime Minister was sworn in I had already severed my links both with the DDCA and BCCI. I do not recollect if I have read that letter as of now. I do not recollect if the Prime Minister had shown me the letter now marked D-1/A. (Objected to by the counsel for the plaintiff as the document is only a photocopy).

Jethmalani: Please go through the document marked D-1/A and tell whether the contents of the letter are correct or false?

Jaitley: This letter is written in 2015 even though I had ceased to be the president of DDCA in 2013. I strongly deny the contents of this letter in so far as they pertain to me. Neither as a minister nor as the leader of opposition, did I prevail upon any ministry or department of the government to do anything wrong or improper in relation to DDCA. As a minister in-charge of the Department of Company Affairs, I had told the respective secretaries of the departments at all points of time that no paper, file or issue or even question in Parliament related to DDCA should ever be put up before me. This instruction was scrupulously followed and the question of there being any conflict of interest does not arise since I was neither concerned with any cricket association nor was I dealt with any matter relating to it on the government side.

It is correct that the contents of the letter pertain to the period when I was the President of DDCA. To the best of my knowledge, the contents of letter marked D-1/A are untrue in so far as they relate to my tenure as the President of DDCA. When I ceased to be President, I wanted to sever all my links with the DDCA and the BCCI. The DDCA requested me to continue as its Patron-in-Chief, which is not an office-bearer with any function to perform. I continued for a brief period and somewhere in early 2014, I requested them to relinquish me of that designation, which also was done. It is correct that the Office of Patron-in-Chief is mentioned in the Articles of DDCA. But it has no function attached to this office. Off hand, I cannot say if this office has all the rights of a member of the Executive Committee of DDCA. I recollect some Patrons and Patrons-in-Chief when I was the President, who never attended the meetings of the Executive Committee of DDCA. I recollect having gone only once to attend the meeting of Executive Committee, and thereafter requesting them to relinquish me from the office of Patron-in-Chief). I can identify the Memorandum and Articles of Association of DDCA. The one set of the Memorandum and Articles of Association of DDCA is taken on record as identified by the witness as Ex. PW1/D- 1/1.

Jethmalani: I put it to you that you have attended several important meetings of the Executive Committee of DDCA as Patron-in-Chief. What do you have to say?

Jaitley: I do not recollect. I recollect having attended only one meeting of the Executive Committee as Patron-in-Chief.

Jethmalani: Now that you have read the letter marked D1/A, do you find any statement in it which makes you angry enough to take proceedings against Mr Bishan Singh Bedi?

An AAP demonstration asking for Arun Jaitley’s resignation

Court observation: Question is disallowed as witness cannot be asked what he intends to do after reading a document.

Jethmalani: I suggest it to you that the Prime Minister drew your attention to this letter, you had discussions with him and finally you told the Prime Minister that I will establish my reputation in the court against these allegations made against me in the letter marked D-1/A. What do you have to say?

Jaitley: The suggestion is wrong in its entirety. This letter which has been shown to me today is dated January 2015 and my libel action following the defendants’ statements against me is dated December 2015.

I had more than four departments under my charge when I became minister in 2014. But I had two major ministries under me. I [was put] in charge of Information and Broadcasting only towards the end of December 2014 when I relinquished the charge of the Defence Ministry. In May 2014, I was not in charge of Information and Broadcasting. As on today, I am minister in charge of Ministry of Finance and Corporate Affairs.

Jethmalani: I put it to you that you are allowed to continue as Finance Minister by the Prime Minister because of your promise to seek a judicial decision in your favour of the allegations made by Mr Bishan Singh Bedi. What do you have to say?

Jaitley: The suggestion is denied in its entirety.

I know Ms Madhu Kishwar. I do not think that she is a journalist. It is correct that Ms Madhu Kishwar made the statement already marked X-27 to Y-27 on Ex. PW1/5 on her own. I cannot say if she made this statement on Twitter on 17.12.2015 but it was around that period, and is a matter of record.

Jethmalani: The defendant no.1 had commented on this statement as serious allegation. What do you have to say?

Jaitley: Defendant no.1 has committed a serious act of libel through his malicious falsehood, falsely alleging that my wife and daughter are linked to fake companies. It was not only false but taking the public discourse to a very low level.

Jethmalani: The originator Ms Madhu Kishwar, you dare not sue. What do you have to say?

Jaitley: Many people on the social media make irresponsible statements about people in public life but when a Chief Minister endorses them, it becomes a grave and serious matter. Even false allegations gain credibility. Repetition of libellous statement gives me a cause of action against the person particularly if he has the stature to take action against the said person.

Jethmalani: You thought of suing Ms Madhu Kishwar and then decided against it. What do you have to say?

Jaitley: I never thought of suing her.

Jethmalani: I put it to you that the portion, now marked Z to Z-1 on Ex. PW1/5 at page no. 111, is a tweet of news channel ABP News. What do you have to say?

Jaitley: It indeed is a tweet of ABP News but I am personally unaware of any such meeting or its contents.

Jethmalani: I put it to you that the portion now marked Z-2 to Z-3 on Ex. on page no. 111 is a tweet of Mr. Bishan Singh Bedi, which was allegedly agreed to by defendant no 1. What do you have to say?

Jaitley: The tweet is indeed there. It no way concerns me because it refers to some developments of 2015 and I had ceased to be the President of DDCA in 2013.

Jethmalani: I put it to you that the portion now marked Z-4 to Z-5 on Ex PW1/5 on page no. 111 is a tweet of Mr. Bishan Singh Bedi, which was allegedly commented upon by defendant no. 1. What do you have to say?

Jaitley: The tweet is indeed there. It no way concerns me because it refers to some developments of 2015 and I had ceased to be the President of DDCA in 2013.

Jethmalani: I put it to you that the portion now marked Z-6 to Z-7 on Ex. PW1/5 on page no. 111 is a tweet of Mr. Sitaram Yechuri, which was allegedly re-tweeted by defendant no.1. What do you have to say?

Jaitley: The tweet is indeed there. It no way concerns me.

Jethmalani: I put it to you that the portion now marked Z-8 to Z-9 on Ex. PW1/5 on page no. 111 is a tweet of Mr Kapil, which was allegedly re-tweeted by defendant no.1. What do you have to say?

Jaitley: This is precisely why I have filed the present suit.

Jethmalani: The tweet at portion Z-10 to Z-11 allegedly of defendant no.1 on Ex. PW1/5 on page no.111 does not have any defamatory contents in it. What do you have to say?

Jaitley: This statement by itself is highly defamatory and when read in the context of statements of all defendants taken together, it seriously damages my reputation.

Jethmalani: The tweet at portion already marked X-29 to Y-29 on Ex. PW1/5 at page no. 114 is a tweet of Ms Madhu Kishwar, which was allegedly re-tweeted by

defendant no.1. What do you have to say?

Jaitley: The tweet is highly defamatory and repetition by a Chief Minister adds greater credibility to the falsehood contained in the tweet.

Jethmalani: The document now marked D-1/B is a Press Release by Mr Ghulam Nabi Azad, the leader of opposition in Rajya Sabha; Shri Mallikarjun Kharge, leader of Congress Party in Lok Sabha; and Shri Ajay Makan, senior spokesperson of AICC. What do you have to say? (Objected to by counsel for the plaintiff, as it is an unsigned photocopy document).

Jaitley: I do not have any knowledge of this document.

I am seeing the Press Release marked D-1/B for the first time today in the court.


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