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Saturday, December 04, 2021

Attorney soldier

The Bofors controversy,that alleged that Prime Minister Rajiv Gandhi was part of a corrupt kickback deal,will not die down.

Written by Rajeev Dhavan |
May 4, 2009 5:16:40 pm

The Bofors controversy,that alleged that Prime Minister Rajiv Gandhi was part of a corrupt kickback deal,will not die down. Political leaders and parties often collect funds surreptitiously — but they claim that it is for the party’s political work. But in Bofors,allegations of the PM’s direct involvement raised the slogan: “Raja chor hai: The King himself is a thief”. Today,the Quattrochi controversy invites the menacing allegation: “Maharani bhi chor hai: The Queen too is a thief”. Now Quattrochi’s (Q) expired Red Corner Notice has been dropped at the instance of the Attorney General (AG) Milon Banerjee,absolving both Q and Maharani.

The story of Bofors is the story of apparent cover-ups. In 1987,the a parliamentary committee absolved Rajiv. In 1993,Congress allowed Q to escape. Around 1999,Sonia Gandhi defended Q,turning a blind eye to judicial verdicts and information about his involvement. Efforts to catch Q in Malaysia and then Argentina failed — the latter,in 2007,due to CBI ineptitude. In 2006,his accounts in London were de-frozen. Congress regimes have been half-hearted over Q. In November 2008,AG Banerjee recommended that the RCN be dropped. Now,PM Manmohan Singh has embarrassingly defended that on the spurious ground that foreign courts have not extradited Q. But that was because India did not present a proper case.

Central to this controversy has been the elusive figure of AG Banerjee,who owes this post to Law Minister Bharadwaj and 10 Janpath. During Narasimha Rao’s tenure,Banerjee’s role as AG was not distinguished. Now,he rarely appears in court. The two occasions that I can remember in 2007-08 were his appearances in the Punjab-Haryana case to ask for adjournments! When the Supreme Court wants the AG to advise the court,they now ask Solicitor General (SG) Vahanvati and others. The AG’s office has virtually fallen into disuse; and,now,allegedly,into disrepute.

The AG is a constitutional office (article 76). He is the principal advisor and legal conscience-keeper of the Government. In disreputable times,AG Francis Bacon was called the ‘King’s bulldog’ in 1614. In India,the 1934 Joint Parliamentary Committee created the post which transited into the Constitution. In 1962-63 when Ashok Sen tried to combine the offices of AG and Law Minister,he was rebuffed. Today,it could be argued that a de facto merger has taken place between Law Minister Bharadwaj and AG Banerjee. It wasn’t always so: independent India’s first AG,M.C. Setalvad,chastised the government over the Mundhra deal,averring that he was accountable to the nation,not the government. He addressed Parliament on preventive detention in 1960 — and politicians listened. Fali Nariman resigned as Additional Solicitor General (ASG) in July 1975 when the Emergency was declared. In 1977,Soli Sorabjee as ASG defended Presidents Rule,but on 10 December 1989 reportedly told Krishnan Mahajan that he regretted doing so. Then he,as AG supported opening up Babri Masjid for Hindu prayer in March 2002,even though in 1994 he opposed this stance in the Babri Masjid case. In UP K.L. Mishra and in Bombay H.M. Seervai set standards for Advocate Generals,the comparable office at State level.

Attorney Generals anywhere are troubled when confronting the government that appointed them. In 1975 Australian AG Endicott resigned because embattled PM Whitlam would not give him documents. In 1978,Canadian AG Ron Basford was called up to explain why he prosecuted the Toronto Sun but not an MP. In 1977 AG Sam Silkin was taken to court for non-prosecution of postal workers; Lord Denning declared his actions illegal,but was reversed by the House of Lords. In Australia,Isaac Isaacs (later chief justice and then Governor-General of Australia) is rightly remembered for continuing prosecution in the Mercantile Bank case in 1893. English AG Havers was rightly criticised in 1978 for not prosecuting breakers of Rhodesian sanctions,just as the New Zealand AG was applauded in 1981 for refusing to succumb to union pressure. But,in 2005,the UK’s AG Goldsmith was exposed for inconsistency,obfuscation and untruth over the Iraq invasion.

Thus the AG’s office can inspire pride when it affirms independence and standards and earn rebuke when in falls in stature and respect. Many years ago,on 29 January 1951,Lord Shawcross described the role of the AG as follows: “I do not think he is obliged to consult with any of his colleagues in government,and… he would be a fool in some cases if he did not… If political considerations in the broad sense… affect government in the abstract sense,it is the attorney general,applying his judicial mind,who has to be sole judge of the circumstances”. Independence from government is a critical factor.

Hence the AG is both a lawyer to the Government and a public functionary. Can he hide behind the principle of confidentiality? Arguably,each time the AG writes an opinion he must be conscious that he does so in the public (and not the government’s) interest. An invisible ‘public’ is looking over his shoulder and reading every word. He can be summoned to parliament,but he can address them to explain his stance. When the government cites the AG’s opinion as a defence or explanation,the opinion and entire paper should be made public. In England,AG Goldsmith’s opinion on Iraq was available to the public and legal experts,and torn apart in public discussion. In the present controversy,Law Minister Bharadwaj declared that the decision on the Red Corner notice was made by the AG. This is startling. Except when in court,in his own name,the AG makes no decisions. Red Corner Notices are between the government and the wing of the CBI dealing with Interpol and with the Law and Home Ministries.

In this case — and in every matter — the AG’s opinion should be made public. This should be equally true of the opinions of the Solicitor General. In the Mulayam Singh-CBI case,the Supreme Court was moved on the advice of the SG,which the Court frowned on. Dozens of issues which are closed are opened or taken further on the AG or SG or other government lawyers’ advice. Fortunes are made and lost as papers are nudged along.

The AG’s office is important. If he is a mere government poodle or bulldog,the office should be abolished; But his is meant as an independent public office. He must be prepared to disagree with his government; even if sacked. He must act with independence,candour and transparency. Anything else short-changes the constitution and the office.

The writer is a senior advocate at the Supreme Court

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