In defence of the realm, again: Meet Mukul Rohatgi, the next AG for India

Mukul Rohatgi has fought some controversial cases. principal among these is the Aadhaar case that was challenged on grounds that its technology was a threat to privacy

Come October 1, Mukul Rohatgi (67) will take charge as India’s new attorney general (AG). The incumbent, K K Venugopal — who was given two one-year extensions after his term ended in 2020 — had earlier indicated he wanted to retire on grounds of health.

This will be Rohatgi’s second stint as AG. He was the National Democratic Alliance (NDA) government’s first choice after it came to power in 2014. As AG, he won several important cases for the government, including the triple talaq case in which he argued against the practice. In 2017, he ended his three-year tenure, after which the government appointed Venugopal. 

That was not the first time he worked for the government. In 1999, he was appointed additional solicitor general when Harish Salve served as solicitor general. It was Rohatgi who argued for the Union government in the Supreme Court on phasing out diesel buses and introducing a CNG fleet. However, the government changed in 2004 and he resigned from the position.

In 2002, he represented the Gujarat government, with Narendra Modi as chief minister, in riot cases and fake encounter cases. 

The Supreme Court had ordered a special investigation team (SIT) to probe the incidents of violence during the 2002 post-Godhra riots and a few months ago, the apex court dismissed an appeal against the SIT's clean chit to Modi and 63 others. The appellant was Zakia Jafri, wife of former Congress MP Ehsan Jafri, who was among the 69 people killed in the Gulbarg Society violence, a day after the Godhra train burning incident. The S-6 coach of Sabarmati Express was burnt at Godhra, killing 59 people and triggering riots in Gujarat in 2002. Zakia argued that there was a larger conspiracy in the case and wanted that investigated. In response, the Supreme Court set up the SIT, which in 2012 gave a clean chit to Modi.

“It is obvious that Zakia Jafri was not the real applicant in the proceedings. She may be the unfortunate victim but her name was used by certain forces who were opposed to the then (state) government and senior officers of police, and the judgment goes on to say that they should be unmasked and put in the dock,” Rohtagi said in a television interview after the SC order.

Rohatgi has won many cases but has lost some as well. He was the lawyer for Anil Ambani in the dispute between the two Ambani brothers in the gas pricing case. After Reliance patriarch Dhirubhai Ambani’s death, the company's assets were divided between Mukesh and Anil. RIL got the gas exploration and extraction business — the Krishna-Godavari (KG) Basin. Anil got the power generation business and also sought to buy gas from his brother. A squabble broke out between the brothers:  How much should Anil’s firm Reliance Natural Resources Limited (RNRL) have paid RIL for the gas?  The matter went up to the Supreme Court, which decided in Mukesh’s favour.

There are other cases that Rohatgi fought that have led to lingering controversy. Principal among these is the famous Aadhaar case that was challenged by a number of individuals and organisations on the grounds that its technology was a threat to privacy. Rohatgi told the court that privacy was not guaranteed by the Indian constitution. In court, Aadhaar was being challenged on the grounds that it was not only excluding Indians from accessing government entitlements but also infringed on privacy. The matter of privacy then had to be referred to a nine-judge Bench at the Supreme Court which ruled that privacy is a fundamental right. It is this that will, in the future, become a bed­rock of all legislation, including the crucial Personal Data Protection law that will likely be discussed in Parliament’s Winter session. 

Rohatgi will be part of the government, defending a position that he has said publicly — that it is not the provenance of courts but Parliament to draft new Funda­mental Rights in the Constitution.

But for a lawyer, Rohatgi can be remarkably outspoken. He told reporters in 2018 that it was not the “job of judges to hold press conferences”. 

This was after four Supreme Court judges — at the time seniormost, Justice J Chelameswar, along with Justices Ranjan Gogoi, M B Lokur and Kurian Joseph — held a press conference and announced they had met the Chief Justice (Dipak Misra) and raised “issues affecting the institution”. The press conference, now largely forgotten, created an earthquake at the time.

Even before he has taken over, the Law Ministry on September 13 issued a memorandum that made it clear that it is the AG who will decide which cases he will take up. “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 for India for the purpose of selecting the matters in which he considers his appearance to be necessary. The list of cases will, thereafter, be placed before the learned Solicitor General of India...” the memorandum said. Exactly what this means will be clearer after October 1.