• Prashant Khurana, Kamya Vishwanath

Interview with Prof. Khagesh Gautam - Part 1

In early January 2019, an article was published in The Indian Express newspaper elucidating a nuance on the position of the Attorney General for India that is little-known or discussed outside law classrooms. The trigger for the article were certain comments made by the incumbent AG KK Venugopal, on the Sabrimala judgement of the Hon'ble Supreme Court. Despite the relatively little public discussion on the subject, it is of profound importance to the larger narrative on institutional preservation. We decided to reach out to one of the co-authors of that article, Professor Khagesh Gautam to discuss the office of the AG, its parallels with other democracies, and its evolution in India.

Mr. Khagesh Gautam is an Associate Professor of Law and Assistant Dean (Research and Publications) at Jindal Global Law School, India. He received his LLM from Columbia Law School, United States, as a Stone Scholar in May 2013. Prof. Gautam also holds an LLB from Campus Law Center, University of Delhi, and a B.Com from Kurukshetra University, India. He holds vast experience in litigation on Constitutional and Tax Law, with an illustrious record of practice - particularly, before the Punjab and Haryana High Court. Notably, Prof. Gautam authored three papers on these subjects that were published by the prestigious journal of Value Added and Service Tax Cases.

In Part 1 of this 2 Part interview, we attempt to further understand the arguments made in his article, while getting a broad strokes analysis of the position of the Attorney General for India, as envisaged in India's Constitution. In Part 2, we discuss comparisons of the office with other democracies, and the historical evolution of the office in India - particularly, during the Emergency of 1975, and the landmark constitutional cases of that time.

1. For the benefit of our readers, could you first lay out the general scheme of the Constitution of India with regards to the institution of the Attorney General, along with the powers and privileges of the office?

Ans. The AG’s office in our system is quite different from what is found in other parliamentary systems. In UK, and Australia, for instance, the AG is a part of the cabinet. Therefore, the AG serves so long as the Cabinet enjoys the confidence of the legislature. But, in our system, the AG is appointed, per article 76(1), by the President; and per article 76(3) has a right of audience in all courts of India; and per article 88 has a right of to address the Parliament as well without being its member. Therefore, his role is more akin to that of the Solicitor General in the United States, because even in the US, the AG is a part of the Cabinet. To that extent, the position of the AG in India is unique, because he/she is appearing in courts for, and giving advice to the government whenever it is sought.

His most important privileges, in my opinion are:

  1. A so-called preferential audience in courts. For instance, if the AG, and say the Advocate-General of Maharashtra, are appearing in a court together for one side [and both the Union of India and State of Maharashtra are respondents in a case before the Supreme Court], then the AG will get the first right of audience.

  2. The AG can also address the Parliament, without being a member of either House of Parliament.

It is important to note, however, that the AG serves at the pleasure of the President, which effectively, is the pleasure of the Prime Minister, and sometimes, the Cabinet.

2. Your Indian Express article begins with a reference to some statements made by the AG with regard to the Sabrimala Case. For the benefit of our readers, could you illustrate why those remarks were particularly problematic?

Ans. The AG made some remarks about the particular method of interpretation being used by the Supreme Court, where the AG personally believed that it was not the appropriate method of reading the Constitution. Without going into a critique of whether it is an appropriate method or not, which is a debate that is ideally left for the pages of a law review, and enough people will write about it in the days to come; also, discounting the fact that if it is the AG’s personal opinion, because I believe that a caveat to that extent was not present. The statement that he made – it is quite possible to read that statement in a political colour, on the ground that there are certain decisions of the Supreme Court, that are perhaps, politically unacceptable, or politically undesirable to certain elements of the current political class. That, [in isolation] is fine – many times the decisions of the Supreme Court are not acceptable to the politicians but the Constitution is what the Supreme Court says it is and that is a rule of the game that nobody breaks. It is a part of the basic structure of our Constitution – the independence of judiciary and separation of powers. Without the bounds of these unbreakable rules that are necessary for republicanism to prosper, the legal debate on what is the proper way to read the Constitution can, and must, continue – in law reviews, in newspapers, in public. But the highest law officers of our country should try not to get involved in debates where it is not what they say but the political motivation behind what they say becomes important.

