Rahul Gandhi defamation, Maharashtra and GNCTD judgments, Adani and more: An interview with Dr Abhishek Manu Singhvi

Eminent jurist, politician and parliamentarian, Dr Abhishek Manu Singhvi wears many hats. A senior advocate of the Supreme Court of India, he is one of India's busiest lawyers. In 1997, when he was 37 years old, Dr Singhvi became the youngest Solicitor General of India. 

He is a senior leader of the Indian National Congress, the party's national spokesperson since 2001, and currently a member of Parliament from West Bengal in the Rajya Sabha. He also heads the Parliamentary Standing Committee on Commerce. 

In this interview with The Leaflet, Dr Singhvi expressed his views on a number of issues ranging from the defamation case against senior Congress leader Rahul Gandhi and his disqualification from the Parliament, the Adani–Hindenberg affair, the Maharashtra political crisis, the recent changes in the NCERT history textbooks and the row on legal education between Dr Singhvi and the Bar Council of India.

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Q: In your recent plea before the Supreme Court seeking judicial intervention against the "misuse" of the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) to harass Opposition leaders, the court averred, "Political leaders do not enjoy higher immunity". What were the reasons for the plea in the first place, and do you really seek to create an exception for the political class? If yes, why?

A: The petition at the Supreme Court was a highly focused and nuanced one. If you see it, you will find that these were the building blocks of that petition:

One, that post 2014, as official published figures suggest, there has been a humongous increase in the sheer numbers and quantum of cases filed by ED and CBI not only generally against persons, but in particular against political leaders.

Second, as per the same official published figures, within the category of cases filed against political leaders, 95–99 percent have been against Opposition leaders. 

Third, the conviction rate in all such cases is abysmal. 

On those basic building blocks, it was argued in the petition that a skewed application of law through a misuse of agencies creates a non-level playing field for democracy.

The third building block was that the uneven playing field affects democracy, and free and fair elections.

The fourth building block was that the uneven playing field, resulting from a skewed application of law, directly violates the basic structure of the Constitution.

Consequently, we were asking that guidelines should be issued by the court for two categories: i) pre-arrest or, in case an arrest is warranted, guidelines for the arrest; and ii) post-arrest, for how and why bail should be granted.

We were not asking for any present case to be affected. The guidelines were to only be prospective, even though the trigger was the skewed application of law in the past. Similarly, although the trigger was the skewed application against political leaders, the benefit was sought for all. There was no claim of a higher immunity or exception to be granted to political leaders.

Unfortunately, the Supreme Court felt that it was an abstract demand because there was no individual petitioner. It was pointed out in response to the court that political parties function through individuals, and these individuals are harassed and put in jail on such pretexts which ensures that there is no fair politics, democracy, and free and fair elections. 

However, the court was very hospitable and very generous with its time and told us that if you come with a specific case we will deal with it, expressing its inability to deal with the case in the abstract, and giving us the full liberty to withdraw at this stage, which means that there was no judgment against us— there was no compromising on the basic point— it was just left for another day.

Also read: President's secretariat stonewalls info on ordinances extending tenures of ED and CBI directors

Q: What do you make of Rahul Gandhi's conviction for defamation and disqualification from the Lok Sabha? Some are calling it a fiasco, and there is an argument that his legal team should have been more alert to the possibilities of the case. Do you think there were lacunae in the defence? 

A: I am always amused by the gratuitous, unsolicited free advice we get from the media, self-appointed lawyers and legal technicians, and self-appointed concerned members of the public in Rahul Gandhi's defamation and disqualification case.

Firstly, this attribution of a 'fiasco' must be addressed to the Bharatiya Janata Party (BJP) government, and to a system which is imbued with a sense of control and ambience of fear. It was not a creation of Rahul Gandhi that he, being a first-time offender, was awarded the maximum punishment of two years and disqualification within 24 hours. It was not Rahul Gandhi's creation that he was evicted from his house, and the courts are holding against him in cases where every possible indicator is that he should be allowed a stay over his conviction to enable his disqualification not to operate.

