KK Venugopal’s Term As Attorney General Was One Of Missed Opportunities

One of the candidates for the party run-off for the Prime Minister’s post in England was the attorney general. It is then that I learnt that in Britain, the AG was a part of the cabinet. 

When India won her Independence, the makers were toying with this idea.  In fact, it was the holder of the first office of attorney general, MC Setalvad, who cautioned against importing sophisticated English traditions into India.

Setalvad was a giant. He represented the Congress before the Radcliffe Tribunal, which partitioned Punjab. As AG, he was very clear that his allegiance was neither to the government of the day or the court. It was to the Constitution. 

After all, he was the 'Attorney General FOR India'—as the Constitution describes the post, and not the attorney of the Indian government. His differences with Jawaharlal Nehru’s Law Minister Ashoke Kumar Sen were well known, which in fact led to his exit from his office just a year before the Chinese defeat took Nehru’s life.

Before you understandably mistake this to be a hagiography of MC, I must confess that I am asked to share my evaluation of the term of KK Venugopal, affectionately known at the bar as KKV, as he is set to demit his office as India’s AG. 

The digression was only to note the lofty template the first holder had left behind to assess his future successors in office. 

So, let’s evaluate KKV, the AG, and not KKV, the person, and not even KKV, the lawyer—who, no doubt, is an extraordinarily gifted one.

The AGI is a constitutional office. Article 76 of the Constitution of India contemplates a critical role for the AG. In fact, the President of India can, as per Article 76(2), seek his counsel despite being under a mandate to act in terms of Article 75 as per the ‘aid and advise’ of her ministerial council. 

This establishes that our founding fathers envisaged an independent AG, who would have the courage and conviction to act without being influenced by his client—the government.

So, where does KKV fit in as per the Setalvad parameters? 

Some may argue that while Setalvad had set high standards, many of his successors had left much to be desired.

Milon Bannerji, a wonderfully gentle and jovial man, was almost an absentee AG. In contrast, poor Goolam Vahanvati, who was anything but gentle, was accused of being too hands-on and too involved. Resultantly, he had to even suffer the ignominy of being forced to testify as a witness in the 2G scam case and be cross-examined.   

KKV was almost 86 when he accepted the post after Mukul Rohatgi tendered his resignation. 

He is considered a doyen of the bar, greatly regarded and respected by the bar as well as the bench, having argued landmark cases including as amicus in the 2G case; and as the lawyer for LK Advani and MM Joshi in the Babri Masjid demolition case; and for Jayalalitha in several of her matters.

KKV, whose first stint as a law officer was as Additional Solicitor General for the Morarji Desai government in 1979, did not need any "law office" to distinguish himself. 

In fact, many eyebrows were raised when he chose to accept such a high stress political office at such an advanced age, by people who have no idea how agile and physically fit KKV actually is in reality.

During his tenure as AG, India witnessed several turbulent times when her top constitutional court faced grave challenges. 

To list a few—the rebellion by the "Press Conference" Judges, the supersession of judges by the Gogoi Collegium, the sexual harassment episode pertaining to Ranjan Gogoi himself, the legislative destruction of the constitutional structure of Kashmir, the mammoth pandemic and the heartbreaking instance of the court’s initial reaction to trust the executive's assurances on the plight of migrant workers, the matters of violent targeting of students, the systematic witch-hunt of social activists and brutal suppression of protest movements—such as Shaheen Bagh and the farmers' movement—and the pendency of habeas corpus cases relating to Kashmir. 

KKV was silent or complicit in letting these issues fester in courts, leading to creating the perception that India’s Supreme Court was on its way to being labelled as an “executive court”.

KKV, as AG, either actively supported the state or the judges in most of these matters and was rarely seen on the side of the people of India. In fact, on the issue of review of Kedar Nath and the law it laid down on sedition—something which the government of the day was rampantly misusing—KKV was firmly opposed to a relook while conceding that safeguards were necessary. 

Where KKV showed a glimmer of independence and did justice to his office was the fair and impartial manner in which he disposed of the record number of requests for initiation of contempt proceedings that flooded his desk in recent times. 

He diligently recorded his reasoning every time he would let off a SN Dhingra or a Kapil Sibal or a Rahul Gandhi or a Swara Bhaskar or even Rajya Sabha Member Ranjan Gogoi himself. 

While he may have been tough on Kunal Kamra, who has been pushing the frontiers of the satirical comedic genre, he was equally firm on hatemonger Yati Narsinghanand, who had said that those who believed in the Supreme Court would die the death of a dog.

While sadly KKV missed out on several opportunities during his tenure to be the citizen’s voice and the constitution’s chowkidar in India’s top court, in the last few months, he has shown tremendous courage of conviction when he doggedly opposed the expedited hearing of sensitive and high stakes matter before a retiring Chief Justice NV Ramana.

The two cases—one relating to the Wakf board’s claim that the Ambani residence Antilia had been constructed illegally on Wakf land and the other being the Meghalaya Lotteries case—are two cases that come to mind.  

In the former, when KKV and his legal team were removed so that a new team could attend the expedited hearing, KKV not only wrote to Chief Justice Ramana flagging the issue but he also insisted that contempt proceedings be initiated in the matter.  

The AG’s principled stand won the day for “justice should be seen to be done” and Ramana retired without getting to hear those cases.

So, for me, KKV’s term is one of missed opportunities, where a great legal statesman could have left his indelible mark in history and reserved for himself a place alongside greats such as Setalvad.  

KKV had the stature and the age not to have to look behind his back every time he would let his principle and passion for justice triumph over his fealty towards his client. It's easy for us to critique. I am sure he had his reasons.

As I am a dreamer and a hopeless optimist, I wish our great country a truly great AG to succeed the great KKV, though I am chastised by Oscar Wilde who had said: “Yes: I am a dreamer. For a dreamer is one who can only find his way by moonlight, and his punishment is that he sees the dawn before the rest of the world.”

Sanjoy Ghose is a Senior Advocate practising in the Supreme Court of India and the Delhi High Court.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.