Separating law and politics is a very difficult question. People have been thinking and writing about it for a long time. Where does law end and politics begin? Nobody quite knows for sure. But when we proclaim ourselves to be democratic republic based on the idea of rule of law we should take care to subject as much of politics to law as humanly possible.

Attorney General for India, KK Venugopal.

It’s a completely valid question, as to whether a particular method of reading the constitution is a valid one or not. It is also absolutely valid to question whether the decision of a court in a given case is valid or not. It is also completely acceptable to criticize a decision of the court, or the method used to arrive at the said decision. They are all acceptable. However, in the facts and circumstances of this case, certain critiques have – simultaneously – a legal, as well as a political color. A political critique of a court decision coming from a politician is understandable, and expected even in some cases within good taste and reason, but by the same logic from a law officer should come a legal critique of the same. So one has to be very clear about the motivation that is behind that critique. The motivation in this case was not very clear. It is completely possible to attribute that statement to political motivations, and to legal ones. That too, when a case is pending in the court. Further, the method of interpretation used by the court in this case is a method that the court also used in some other cases. It is also going to be used in the future. Which case is appropriate for that method is for the court, and the lawyers assisting the court, to decide. Those are legal discussions that our legal profession (including law professors, judges, and lawyers) are completely capable of having. Which method of reading the constitution is better than the other one is a question that has a certain element of politics in it. If you want to decide whether ‘originalism’ is a better method, or the ‘living-tree’ method – you have to ask ultimately some political questions to yourself. That’s why it is so hard to draw the line between law and politics. I suppose the AG can’t afford that luxury. There is an element of sacrifice where the AG must keep his politics aside (because to presume that the AG does not have political views is to make a presumption against human nature – we all have political views and we should). That is why we chose a very senior, very wise, almost grandfatherly figure to offer wise and balanced counsel to the government as our AG.

3. What is the basis of your argument concerning the autonomy of the office of AG from the Executive? Is there any mechanism to delineate this autonomy from the more conventional functions that the AG has to perform?

Ans. Politically there isn’t. We can talk ourselves in circles about the law, and the Constitution. This is because, even if the AG is not a member of the Cabinet. At the end of the day, the AG has to take instructions from the Government, which on occasion might be from a Minister directly. To that extent, how do you politically insulate the office of the AG? Legally, I think you can have a bunch of laws, but at some point of time it’ll get discretionary, and then it would depend on the character of the people holding the office. However, the Constitution clearly says – and as I, along with my co-author Prof. Raj Kumar [Founding Vice Chancellor, OP Jindal Global University, C. Raj Kumar], have written in the article – the AG doesn’t represent a Minister; he represents the Ministry or the Government. There is, we believe, huge difference between representing an individual (a Minister) and an institution (the Government).

In abstract, a Government has to be understood as an entity distinct from the people holding office at a time. Now the fact is the Attorney General, Solicitor General, Additional Solicitors General, Advocates General, and Additional Advocates General at the state level are in the ultimate analysis political appointments. None of these have any security of tenure or remuneration and they serve at the pleasure of the President or the Governor respectively. That effectively means they serve at the pleasure of the whomever happens to be in control of the executive branch at that moment. But the point is that even though they are appointed by the politicians or the party that won the election executive office in last elections, they are not representing those politicians or that party. They are representing the office that the politicians or the party assumed after it won the elections.

Personally, I don’t find anything wrong with all these being political appointments. If a political party wins an election, it would certainly want to appoint their own lawyers, or at least the lawyers they like, to these offices, and there is nothing wrong with that. When this government goes, the next bunch of lawyers members of, or close to another party perhaps come in. However, when discharging their office, these lawyers must remember that they are not representing individuals Ministers, they represent the office of the those Ministers, and that of the Cabinet. This distinction should be kept in mind, which we believe is something that is often lost sight of. This distinction is kept in mind.

