Public money cannot be used to defend Kejriwal: Law officer to LG

New Delhi: Public money cannot be used to defend Chief Minister Arvind Kejriwal for statements made in his personal capacity against Union minister Arun Jaitley, a senior law officer has advised Delhi's Lt Governor Anil Baijal.

The legal opinion by the law officer was tendered in response to several queries by the lieutenant governor on whether statements by Kejriwal against Jaitley were in his official capacity and should a special lawyer be provided to the chief minister at the expense of the state exchequer.

Replying to both the queries in the 'negative', Additional Solicitor General (ASG) Sanjay Jain has said the statements made by Kejriwal on his personal Twitter account "have no connection" with his official or public duties and were "distinctly in his individual or personal capacity".

The ASG, in a 14-page opinion, has also said that under the Constitution, "it is impermissible to use public money for a private purpose" and since Kejriwal was being sued in his individual capacity, "public money cannot be used to defend the chief minister for his statements made in his personal capacity".

He has advised the LG to not approve the proposal for appointment of senior advocate Ram Jethmalani to defend Kejriwal and pay the lawyer out of the government coffers.

"The position of a chief minister or for that matter as government servant is that of a trustee of public money. Public money can spent only in accordance with law and procedures prescribed and must ensure the highest level of financial discipline," the ASG has said.

Jethmalani (93) has been representing Kejriwal in the civil defamation case filed by Jaitley in the Delhi High Court against the chief minister and five other Aam Aadmi Party leaders over allegations of corruption when the Union minister was the president of the Delhi and District Cricket Association (DDCA) from 2000 to 2013.

Jaitley, who had denied the allegations levelled by the AAP leaders in December 2015, had filed the suit seeking Rs 10 crore as damages from Kejriwal and the other five, claiming they had made "false and defamatory" statements in the case involving DDCA and harmed his reputation.

According to the suit, Kejriwal and other AAP leaders -- Raghav Chadha, Kumar Vishwas, Ashutosh, Sanjay Singh and Deepak Bajpai -- had accused Jaitley and some of his family members on various fora, including the social media, of alleged irregularities and financial bungling in the DDCA.

Jaitley had also lodged a criminal defamation case against them in a subordinate court where the proceedings are on.

As per the opinion sent to the LG on April 6, Kejriwal had "opted to comment upon the affairs of a society (DDCA) and its erstwhile office bearer, which is not called upon to be so commented in the ordinary course of his executive or administrative functions".

The LG had sought the ASG's opinion after Deputy Chief Minister Manish Sisodia had proposed engaging Jethmalani to defend Kejriwal after the civil and criminal defamation cases were filed against him.

As per the terms of engaging Jethmalani, the veteran criminal lawyer was to be paid a retainer fee of Rs one crore and an appearance fee of Rs 22 lakh per court visit, according to the legal opinion.

This proposal, however, was objected to by the law and the general administrative departments for not having prior concurrence of the finance department or the LG's approval.

Sisodia, had, thereafter, issued a standing order (SO) regarding the appointment of special counsel to represent the Delhi government.

As per the SO, the prior concurrence of the finance department and approval of the LG was not required for appointment of special counsel and for payment of their fee.

The LG had sought the ASG's opinion on whether the SO was in compliance of the Transaction of Business Rules (TBR), GNCTD Act and relevant provisions.

On this, Jain has said that the SO had to be approved by the council of ministers and then the LG as it would have an effect on the finances of Delhi, but this procedure was not followed.

He has also said that the SO was issued in order "to circumvent the law department observations that prior concurrence of the finance department and approval of the LG would be required" for appointing Jethmalani.

The law officer has further said that as per the file notings placed before him, the ministers concerned who sanctioned the appointment of Jethmalani and payment of his fees "have acted in wanton disregard" of the TBR, the Delhi High Court verdict holding that the LG's approval was required in administrative decisions and various office memorandums pertaining to appointment of special counsel.

"The machination of trying to usurp the powers of the finance department and the LG clearly show a blatant violation of established norms, rules, rulings as well as the procedures envisaged under the Constitution of India," the ASG has said.

He also said the elected (AAP) government "unilaterally proceeded to allow disbursement of public funds for providing fees to Ram Jethmalani without placing the file before the LG or obtaining the requisite approval."

"In light of the facts and circumstances, in my opinion public money cannot be used to appoint special counsel to defend the chief minister for the statements made by him in his personal capacity and the proposal to this effect should not be approved by the LG," he has said.