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Behind Mukul Rohatgi Turning Down AG's Job, an Unusual Law Ministry 'Circular'?

Attempts by the Union law ministry to curtail his powers – and place them with the Solicitor General – even before Rohatgi had started his stint are understood to have led to his decision to say no.

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New Delhi: There were red faces in the government on Sunday, September 25, when senior advocate Mukul Rohtagi turned down the post of Attorney General for India, an offer he is understood to have accepted just days earlier.

While Rohatgi did not explain why he acted on second thoughts, insiders say he was uncomfortable with attempts at hemming him in even before he had started out. An instance of this was an unusual law ministry circular that laid down the division of work between the AG and his number two.

On September 13, the day Mukul Rohatgi accepted the government’s offer of to take up the post of AG, the Department of Legal Affairs under the Union law ministry that deals with appointments of law officers, issued an Office Memorandum.

It said:

“In respect of cases before the Supreme Court, the list of cases on a daily basis will first be placed before the learned Attorney General of India for the purpose of his selecting the matters in which he considers his appearance to be necessary. The list will thereafter be placed before the learned Solicitor General of India.”

The AG is the country’s topmost law officer and his second in command is the Solicitor General.

What was unsaid in the circular is that it would be the SG who would then be marking cases to other law officers including Additional Solicitor Generals – and not the AG. SG Tushar Mehta has been the government’s crisis manager in the courts and has been virtually running the show with K.K. Venugopal taking a back seat as AG. 

Sources said while it has always been clear how work allotment is done, this is the first time that such an Office Memorandum was issued. This appeared to be the one red flag that led to Rohatgi’s second thoughts about the top job. It was he who should be deciding case allocation, it was felt. 

“Rohtagi is a hands-on man for whom his freedom is of prime importance. And he had been asked directly by the Prime Minister’s Office to take the post. He had, while discussing the brief, given the government a charter saying that he wanted a free hand and the same control that he had as Attorney General the last time, from 2014 to 2017,” said a top Supreme Court lawyer.

The Wire reached out to Rohatgi, who said he would not like to comment. 

Sources say Rohatgi was the choice of Prime Minister Narendra Modi, who also wanted to rein in Tushar Mehta who, Modi felt, was becoming too powerful. Mehta is considered to be close to Union home minister Amit Shah. 

A government source said, “The Office Memorandum was issued to balance the situation because until now, Tushar Mehta had been in charge. With a new hands-on AG, the government did not want to annoy the SG.”

Also read: Here’s Why the Attorney General’s Post Is Significant

Doubts had indeed been raised in government circles as well as to whether Rohatgi, considered a free bird and certainly no pushover, would be as amenable to the government’s wishes as Tushar Mehta was.

The government is already wary of the next Chief Justice, D.Y. Chandrachud, especially in the run up to 2024 Lok Sabha elections. Considering that the next CJI could make things uncomfortable for the government, the latter is understood to have wanted a top law officer who is completely on its side. Besides, the government isn’t quite sure about the equation between Rohatgi and Justice Chandrachud. 

As AG the first time around, Rohatgi had had then law minister and his old friend Arun Jaitely as boss. While the two got on famously, the situation started changing when Jaitely moved out to the Union finance ministry and Ravi Shankar Prasad became law minister. Rohatgi and his number two, Ranjit Kumar, quit abruptly in 2017.

The next year, ASG Maninder Singh (also known to be close to the Jaitely camp) and P.S. Narasimha (now a Supreme Court judge), also quit, paving the way for K.K. Venugopal and Tushar Mehta to take up the posts of AG and SG respectively. Mehta was a relatively junior lawyer compared to the ASGs. 

Senior Advocate Sukumar Patjoshi says, “Rohtagi commands a presence and respect from both the bar and the bench which is unparalleled. I wish he had accepted the position because he would have been the right AG for the country. Tushar Mehta on the other hand has been by far one of the most successful SGs. Together they would have made a great team.”

Sources also say the government isn’t keen on appointing Tushar Mehta as AG as he is useful in his present position. Mehta at present calls the shots and can argue a case in any court at any level while the AG, being a constitutional authority, is constrained by his position as well as also bogged down by policy and procedures. 

K.K. Venugopal retires on September 30. It is unlikely that the top constitutional post can be kept vacant. But till a successor is found, the SG will be the de facto AG.