Why Attorney-General Venugopal’s words in court remind us of the dark days of Emergency

The Supreme Court hearings in the Karnataka hung assembly case have seen Attorney General (AG) K.K. Venugopal stretch the legal envelope to such an extent, they have brought back memories of the Emergency.

To be specific, the attorney general of the time, Niren De, and his controversial remarks before a five-judge Constitution bench in a case regarding Emergency.

In the 1975 A.D.M. Jabalpur versus S.S. Shukla case, better known as the habeas corpus case, Niren De argued in court that since there had been a proclamation of Emergency, citizens’ right to move court had been suspended.

A detenue, even if in illegal detention, had no locus standi to question his detention in a court, De had then said in court.

“The object and purpose of emergency provisions is that the Constitution provides special powers to the Executive…If the Executive takes any action depriving a person of a fundamental right mentioned in the Presidential order and not complying with the law, such Executive action cannot be challenged because such a challenge would amount in substance to and would directly impinge on the enforcement of fundamental rights mentioned in the Presidential order,” De proclaimed in his defence of the Emergency.

But the one statement that haunted De, otherwise an eminent and formidable lawyer, was his response to Justice H.R. Khanna. “Life is also mentioned in Article 21 and would the government argument extend to it also?” Khanna asked, to which De replied: “Even if life was taken away illegally, courts are helpless”.

History never forgave him, while Khanna, the only one with a dissenting opinion in the case, became a household name.

It is not difficult to draw parallels between Venugopal’s utterances in the Karnataka case and De’s controversial statements four decades ago.

Venugopal, who was Wednesday midnight roused from his sleep for the case, on Friday took the unusual stand that the trust vote be conducted by secret ballot. This suggestion was immediately turned down by the bench.

But it was his performance on Wednesday that had many wondering if the current attorney general — a position under Article 76 of the Constitution — had behaved more like a lawyer for the BJP than as an officer of the court.

Sample this: Referring to the questions over the actual support that B.S. Yeddyurappa, who had by then been invited by Karnataka governor Vajubhai Vala to form the government, enjoyed among the newly-elected MLAs, Venugopal told the bench headed by Justice A.K. Sikri, “But your Lordships don’t know the full figures. You only know what’s announced yesterday but not entirely.” To this, the bench responded politely but firmly, “We cannot look away because the figures don’t say you have majority.”

More gems were to follow. “The anti-defection law would come into force only after the MLAs are sworn in,” Venugopal claimed. It appeared to suggest that any illegal politicking, including horse-trading, before the swearing-in would not result in the MLAs being disqualified.

To this statement, the bench wondered, “Does that mean all the suitcase exchange is possible before they are sworn in? That’s impermissible.”

Venugopal, who was appointed AG last year after Narendra Modi government’s first AG Mukul Rohatgi chose not to continue after the completion of this three-year tenure, has appeared in several landmark cases.

He was appointed additional solicitor general by the Morarji Desai government that came into office after Emergency.