How will the eminent lawyer perform in key matters such as the collegium system for appointing judges, the Aadhaar privacy case and the cattle sale ban case?
The appointment of a new attorney general, three years after the present government assumed power at the Centre, will certainly make all Supreme Court watchers curious. When the person chosen is K.K. Venugopal, 86, who has a rich experience in legal practice and is respected for his clarity of views on many issues before the court, expectations are likely to rise about his eventful tenure.
As the top-most law officer of the central government, the attorney general plays a crucial role in assisting the Supreme Court in taking legally sound decisions on key issues before it, as well as guiding the government to adopt rational choices and dissuade it from pursuing litigation that is not advisable.
Although Venugopal lacks the combative and belligerent style of his predecessor, Mukul Rohatgi, he can, through his persuasive style, hope to achieve reforms that have proved to be elusive.
One such reform involves changes in the collegium system of appointing judges, which has been hanging fire as the government and the judiciary cannot agree on the revised memorandum of procedure (MoP).
The Supreme Court’s constitution bench struck down the National Judicial Appointments Commission (NJAC) Act, in October 2015 and in December 2015 asked the government to prepare a revised MoP to select judges for higher judiciary in consultation with the court’s collegium comprising the chief justice and four senior-most judges.
The Supreme Court sought the revision of the current MoP in light of certain guidelines that it had laid down pertaining to transparency, eligibility criteria for judges, establishment of a secretariat, mechanism to deal with complaints and interaction with recommendees by the collegium.
But the revised MoP has not seen the light of the day, despite 18 months passing since the Supreme Court’s December 2015 order. The interregnum saw T.S. Thakur’s year-long tenure as chief justice embroiled in a tug-of-war with the government, with the former openly expressing his unhappiness with the government’s intransigence on appointments.
Chief Justice J.S. Khehar’s tenure, which began early this year, will end in August, paving the way for the assumption of office as chief justice by Justice Dipak Misra, the next in line of succession, who will retire after a year.
Justice Khehar’s tenure initially promised to make some progress on the MoP front as he had avoided any public expression of dissatisfaction with the government, which his predecessor was known for, raising hope of a consensus being reached through quiet consultation on the administrative rather than the judicial side.
However, reports suggested that the differences remained. As a result, Justice Khehar’s tenure saw the continuance of the cold war with the government on the issue.
Can the change in attorney general help to bridge the gulf between the collegium and the government on the MoP?
Venugopal was the counsel for the Madhya Pradesh government in the NJAC case, and while he defended the NJAC, he did not rue the government losing the case, as Rohatgi did while leaving office. Therefore, one could expect that as attorney general, Venugopal may use his good counsel to achieve a consensus on the revised MoP, as a reformed collegium is in the interest of the government and the judiciary.
Interestingly, Venugopal and Rohatgi differed on the need for a National Court of Appeal (NCA), an intermediate court between the high court and the Supreme Court, to be set up to relieve the burden on the apex court so it could focus on constitutional cases. The proposal, which was seriously considered by Justice Thakur before his retirement, was referred to a constitution bench. Venugopal, who was the amicus curiae in the case, defended the proposal, while Rohatgi opposed it. It is likely that Venugopal, as the attorney general, will persuade the Supreme Court to set up a constitution bench on the proposal to consider making the NCA a reality.
Venugopal and Rohatgi also differed on the punishment to be meted out to Justice C.S. Karnan of the Calcutta high court. Venugopal pleaded with the Supreme Court’s seven-judge bench that found Justice Karnan guilty of contempt of court to let him retire without punishment, as he had already been deprived of judicial and administrative work.
But the bench accepted Rohatgi’s suggestion that he should be punished in order to restore the majesty of the court. With Justice Karnan likely to approach the Supreme Court again for relief from the sentence of imprisonment imposed on him, it will be of interest to know what advice Venugopal will give to the court as attorney general, if sought by the bench.
Venugopal begins his tenure as attorney general with some baggage. As the counsel for the accused in the Babri Masjid demolition case, he recently opposed the use of Article 142 of the constitution by the Supreme Court – which enables it to use its extraordinary power to do complete justice in a case – to transfer the case against some BJP leaders from the Rae Bareli court to the special court at Lucknow hearing the conspiracy charge against unnamed kar sevaks. The Supreme Court rejected his contention and used Article 142 to transfer the case.
As the Supreme Court reopens on July 3, all eyes will be on Venugopal to see how he defends the government when the court hears key cases such as those on privacy issues in Aadhaar and WhatsApp use, and challenges to Centre’s cattle sale ban notification.
Although the government now may claim credit for choosing Venugopal as attorney general, it had offered no explanation when it removed him in 2015 as counsel for the CBI and the Enforcement Directorate because he had opposed the removal of the CBI’s deputy director, Rajeshwar Singh, from the team probing the 2G cases.
The Supreme Court, which disapproved Singh’s removal when the probe was nearing completion, appointed Venugopal as the amicus in the case.
It is this independent spirit of Venugopal that will be on test as he begins his new role as the attorney general.