On His Majesty's Legal Service?

The A-G is meant to be a voice for the Constitution. Mukul Rohatgi’s score....
On His Majesty's Legal Service?
The Man
In his work attire
Photo by Narendra Bisht
On His Majesty's Legal Service?
outlookindia.com
2016-02-29T18:10:11+0530

If you came upon the Mukul Roha­tgi of the courtroom while walking down a lonely, dark alley, chances are you would turn tail and run. He is big, burly and menacing. In courtrooms, he has an imposing presence with his six-feet-something frame and a booming baritone to go with it. Quite the package to throw behind lawyerly declamations, and perhaps exactly the shock-and-awe qualities that help elicit a quick ‘stay’ or an interim order. That, many lawyers say, is where Rohatgi’s forte lies—obtaining quick relief for clients albeit at the price of an entry-level sedan.

But does a good lawyer necessarily make for a good attorney-general ? The opinion is divided. Some legal eagles hold that the attorney-general’s office is a constitutional post and he or she is essentially expected to uphold the Constitution and public interest. Others see nothing wrong in the A-G defending the government as a lawyer would ordinarily do for a client. Rohatgi himself (see interview) appears more inc­lined to see the A-G’s role strictly as the first law officer of the government. The letter of the law, much more than the spirit of the law, is what he puts his faith in.

“He is more of an interim order lawyer with a commercial practice. He is quick on his feet and understands judges but has no depth and is not jurisprudential. And a lawyer with a strong commercial veneer should never be appointed as attorney-general,” says a senior Supreme Court advocate who did not wish to be named.

He claims that within a single financial year, Rohatgi purchased two prime properties in Delhi, one in Sundar Nagar and the other in Golf Links. And within the next two years, another bungalow in Golf Links. These are expensive properties in some of Delhi’s poshest areas, often valued at hundreds of crores. “Would any top lawyer be able to pull it off?” asks the advocate. “Obvi­ously very high cash transacti­ons were involved and then the same lawyer beco­mes A-G and speaks for the government against black money and corruption.”

“The A-G is an institution. It must not reflect a partisan view. Even during Indira’s time, many held their own. Fali Nariman quit as ASG.”
K.T.S. Tulsi, Sr advocate

Jurist Ram Jethmalani had opposed Roh­atgi’s appointment as A-G, arguing in a letter to the prime minister that the position should not go to someone opposed to ret­urning black money to India—a promise to which he attributed the BJP’s 2014 electo­ral success. When the announcement was made after three weeks, two things were said to have gone in Roh­atgi’s favour. First, he had handled the 2002 Gujarat riots cases for the Gujarat government (when Modi was CM) at the Supreme Court and secondly, but more important, he was a close friend of Arun Jaitley.

“If someone portrays that (friendship with Jaitley) as the reason, then I can’t help it,”  Rohatgi responds with a shrug. Were the government to axe him, he would happily go back to his private practice, he says.

“He was the busiest lawyer the Delhi High Court had ever known. When he shifted from there to the Supreme Court, it took five lawyers to absorb his practice,” says Rohatgi’s long-time friend and solicitor Raian Karanjawala. “Judges always related to him because he would argue in a straightforward, forthright and forceful style. He doesn’t concede matters and tries to get something out of the judge. He will be firm and push the matter for his client.”

The long list of corporate clients he had can create doubt about where his best int­entions lie, something Jethmalani had pointed out in his letter. Soon after becoming attorney-general, he reportedly gave an opinion to the government concerning his former client Reliance Anil Dhirubhai Ambani Group. He had asked that instead of following litigation, and risking the consequent heavy interest payments, the government pay up the Rs 1,800-crore bill the company had drawn up after exiting the Delhi Metro’s Airport Express line. The UPA’s legal advisors had taken the same line. The Aam Admi Party had hotly oppo­sed this, citing “time and cost overrun, ope­rational incompetence, surreptitious changes in the terms of agreement and unilateral exit” by Reliance Infra.

