Attorney General of India

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Political controversies


Dhananjay Mahapatra, Political controversies have not spared office of attorney general, March 18, 2019: The Times of India

Irrespective of the party in power, governments invariably choose seasoned advocates for the post of attorney general for India. The AG holds office during the pleasure of the President, enjoys a unique position in the constitutional framework and is the only lawyer bestowed with the right of audience in all courts.

Apart from parliamentarians, only the AG has the right to speak in, or take part in the proceedings of, either House of Parliament, or any joint sitting of the Houses, and any committee of Parliament of which he may be named as a member, though without voting right.

In addition, the AG alone is empowered to either set in motion or sanction initiation of contempt of court motion against a person in the SC. He is also an ex-officio member of the Bar Council of India. He is regarded as the leader of the bar.

In B P Singhal case [2010 (6) SCC 331], the Supreme Court had ruled that the AG holds a public office. It had said, “Though AG holds a public office, there is an element of lawyer-client relationship between the Union government and the AG.”

Since the turn of the century, the AG’s office had been occupied by eminent lawyers Soli J Sorabjee, Milon K Banerjee, G E Vahanvati, Mukul Rohatgi and incumbent K K Venugopal. Given their immense knowledge of law, Constitution and experience in litigation, their opinion is often sought by the Union government in complex politico-legal issues.

As Article 76 of the Constitution says, “It shall be the duty of the AG to give advice to the government of India, upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President (read government).”

It is no coincidence that controversies enveloping the government have often featured as litigation in the SC and other constitutional courts. The government relies on the AG to defend it in such tricky hearings where one wrong sentence could entail heavy consequences. In the process, AGs at times have found themselves singed.

In defending Indira Gandhi government’s draconian preventive detention procedure under Maintenance of Internal Security Act (MISA)

during Emergency, then AG Niren De’s statement continues to be a blot on the office of AG. The SC, during the hearing in ADM Jabalpur case, was testing validity of decisions by seven high courts — Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan — ruling in favour of those jailed under MISA.

A SC constitution bench in Jabalpur case [1976 SCR 172] by four to one majority (Justice H R Khanna dissented) accepted a legal and constitutional howler from De, who argued, “The effect of the suspension of the right of a person to move any court for the enforcement of the right conferred by Article 21 is that even if the order for detention has been made without authority of law, no redress can be sought from the court against such detention order”.

Things remained sedate in court for AGs from the 1980s till the turn of the century, when Sorabjee was at the helm of affairs during the Vajpayee government. Then law minister Ram Jethmalani veered away from the government’s stand before the SC on Sri Krishna Commission report and said the Centre would consider imposing President’s rule in Maharashtra if the state government initiated prosecution against then Shiv Sena supremo Bal Thackeray.

Then CJI Adarsh S Anand took strong objection to the law minister’s statement and inquired from Sorabjee why the government was speaking in different voices. The CJI’s annoyance was enough for the Vajpayee government to force Jethmalani to resign. A riled Jethamalani went straight for the throats of Sorabjee and Arun Jaitley, holding them responsible for his ouster, and raised a stink.

When Milon Banerjee was AG, he had a perfect understanding with then law minister H R Bharadwaj. During his tenure, his legal team member, additional solicitor general Bhagwan Datta, was assigned to go to London and coordinate with Crown Prosecution Service to facilitate defreezing of Ottavio Quattrocchi’s bank account, into which Bofors deal kickback money was allegedly paid. Dutta told the Crown Prosecution Service that there was no evidence to link the account to Bofors kickback.

Vahanvati providentially escaped ignominy in the 2G spectrum allocation scam. Nevertheless, he became the first AG to appear as a prosecution witness in the case for being allegedly tricked into giving all the clear signal on the basis of a forged press release that changed the ‘first come first served’ spectrum allocation ground rule.

Rohatgi didn’t get mired in any controversy but his belligerence, reflecting the NDA government’s firmness on National Judicial Appointments Commission (NJAC), did not go down well with the judges and there was palpable uneasiness in the relationship between the political executive and the judiciary.

His successor Venugopal, towards the fag-end of his two-year term co-terminus with that of the NDA government, found himself clarifying his argument in the SC on Rafale deal. We all heard him saying “these documents were stolen from defence ministry either by public servants, present or past”.

When the SC asked what the government had done so far, he said inquiry was on and criminal action would be taken. During the hearing, he graciously clarified that the government would not take any action against journalists or lawyers.

However, when Congress chief Rahul Gandhi poked fun at ‘documents being stolen’ with a “gayab ho gaya” jibe, the AG was at pains to clarify that he did not mean to convey that the documents were stolen. Venugopal said what he meant was that photocopies of original defence documents marked ‘secret’ were used by the petitioners. Do the argument in the court and the official clarification sound the same?

Whichever party be in government, the AG’s exalted office is increasingly getting singed in the collateral political fire.

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