Yes, the matter is in the court and, therefore, we are taking legal remedies. Implicit in the term 'fiasco' is the assumption that before a judgment came, it should have been stopped or managed. I think that is an unfair assumption.

Almost every point relevant to the case has been taken up in the pleadings— they have been argued at the high court, where I appeared, and they have also been argued at the sessions court, where my colleagues appeared. Judgments are in nobody's hands, but certainly, judgments are a product of the system. They are, therefore, challengeable up to the Supreme Court.

But let me assure our critics that while we are touched by their so-called maternal care and concern, much of this advice is actually erroneous; some of it is dangerous, and exhibits ignorance of the law or political motivation.

Also read: Rahul Gandhi's lawyer lists ten reasons to appeal against his conviction

Q: Do you think Gandhi's speeches in the Parliament demanding action on the report by Hindenburg Research alleging that the Adani Group was involved in stock manipulation, accounting fraud and corporate governance lapses, had something to do with the resurfacing of the defamation case against him? If yes, what could be the remedy against such political vendetta?

A: I would not like to link things where I have no evidence. I can only state the facts. The fact of the matter is that the complainant files a case of defamation and goes to sleep for two years. Rahul Gandhi appears in the court once. The matter was put in the cold storage because the complainant went to the high court to stay his own complaint. That stay continues for two years.

Then, suddenly in February, contextually around the time when the Adani issue was raised, the complainant goes to the high court and withdraws the stay application. The high court allows it to be withdrawn, which means the proceedings in the lower court get activated. Five weeks later, a judgment is given.

I can only state these facts, conclusions are for the readers to draw.

Also read: Past investigations into Adani's businesses have come to nothing – Ravi Nair

Q: As head of the Parliamentary Standing Committee on Commerce, what measures have you taken to ensure that the details of the Adani affair are made known to the general public? How is the committee trying to ensure accountability?

A: The issue has not been raised, discussed or been a part of the deliberations of the Standing Committee on Commerce, which I head. If it had been discussed, it would come into the public domain only after a discussion. There is no disclosure prior to the discussion because these are confidential proceedings. But at the moment, there is nothing of that sort. 

At the moment, the Adani issue is something which does not relate to the committee. As and when members decide that it should be raised, a collective decision will be taken and the media will be informed. It would be wrong for me to speculate about the Parliamentary Standing Committee which I head without there being any agenda, any decision, any discussion, any deliberation.

Q: Is there a particular reason the issue has not been discussed by the Parliamentary Standing Committee on Commerce? 

A: The rules of the Parliamentary Standing Committee specify that there has to be a consensus and a clear decision by the committee as to which topics they choose to discuss. Unless and until that discussion has been done and a consensus reached by the committee's 28–30 odd members, the question is moot. 

Q: In the context of the Maharashtra political crisis, bringing the roles of the speaker and the governor into limelight; the tussle between the Delhi government and lieutenant-governor; and the broader tug-of-war between the judiciary and the executive, with salvos being fired regularly on both sides, do you think the strength of institutions in India, and mechanisms of checks-and-balances, are being tested like never before? Is it a cause of worry or will the institutions of democracy prevail without any intervention from the civil society?

A: Though the Supreme Court, in its wisdom, has refused to go the whole length immediately, as far as the fraud committed in the Maharashtra assembly to steal the legitimate government of Shiv Sena led by Uddhav B. Thackeray is concerned, it has heavily ruled in favour of the petitioners in this case. 

It has clarified that the Thackeray-led Shiv Sena was the 'political party' for the purposes of the law. It has recognised that only the political party, and not the so-called legislature party, can appoint the chief whip in the assembly. It has, thus, held the whip appointed by the Eknath Shinde group to not be legally recognisable. 

It has also underlined that it was wrong for the speaker to recognise the incorrect whip. Although it has said that Thackeray should have taken the floor test, it has clarified that the governor's decision to call for that floor test was illegal. 

So the Shinde faction has lost morally, ethically, politically and legally. 