“Rohatgi is intelligent but lacks deep understanding. On former private clients, even a single shred of doubt sets an irreparable precedence.”
Prashant Bhushan, Sr advocate

Another example where Rohatgi exerci­sed his independence of opinion—which he is said to do sparingly—is in advising the defence ministry not to blacklist Finmecca­nica, the Italian company that was charged with corruption in the Rs 3,600-crore VVIP chopper deal. He claimed the same group was working on projects worth Rs 30,000 crore to modernise the Indian army.  Thro­ugh his opinions, Rohatgi says he has tried to dissuade the government from exc­essive litigation. He often fails to carry that independence into the courtroom, though. “Rohatgi is definitely more the Union gover­nment’s counsel than A-G. In the National Judicial Appointments Commission case, when asked for his independent view, he said he was conflicted and would have to seek a comment from the government,” says senior advocate Rajeev Dhavan.

The loss in the NJAC matter was a heavy one for Rohatgi and will rem­ain a blot on his record. While arguing the case, he had even questioned the competence of former judges, citing the danger of “choosing the wrong man for the job”. Without taking names, he all­uded to a judge who reportedly delivered only seven judgments in his 1,300-day tenure (everyone in court knew the reference was to retired judge Cyriac Joseph). The government has not appointed a successor to former chief justice K.G. Balakrishnan as chairperson of the National Human Rights Commission and Justice (retd) Cyriac Joseph continues as acting chairperson.

Another lawyer who was present in court during the NJAC hearings says Rohatgi wasted a lot of time giving such illustrations while he should have been talking about the law. “Instead, he started discussing judges’ performance. The office of A-G is much more than ‘lawyering’. He shouldn’t reflect the government’s viewpoint but the letter and spirit of the Constitution. The synergy of the relationship between the A-G and the court is more aligned than that of the A-G and the government,” he feels.

Old Pals Rohatgi (standing, left) with FM Arun Jaitley, S-G Ranjit Kumar and others at Lodi Gardens. Photo by PTI

As a commercial lawyer, Rohatgi is used to relying mostly on client’s instructions. One of his former juniors says that till he was made additional solicitor-general (during NDA-I), his practice was centred around the busy Delhi High Court and he had hardly argued matters before the Supreme Court on constitutional issues.

“Rohatgi is definitely more the govt’s counsel than an A-G with independent views. (For a while now), A-Gs have been legal hitmen for the regime.”
Rajiv Dhawan, Sr advocate

The functional lack of independence of the A-G’s office is by extra-constitutional des­ign, of course. Free India’s first A-G, M.C. Setalvad, was probably the last truly independent legal advisor to the government. In 1963, then law minister Ashok Kumar Sen had wanted the office of the A-G merged with the law ministry. Nehru had supported the view in a letter to two MPs and the government circulated a pamphlet endorsing it. They went so far as to cite Setalvad’s failures in grasping the mind of the court (which had finally taken a view contrary to one of his opinions).

Since then, most A-Gs have played to the government’s demands. Niren De had said that the indisputable right to life could be suspended during the Emergency, a view that had originated from the government of the day. Another A-G, Milon Banerjee,  had opined that Mayawati was not guilty in the Taj Corridor case when the Congress needed the BSP’s support for UPA-I.

“Since the time of K. Parasaran, A-Gs have been legal hitmen for their governments,  as we saw in the Bhopal case, which was compromised. G. Ramaswamy (1990-92) was almost certainly a hitman for his governments. Soli Sorabjee, A-G for the Janata government, later became A-G for NDA-I. He embarrassed himself during the Babri Masjid case where he’d earlier made arg­uments for the Muslims but later pleaded for a change in the order on behalf of the government. Milon Banerjee did good opinion work but did not appear much in court. Vahanvati was capable of independence but got involved in too many crises, which clouded his reputation,” says Dhavan.

“One of the problems is that no A-G wants to be a pauper. One A-G used to appear in tax matters that were then adjourned. There were other A-Gs who liked to appear for state governments and government cooperatives from whom they could charge a phenomenal fee,” he recalls.

“As an advocate, he was the busiest the Delhi HC had ever known. When he shifted to the SC, it took five lawyers to absorb his practice.”
Raian Karanjawala, Sr advocate

It is difficult to rule out conflict of interest, by omission or commission, with a lawyer who has had such a long list of corporate clients. Scroll.in reported that Rohatgi had appeared for a Welspun group company in an appeal aga­inst a Rs 861-crore customs duty evasion case in 2013 before the SC. It had sent it back to the lower forum. The government lost the case and finally app­ealed to the Supreme Court in 2014. This time, Rohatgi appeared as A-G and the appeal was dismissed. But he claimed there was no conflict of interest though he had appeared for the other side earlier in the same case. It is no secret that Welspun owner B.D. Goenka is close to PM Modi.

