Why Motilal Setalvad's Legacy is Important While India Chooses a New Attorney General

While the Centre may choose someone who sees eye to eye with it on pending legal issues, it should remember that the attorney general’s role is conceived as independent and non-political – a principle that Setalvad stood by.

With the Centre yet to find a successor to the outgoing attorney general Mukul Rohatgi, the question of what attributes an ideal attorney general should possess assumes significance. The Centre may well choose someone who sees eye to eye with it on many of the legal issues pending before the judiciary. While this may be understandable, unanimity of views between the attorney general and the government on all issues is not a desirable goal – it defeats the very objective of having a separate post of attorney general, who is not a member of the cabinet.

The former law minister Ashoke Kumar Sen’s proposal in 1963 to combine the positions of the law minister and that of the attorney general, backed by the then Prime Minister Jawaharlal Nehru, was abandoned precisely because the reasoning behind it was considered outrageous and inconsistent with the rule of law. The separate and distinct post of the attorney general was considered significant in view of his independent and non-political advice to the government on legal matters, which would otherwise be unavailable if he were a part of the government.

India’s first attorney general M.C. Setalvad accepted the offer of appointment as attorney general in 1949 on the condition that he intended to relinquish the office within a year or two and return to Bombay, where he was practising as a lawyer before his appointment. But he continued as attorney general for almost 13 years and stayed on in Delhi thereafter.

Setalvad leaving the attorney general’s office in 1963, almost one year before Nehru’s untimely death, was a result of his growing differences with the then law minister, Sen. Setalvad mentions in his autobiography, My Life: Law And Other Things, that Sen repeatedly put before Nehru instances of his public criticism of the government in matters pertaining to judicial administration and appointments to judicial offices.

When Setalvad met Nehru to convey his decision to leave the attorney general’s post, the latter’s almost complete silence perplexed him. Rather than persuade Setalvad to continue, Nehru asked him about his age and remarked that he was five years older than him.

Setalvad mentions in his book that Sen had issued instructions in the law ministry to keep track of his public utterances and make copies of them available to him. Setalvad suggests that Nehru’s cold attitude towards him during his meeting was induced by Sen.

It is, therefore, not surprising that Setalvad’s last days in office were marred by the ugly controversy over Sen’s outlandish proposal to combine the offices of the law minister with that of the attorney general. The official reasoning was that the separation of the two offices was a relic of the British days, that it involved divided responsibility in respect of legal advice to the Union government and that in the circumstances, it was advisable to combine them. The government further suggested that such a combination would not require a constitutional amendment.

The Nehru government even went to the extent of publishing a pamphlet – in defence of the proposed action – titled, ‘A Study of the History, Nature and Working of the Office of the Attorney-General”. A veiled suggestion was also made in the pamphlet that the AG, being allowed to practice privately, was not able to attend to many important government matters; and the government had to deliver briefs to other counsel, to conduct government cases.

Setalvad recalls that the final argument in support of the proposed change was put in these words:

“It is, therefore, proper that the person who is responsible for giving legal advice, also bears responsibility therefor, and, if necessary, support of the same in parliament. It is difficult for a law minister to take responsibility and support the advice of the AG if he takes a view different from his… Such a division cannot conveniently work under a system of parliamentary democracy and responsible government. This is the reason why, in other parliamentary democracies, such a division does not exist.”

The Nehru government even considered amendment of the constitution for this purpose.

The proposal led to outrage among the general public and the legal community because the attorney general’s role was conceived as independent and non-political.

Setalvad refused to make a statement condemning the unconstitutionality and inappropriateness of the proposal, as urged by the members of the bar association and others, because he said it was unseemly for him to do so, while he was still in office, and he could be asked by the government to advice on the constitutional aspect of the proposal.

In his memoirs, Setalvad laments that he had rendered devoted service to the government and the country for almost 13 years. For this, he received no word of recognition or appreciation.

As Rohatgi prepares to leave his office after three years, he must be wondering whether he could expect the same degree of recognition and admiration, which Setalvad believed was due to him, after 13 years as the attorney general. None of Rohatgi’s predecessors had such a short tenure as his, despite “having a good relationship with the government”, as he has claimed. And none before him had publicly expressed a desire to return to private practice, after completing just three years as the attorney general.

This shows that as the attorney general, Rohatgi might have missed his private practice more than find satisfaction with the responsibilities which his office yields the incumbent. As he leaves the office of the attorney general, mid-way through the Narendra Modi government’s term, uncertainty surrounds the future of the pending cases before the courts in which the government is a party.

If the tenure of the attorney general more or less synchronises with that of the government, it would help continuity and speedy resolution of disputes in which the government is a party.

Rohatgi’s predecessors more or less continued till the governments which appointed them remained in power. Goolam E. Vahanvati remained as the attorney general throughout the tenure of the UPA-II government. Before him, Milon K. Banerji was the AG throughout the UPA-I tenure. Soli J. Sorabjee was the attorney general throughout the Atal Bihari Vajpayee government from 1998 to 2004. Ashok Desai’s tenure as the attorney general synchronised with that of the United Front government from 1996 to 1998. Banerji was again the chosen man as the attorney general during much of P.V. Narasimha Rao’s tenure as the prime minister. G. Ramaswamy was the choice of Prime Minister Chandrashekhar for the post, although he continued during the first year of Rao’s tenure, thus ensuring continuity. Sorabjee was the choice of V.P. Singh for the post, but he paved the way for Ramaswamy, once Chandrashekhar succeeded V.P. as the prime minister.

K. Parasaran remained as the attorney general throughout Rajiv Gandhi’s tenure as the prime minister, and during the last one year of Indira Gandhi’s tenure. Parasaran’s predecessor, L.N. Sinha was the attorney general for four years and was the choice of both Prime Minister Charan Singh and Gandhi, who succeeded him in 1980. S.V. Gupte was the attorney general throughout Morarji Desai’s tenure.

Niren De remained as the attorney general from 1968 to 1977, while his predecessor C.K. Daphtary was the attorney general from 1963 to 1968, serving three prime ministers in quick succession: Nehru, Lal Bahadur Shastri and Gandhi.

Rohatgi has said that he would cross the bridge, if the prime minister himself requests him to continue as the attorney general, thus indicating that he is not averse to reconsider his decision. It is, intriguing, therefore, why he did not choose the option of conveying his decision personally to the prime minister, as his illustrious predecessor, Setalvad did in 1963, although his meeting with the prime minister for this purpose left him disappointed.

Perhaps Rohatgi has thought fit to reserve the real reasons for leaving the attorney general’s office abruptly within three years of the prime minister, who chose him for the post, to his yet-to-be-written memoirs.