4. Your article conveys a sense that the AG’s role is envisaged as a bridge between the Judiciary and the Cabinet – advising the latter on what actions might be of suspect constitutionality/legality. In a conventional sense, this is a function that any lawyer performs for his/her client. The article also does not illustrate any other function for the AG. What then prompts you to believe that the AG is not just the senior-most counsel employed in the service of the Union?

Ans. No, the office of the AG has always been occupied by mostly those lawyers who traditionally had a very high standing at the Bar. One example is of course, of M. C. Setalvad – who was the first AG. However, the office of the AG has been discharged by some people, and I would not like to take names here, who left much to be desired. Some of the AGs who served under some previous governments, like when the 2G case was being litigated – when the AG’s own involvement was questioned. Some said that the AG was allegedly involved somehow, but he unfortunately passed away soon after demitting office, so nothing became of the case.

Now, is the AG a bridge? You see, my personal opinion – and of course, this is my opinion and not necessarily that of my co-author in the article – the role of the AG in advising the government is slightly more serious than the role of say, a senior corporate partner in a law firm advising a business house on a merger. The AG is advising the government on what is constitutionally and legally permissible or not. Now, it’s one thing for the government to come and ask, ‘can this be done or not?’ but, it is another thing to be asked to figure out a way to do it. To some they can be similar questions. It all depends on how you look at it. If the govt. were to ask the AG if this can be done or not, the AG, if he believes, can simply say that, ‘this cannot be done.’ And then of course give his reasons as to why in writing or otherwise. Furthermore, in an area where legal precedents are silent, the AG can still say ‘this is not done’ or ‘this can’t be done’ or ‘should not be done’. The AG must be good enough to be appointed a Supreme Court judge. So when a person of that calibre says to the Government that a certain action that they are contemplating is unconstitutional or illegal, in my opinion, the matter should ordinarily end there. If the Government disagrees with the AG because the Law Minister or their party lawyers (who can be as senior as they come) gives them another opinion, the Government may not go by the AG’s advice. But at that point it would necessarily become a political question rather than a constitutional or legal one.

First Attorney General for India, M.C. Setalvald.

5. Following up from the previous question, consider a scenario of any Centre-State dispute pending before the Supreme Court. In this hypothetical case, the AG is personally convinced that the Center’s actions lack constitutionality, but the Cabinet directs him/her to defend the said action in the SC. In your opinion, does the constitutionally envisaged independence of AG allow him/her to disregard the Cabinet’s directions?

Ans. He can disagree, like any lawyer would disagree with their client. However, once you accept the brief you have to do your best to defend your client in the court.

[Interviewer Interjection: So, he cannot…]

I mean if a given AG is called by the Cabinet, saying that, ‘this is the case in the court,’ and asked ‘what do you think?’, and the AG says, ‘this can’t be done,’ and then, they say, ‘well, we have done it now,’ you [the AG] have to defend it to the best of your ability in court. Now the man has to do his job. This is distinct from telling the government that how something that is not permitted can be done. That is not the same. The scenario here is, ‘this is a notification we have issued, go and defend it in the court.’ In this case, you go and defend it to the best of your abilities and leave the rest to the courts.

You can take an example. There is a dispute, I am not sure if it is either pending or has been decided, concerning the Metro Rail Project. Where [in the case] the Constitution says that Tramways are a State subject, while Railways are a Union subject [according to the Seventh Schedule to the Constitution of India]. Now, if the Union Government wants to take over a Metro project in a State, it declares that this Metro Rail will be considered ‘Railways,’ within the meaning of the word in the Union List. On the other hand, the State Government says, ‘No, this is Tramways, within the meaning of that word in the State List.’ This is a genuine interpretational dispute, nothing wrong in that. So the AG should go and make the best argument he/she can, and leave it to the judges after that.