Rohatgi often makes headlines when he cites legal precedents in support of the BJP government in court. On Aad­har, he said the right to privacy was not a fundamental right. Even if that is the law, as A-G he could have considered establishing a counterview in public interest in a post-Snowden era where there is no protection for Indians from official mass surveillance.

Not surprisingly, the media has often been critical of his comments—and sometimes so are judges. Karanjawala says 25 years ago the courts were much more measured in the way they looked at the government. “The courts today are far more activist and robust than back then. The newspapers were more muted in the way they reported things than they do today. The judge-lawyer discourse is much more in the public domain than it used to be. Judges may have said the same thing to Setalvad but you wouldn’t hear of it because it wasn’t reported back then,” he says.

Outlook interviewed several senior advocates and a number of retired SC judges, most of whom refrained from going on rec­ord. Only a few questioned Roh­atgi’s integrity. Most felt that when judging Rohatgi as an A-G, he must be compared with the likes of former A-Gs such as Setalvad, L.N. Sinha and C.K. Daphtary.

Rohatgi is admired within the legal fra­ter­nity but is dragged into controversy on occ­asion. In 2014, he donated to the Supreme Court bar’s library. The bar association decided to rename the library after Rohatgi’s father, replacing that of the late L.M. Singhvi, father of the previous benefactor and senior advocate, Abhishek Manu Singhvi. It led to a spat between the two.

According to Rohatgi, he chose to follow in the footsteps of his father, Awadh Behari Rohatgi. “My father started as a lawyer in 1947 and was also a part-time lecturer of law in Delhi University. He practised till 1972 when he was elevated to judgeship. I’ve always been in a lawyer’s house and since I grew up in that atmosphere, I tho­ught it was natural to go into the profession, though my father was the first in the profession. My grandfather was a cloth merchant but he educated all his children. Some of my uncles were the earliest Indian doctors in Delhi—in the 1930s,” he says.

Rohatgi went on to study at Government Law College, Mumbai, where he developed a close friendship with Karanjawala and Anip Sachthey. Back in Delhi, the three added Jaitley and Delhi HC lawyer Rajiv Nayyar to their circle. Since then, they have ritualised a Saturday lunch. “With Arun, one always thought he would go places. But then none of us thought we would reach the heights we have,” says Karanjawala, adding, “Mukul’s father was the greatest influence in his life and was an example for the discipline and hard work we see in Mukul.”

The progress from junior lawyer to senior counsel, to ASG, offer of jud­geship and now to A-G is considered gradual progress by his friends. During practice, Rohatgi was accommodating and could be approached as late as 10 am before court. With just a short briefing, he would appear in court and get an order. He is also known to be fair and generous at a personal level. Should that be more pronounced in his approach to considering public interest and enlightened legal thought in his work?

***

The Attorney General’s Tunnel Vision

  • Aligarh Muslim University He said the AMU is not a minority institution—that a secular state cannot set up an institution for a community. The view is being hotly contested. The issue is before SC.
  • Yakub Memon His emphatic opposition to pleas for commuting the death sentence left human rights activists disappointed. He firmly believes it’s not appropriate to do away with death penalty.
  • Judiciary On some issues, he is flexible. He argued, for example, the judiciary or executive cannot disqualify a person forever because of some adverse remarks by a court against a public prosecutor.
  • Right to privacy Citizens, he believes, have no fundamental right to privacy. Absolute privacy, he argues, is a utopia and cites the fact that even Facebook can snoop on people using the platform.
  • Finmeccanica His considered opinion led to a lifting of the ban on Finmeccanica and other foreign suppliers of defence equipment. India, he argued, could not afford to delay modernisation of its forces.
  • Judicial Activism A long critic of it. “Alignment of roads, nursery admission, medical admission, the speed at which buses should ply...” he sees no reason the SC should be judging on matters like these.

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