Mukul Rohtagi’s announcement that he was turning down an extended term as the Attorney General of India has fuelled intense speculation in political and legal circles.
On 3 June 2017, the Department of Personnel and Training brought out a notification extending Rohatgi’s tenure as AG, until further notice. A week later, Rohatgi wrote to the government, stating that he wanted to return to "private practice” instead.
Historically, it is a decision without precedent, barring the 12th AG Milon K Banerji, who died during his term, and the 8th AG G Ramaswamy, who quit over corruption allegations. Rohatgi, a well-known Supreme Court commercial lawyer who is seen as being close to Finance Minister Arun Jaitley, was appointed the Attorney General for a three-year term in June 2014 – a month after the Modi government was elected.
So what went wrong?
In Supreme Court corridors, speculation ranged from a perceived snub – when the government decided to choose Harish Salve at the International Court of Justice (ICJ) – to murmurs of a government unhappy with handling key cases, and Rohatgi being “miffed” with the ad-hoc extension given by the government.
While a decision about the new AG is awaited, Rohatgi’s significant decision merits a closer look. A deep dive into Rohatgi’s eventful three-year tenure points to the reasons for his exit – his landmark cases, questions over conflict of interest, the controversy surrounding his appointment and how the position of Attorney General has transformed over the years.
What Were the Landmark Cases Argued by Rohatgi?
The National Judicial Appointments Commission (NJAC) case in Supreme Court in 2015 and the government’s stance in the case are widely perceived to be a big loss in Rohatgi’s career as AG.
The Supreme Court struck down the NJAC Act and the 99th Constitutional Amendment as “unconstitutional and void.” Under the Act, politicians and civil society would have had a significant role in appointing judges, as opposed to a collegium system of appointing judges.
As Attorney General, Mukul Rohatgi was asked for his opinion on the Constitution. But as Ushinor Majumdar writes in Outlook, Rohatgi spent time arguing about judges’ incompetence and was perceived by fellow lawyers to reflect the government’s point of view in his arguments. This is significant, as conventionally, an Attorney General is expected to provide an independent opinion based on his or her knowledge of the Constitution.
Interestingly, Rohatgi worked mainly as a commercial lawyer in the Supreme Court, with little experience arguing on Constitutional matters. After the NJAC Act was struck down 4:1 by a five-judge bench, Rohatgi told the press,
It is a flawed judgement ignoring the unanimous will of the Parliament, half the State Legislatures and the will of the people for transparency in judicial appointments.
But NJAC appears to have proved a case that will haunt 61-year-old Rohatgi’s career as an AG, with whispers of his performance in the case reappearing after his request to not extend his tenure as AG.
The next big loss for Rohatgi came in 2016 when the Supreme Court challenged the Centre’s decision to impose President’s Rule in Uttarakhand.
The Centre had imposed President’s Rule in the state in March 2016, which was set aside by the Uttarakhand High Court in April 2016. Mukul Rohatgi was representing the Centre and had argued that the President’s rule was imposed because of corruption allegations against then-Chief Minister Rawat. As elections were declared in Uttarakhand, it became clear that Rohatgi was unable to defend the order to impose President’s Rule in the state.
Even in critical cases like the Supreme Court verdict on Aadhar-PAN card and Income Tax returns, where Mukul Rohatgi argued the case for the government with relative success, his arguments weren’t received favourably by the public.
Specifically, his argument that citizens cannot claim “absolute right” over their bodies appeared to negatively impact public perception about the government’s position on Aadhaar.
Was There Conflict of Interest in Rohatgi’s Tenure?
Rohatgi’s tenure has been marked by allegations of conflict of interest; stretching as far back as his appointment as AG in 2014. At the time of his appointment, Rohatgi was a successful commercial lawyer, counting Anil Ambani as one of his clients. It was in this context that former Union law minister Ram Jethmalani wrote a letter to Prime Minister Modi saying Rohatgi’s background as a corporate lawyer “can create a doubt about where his best intentions lie”, as reported in Outlook.
A 2014 case highlighted concerns over Rohatgi’s conflict of interest in a prominent manner. Welspun Corporation Ltd had been fighting a custom duty evasion case of Rs 861 crore since 2006 when the company filed a special leave petition in the Supreme Court in 2013. Their lawyer? Mukul Rohatgi, representing them in private capacity.
Fast forward to 2014, when Mukul Rohatgi was a newly-appointed AG. After the apex court disposed the special leave petition, the matter came back to the Supreme Court as a civil appeal filed by the government. Rohatgi now appeared on behalf of the government. When asked by Scroll.in, Rohatgi responded that the Special Leave Petition (SLP) was a different case from the civil appeal case and so not in contravention of the Bar Council of India Rule against a lawyer arguing for two sides in the same matter.
In 2015, Rohatgi represented Kerala bar owners in their appeal against a Kerala High Court order, which upheld the government’s policy confining bar licences to five-star hotels. A petition was filed in the Supreme Court by an NGO pleading that the AG should not be arguing for private parties during his tenure. This was dismissed by the Kerala High Court, which said as quoted in Live Law.in,
As long as there is no conflict of interest can he not appear for private parties? No, we cannot intervene in the matter and issue any orders. It is for the government to take a stand on such matters
Wait, What’s the Role of an Attorney-General?
From an independent legal advisor to the government, who is supposed to act as a bridge between the President and the courts, the A-G has gradually become akin to the Centre’s lawyer. This intersection of politics and judiciary, a hallmark of Rohatgi’s career, is the larger question raised by his exit.
According to Article 76 of the Constitution, the duty of the Attorney-General is to “give advice to the Government of India upon such legal matters” and “to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.”
However, historically AGs have been instrumental in political decisions and are viewed as being partial to the political dispensation during whose tenure they are appointed.
In fact, former law minister Ashok Kumar Sen wanted to merge the office of the AG with the law ministry in 1963. During the Emergency, the then-A-G Niren De argued that the “rule of law existed only within the four corners of the Constitution and that natural rights did not exist outside it.” Similarly, former AGs like Milon Banerjee and Soli Sorabjee also aligned their publicly expressed views with the respective governments they worked with.
In a similar vein, senior advocate Rajeev Dhawan, a Commissioner of the International Commission of Jurists, commented on Mukul Rohatgi in a report in Outlook and said, “Rohatgi is definitely more the Union government’s counsel than an AG. For a while now, AGs have been legal hitmen for the regime.”
So, when the role of an AG has transformed from an independent advisor to reflect the will of the political regime, does Mukul Rohatgi’s refusal of an extension indicate unhappiness in the government over the way he handled cases?
“I will come to the aid of the government as long as I live.”
That’s what Mukul Rohatgi said on 11 June 2017, clarifying to PTI that his decision not to seek reappointment should not be considered as his resignation, since his term is due to end. Meanwhile, Union Law Minister Ravi Shankar Prasad has said that Rohatgi’s request to be relieved from AG’s post has been received, and it looks like a new AG is in the offing.
When asked about his response if Prime Minister Modi insists he continue, he said, “I will cross the bridge when it comes.”
What remains to be seen is whether it’ll be a bridge of reconciliation or political differences.
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