[Interviewer Interjection: But what if it is a politically charged situation?]

See, if it is a politically charged situation, then I don’t believe law will only of limited assistance. But if it is a politically charged situation where the principles of law are very clear, then some things are clearly permissible and other things are not. I personally don’t believe any self-respecting AG will ever tell the government that, you know, ‘even though this is clearly not permitted but still go ahead, we will see if it goes to court.’ I mean, an ordinary lawyer might say it, ‘do it now, and we’ll see it in the court when it happens’. But, I don’t believe an AG would be well advised to say that (sic). Of course, it depends on the AG concerned to take any call that is warranted in the given circumstances of the case. However, once the government has done something, and it’s your job to go and defend it in the court; you [the AG] go and make the best argument – [then] leave it to the court.

[Interviewer Interjection: So the AG doesn’t have any constitutionally congruent recourse in the matter?]

What recourse? Isn’t it the AG’s job to defend the government in court? And the Government is asking to be defended in the court. Now, the AG says that ‘I won’t defend you because what you are saying cannot be defended (sic).’ First of all, if there is very clear precedent – take the example of the Bommai Case. It [the case] holds, among other things, that the Union Government cannot dissolve a State Legislature unless, it first allows it to have a chance to conduct a vote of confidence on the floor of the house. It is completely harmless. However, you have to give the assembly a chance first. Imagine a scenario where assembly is dissolved, no vote of confidence is allowed to be taken [before the Assembly is dissolved] – something factually similar to Bommai’s Case, or many subsequent cases, like Rameshwar Prasad Case. The Law minister, or PM, calls the AG and says that ‘this is what we want to do.’ If the AG comes and says ‘Go ahead and suspend it anyway, we’ll see when it comes to court.’ I personally would say that such advice would be unbecoming of the AG, but I don’t think we have any AG who will, in all self-respect, make tender such an advice. I don’t think any self-respecting AG would ever say that. They will say, ‘this is the law, you want to ignore my advice, go ahead at your own peril.’ They may or may not give it in writing, that pertains internal working of the office that neither of us are privy to. However, I think if the AG has to give an advice in writing, when Bommai [case] says you cannot do it, I don’t think any self-respecting AG would do it [tender an advice to dissolve the Assembly contrary to the Bommai Judgement].

Outside of that, let’s say the AG is not even consulted. Let’s say, for whatever political reasons the PM or the Cabinet, goes ahead and suspends the Assembly saying, ‘we’ll see when it is challenged in court.’ Then in this case, what option will the AG have? If the AG says, ‘I won’t defend the government,’ the government is in a very embarrassing position. This is because now you either fire the AG, and hire someone else, or you keep the AG, and hire someone else. Both are equally damaging, and the newspapers will have a field day. I think in that situation, a responsible AG should say, ‘Ok, you have done it now. I will take my best shot in the court, and let the court decide.’ Even the court would be aware that this cannot be sustained. In my opinion it then becomes a show and dance, with the court saying, ‘we’ll hear you, but we’re going to decide according to the law.’

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About the Interviewers

Prashant Khurana is a student of Law at the Faculty of Law, Delhi University. He holds a Bachelor’s degree in History from Hansraj College. He is an accomplished debater, and an active participant and organiser of Model United Nations Conferences and was recently offered the position of Chairperson at the University of Kent, United Kingdom for their MUN conference. He has appeared as a guest panelist on Headlines Today News Channel and has also interviewed personalities such as Mr. Mani Shankar Aiyar, Dr. Sambit Patra, the Ambassador of Canada to India, among others.

Kamya Vishwanath is a first year law student at the Jindal Global Law School. She is extremely passionate about her political opinions and reads extensively about the subject. A strong advocate of mental health and combating stigma around the same, she has interned with the Spastics Society of Karnataka and the Center for Law and Policy Research and continues to write passionately about mental illness. A strong believer in the philosophy of individualism, Kamya aims to leave behind a lasting legacy in every task she undertakes.

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