Prashant Bhushan Case: SC Can Ignore AG Venugopal at its Own Cost

In the contempt case hearing in SC, an important person who has been sidelined in the process is AG KK Venugopal.

Published
India
5 min read
In the contempt case hearing in the Supreme Court, an important person has been sidelined in the process, the Attorney General KK Venugopal.
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In the contempt case hearing in the Supreme Court while the focus has remained on Justice Arun Mishra, the Judge presiding the Bench, and convicted lawyer Prashant Bhushan since last one week, another important person has been sidelined in the process, the Attorney General KK Venugopal.

The way the highest law officer of the country has been treated by the Bench has drawn much criticism from the legal luminaries.

Both Supreme Court Contempt Rules 1975 and the Contempt of Courts Act 1971 mandate approval from the Attorney General before any petition is accepted by the court for proceedings against criminal contempt. In Prashant Bhushan’s case, even though the original petition by one Mahek Maheshwari did not have prior approval from AG Venugopal, this was not rejected at the outset.

After it was questionably considered on the administrative side despite this, the court took it up as a suo motu case. Hence, it was no longer a precondition to hearing the case. However, what was surprising was that the bench of Justices Arun Mishra, BR Gavai and Krishna Murari did not hear the opinion of the AG Bench when the main hearings on contempt were being conducted – even though the judges had issued notice to the AG and asked him to be present during the hearings.

During the quantum of punishment hearing on 20 August, the Attorney General was present once again, having been issued a notice. But even then, he was hardly allowed to submit his observations during the arguments which continued for around five hours.

Towards the end of the argument when he was allowed to submit his views, he was cut short as the Bench was not hearing on ‘the merits of the case’. Attorney General KK Venugopal submitted that he has a list of five judges of SC speaking of threats to democracy and another nine who had spoken of corruption in the higher judiciary – but before he could complete his arguments, Justice Mishra interrupted him saying ‘we are not hearing on the merits’.

Article 76(3) of the Constitution mentions the Attorney General ‘shall have right of audience in all courts in the territory of India’. The presence of Attorney General has been mandated to assist the court with his valuable opinion in delivery of justice. But the official written order on the quantum of punishment hearing did not even record the views of the Attorney General during the hearing on 20 August. This was later stated to be an administrative error.

Though Venugopal did not assert his position as the chief law officer, he spoke for Prashant Bhushan, submitting before the Bench that he should not be punished as the convicted lawyer has done ‘tremendous amount of public good’. But Justice Mishra refused to accept the request of Venugopal as Bhushan did not reconsider his statement.

If the court again assembles on 25 August to decide on the quantum of punishment for Prashant Bhushan, whether the Bench would listen to the Attorney General’s views and not punish Prashant Bhushan, will be a test for the image of the court.

The Attorney General assists the court with his views on delivery of justice. KK Venugopal is a highly respected lawyer and an authority on constitutional law in the country – many in the legal profession believe it would be in the interest of the court to consider his views in Prashant Bhushan’s case.

KK Venugopal may not have thrown his weight around as the highest law officer of the country, but his humble demeanor should not be construed as a weakness. In a career spanning over seven decades, he has held the floor in many difficult and sensitive cases, handling them with great dignity.

An Advocate of Judicial Reforms

KK Venugopal, who started his career as a lawyer in 1954, has been a supporter of judicial reforms in India. On several occasions he offered suggestions on various forums to improve the functioning of courts.

In December 2018, he expressed his disapproval of the Supreme Court’s usage of the concept of Constitutional morality while referring to Sabarimala judgment. He had said that unless constitutional morality “dies”, Pandit Jawaharlal Nehru’s fear that SC would become the third chamber of Parliament might come true while delivering an address at the Second J Dadachanji Memorial Debate.

In August 2019 on the question of increasing burden of cases on higher courts, the eminent lawyer detailed the idea of establishing final courts of appeal in the four metros of Mumbai, Chennai, Delhi and Kolkata.

In November 2019 he came out with a suggestion to fix the tenure of the Chief Justice of India for at least three years and increase the age of retirement as the short tenures prevent CJIs from carrying out reforms and making big changes.

In May 2020, delivering the NR Madhava Menon memorial lecture and commenting on the power of the Supreme Court, Venugopal said “in many cases, the Supreme Court has exercised power which is not judicial adjudication or judicial activism”.

Defended Politicians Across Party Line In High Profile Cases

KK Venugopal, who was designated as a senior advocate of the Supreme Court in 1972, has fought some historic cases and defended politicians from across the political parties in the Supreme Court.

In 1976 he fought the case for M Karunanidhi against the dismissal of Tamil Nadu’s DMK government.

He was also instrumental in convincing the Supreme Court to stay the implementation of the Mandal Commission to stop an escalation in student violence.

Venugopal had represented AB Vajpayee and LK Advani when they were arrested during the Emergency. He also appeared for the then Kalyan Singh government in Uttar Pradesh by assuring the Supreme Court that the disputed structure of Babri Masjid will be protected.

When on 6 December 1992, the structure was brought down by karsevaks, he had appeared before a bench of then Chief Justice M N Venkatachaliah.

During the UPA regime also he appeared in the Supreme Court for some high profile cases. He was also the amicus curiae to assist the Supreme Court in the 2G spectrum scam case.

He appeared for P J Thomas when his appointment as the Chief Vigilance Commissioner was challenged.

In 2008, Venugopal had also appeared for then Tamil Nadu Chief Minister J Jayalalithaa in the Sethusamudram case.

As the Attorney General for India, this doyen of the Bar has also successfully defended the Modi government in the Supreme Court in several crucial matters, including the Rafale case in late 2018.

He has also argued a number of cases involving key Constitutional principles, from the Aadhaar case to the dilution of Article 370, going toe to toe with the other heavyweights of the Bar.

Rise As The Most Reliable Lawyer

Born in Kerala in 1931 as Kottayan Katankot Venugopal he started his career as a lawyer from Mysore, in 1954, having studied law at Raja Lakhamgouda Law College in Belgaum.

Subsequently, he practised at the Madras High Court in Chennai for 25 years before moving to Delhi in the 1960s.

Venugopal’s farther, MK Nambiar was also a renowned lawyer, who fought the historic AK Gopalan versus the State of Madras case.

Venugopal was appointed additional solicitor general in 1979 during the Janata Party government. He was appointed as the 15th Attorney General in July 2017, a longcherished ambition of the veteran lawyer.

Venugopal, a recipient of the Padma Vibhushan and Padma Bhushan awards was also the president of the International Association of Lawyers from 1996-97.

(The opinions expressed are the author’s own. The Quint neither endorses, nor is responsible for them)

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