Senior Lawyer Switching Sides

The Supreme Court recently asked senior advocate K T S Tulsi to withdraw from appearing for the CBI in the Sohrabuddin Sheikh encounter case, saying it was "not proper" for him to have accepted the brief after a stint as the Gujarat Government counsel in the same case.

The lawyer was the Gujarat Government’s prosecutor when the encounter was investigated by the police under Geeta Johri, an IPS officer from the state. Tulsi had regularly appeared before the apex court in this capacity, but chose to withdraw in December 2007 after Chief Minister Narendra Modi made reportedly disparaging comments justifying the 2005 encounter of Sohrabuddin during his election speeches. Modi had reportedly said he was proud that Sohrabuddin was killed in Gujarat and if the Congress felt bad, it should offer a chaadar ( flower woven bed-sheet ) at his grave.

Subsequently, the Supreme Court, unhappy with the police’s probe, in a judgement dated January 12, 2010 transferred the case to the CBI. In July 2010, Tulsi was back, this time as the CBI’s prosecutor.

Tulsi had then faced questions about "conflict of interest" to have a former Gujarat prosecutor plead the case for the CBI, and that too with some of the highest officials and politicians in the dock, with a simple answer: "If the CBI feels that there is no conflict of interest, then there is no problem."

During hearing, when asked about "conflict of interest" — and this time the question coming from the Supreme Court — the lawyer had a similar answer: "If the State Government has not objected, then there is no problem."

An unimpressed bench of Justices Aftab Alam and RM Lodha shot back: "The State Government might not have objected. But you have been a prosecutor for Gujarat, now you are a CBI prosecutor in the same case.

As a senior member of the Bar you should have set a standard."

Tulsi immediately agreed to withdraw while making the point that he "vigorously fights cases whichever side he is on."

"But it is not proper for you. Mr Tulsi, I hope you understand," Justice Alam reached out to the lawyer, who assured the court that he would bow out.

Senior advocate Ram Jethmalani, appearing for former Gujarat Home Minister and accused Amit Shah, drew the court’s attention to a sting operation aired by a TV channel showing Sohrabuddin’s brother, Naimuddin, and another key witness, Mohammed Azam, reportedly giving a clean chit to the politician. In the sting operation, Naimuddin reportedly claimed the CBI had forged his statement in the case and that he was never threatened by the State Government, as claimed by the CBI in an affidavit filed in the Supreme Court.

Similarly, Azam, a former aide of Sohrabuddin, in a separate sting operation, alleged that CBI framed Shah in the Popular Builders firing case.

Jethmalani pressed for the court’s permission to place on record an affidavit evidence which they have come across through the conversations in the sting operation. While Justice Alam expressed that he felt "a strong reserving sense about placing such things on record", Justice Lodha chose to be blunt. "Is there not enough material for you against the CBI? Why do you want to bring in all this unnecessary material? Is it not very onerous for you to bring in this material at this stage of such a political and sensitive case? Should we not allow this to reach a logical conclusion instead of adding material after material?" Justice Lodha asked.

"What we want is that CBI should not touch this case with a pair of tongs," Jethmalani countered, adding that the court can accept their affidavit for the moment and keep it reserved for hearing later.

In the past, I was present in the High Court of Gujarat in another matter when Amit Shah's bail application was heard in the court of Mr. Justice Rajesh Shukla who granted him bail. Mr. Tulsi was CBI lawyer vehemently opposing and selectively conceding the question of court whether he has independent witness than the former aid of Sohrabbuddin- Azamkhan to which he kept silence. Mr. Ram Jethmalani was for the Petitioner Amit Shah.