The speaker has been told to decide the issue of disqualification of the 16 members of legislative assembly (MLAs) "with a reasonable time period". In our opinion, it is an open-and-shut case. If Thackeray's choice was the legal whip, as the court has agreed it was, then the 16 MLAs have to be disqualified for going against the party's chief whip. 

So now there are only two options for the speaker. Either he will dither over the matter, or he will have to disqualify the 16 rebel MLAs. In both cases, we are going to approach the court again.

I think the National Capital Territory judgment is even more historic, constitutionally speaking, because it tries to restore the balance between Centre and states. That is the reason they are trying to turn it upside down through an Ordinance. But this attempt is blissfully ignorant of the law, as the Constitution Bench of the Supreme Court had stated that the Government of National Capital territory of Delhi (GNCTD)'s civil servants are to be accountable to the elected government, and this cannot be changed by an Ordinance.

The second part of the question raises a larger issue, and without hesitation, I can say that rarely has there been an assault on the spirit of federalism across the country of the kind which the BJP-led government at the Centre has unleashed. Yes, there have been aberrations in the past. But this government has gone to the extent of appointing pliable governors, some of them puppets, clearly and repeatedly doing their master's bidding, not allowing state governments to work, and causing unbelievable delays on things which were never issues in the past.

Examples include the governor not signing bills passed, repeated, reiterated and pending after the assembly stage, and not having proper addresses to commence assembly sessions which are constitutionally mandated. Most importantly, they violate the spirit which Dr. B.R. Ambedkar talked about it in the Constitution Assembly debates.

Dr. Ambedkar said that you cannot have two swords in one scabbard. It is the elected chief minister, accountable to the people of the state, who is the master of all executive affairs in that state. The governor is not an elected person. Indeed, we are making him nominated. So we are doubtful whether anybody is prepared to accept the governor's position because he has very little, if any, power. The governor's role is limited to a few functions under a limited number of Articles of the Constitution. 

That entire conceptual underpinning has been turned upon its head by this government. Today, artificial use of empty rhetorical words like cooperative and competitive federalism has actually been reduced by this government to combative federalism. Therefore, institutions of democracy are clearly at peril.

Also read: Time ripe for building a broad unity against Centre's attacks on federalism

Q: As someone who has had an enduring interest in legal education, not the least because of the generous endowment you have made to the Jindal Global Law School, you have recently proposed that a separate broad-based group comprising academics, independent of the BCI, supervise legal education in the country. What are the reasons for this proposal? What do you make of the BCI's criticism of the proposal, in particular the issue that Indian languages, Indian culture and Indian civilisation have not been allowed to flourish because of which foreign languages and foreign education systems are still prevailing in our country?

A: As I have explained in writing to the chairman of the Bar Council of India (BCI), anybody who has heard or read the speech I gave under the auspices of the Jindal Law School would know that I said nothing to the effect that legal education should be hived off from the BCI. I was only stressing the need for having a semi-autonomous, distinct body of experts under the auspices of the BCI, to raise the standard of education.

I was not talking about the jurisdictional turf war at all.

According to me, legal education in this country needs revitalisation, rejuvenation and regeneration. The BCI has many, many roles. One of its roles is legal education, which it must conduct with the assistance of experts in an autonomous party which can make solid recommendations to the council for the overall action by the council itself.

One of the recommendations could be, for example, to lessen the number of burgeoning law colleges, universities and schools. Quantity has diluted quality. A second is to exercise strict quality control on established parameters like student–teacher ratio, libraries, campus, etc.

All this will happen under the BCI's auspices, but if the council takes expert advice and inputs from established bodies, it will raise the credibility of the council and improve the whole system in the country. The kudos will go to the BCI itself.

On the second part of your question, let me tell you that legal education is done as per the curriculum, and there is nothing Indian or non-Indian about it, unless it is in the curriculum. If you want to promote Indian languages, Indian culture and Indian civilisation, I think you should jolly well do that by including new things in the curriculum. 

It is not as if non-law subjects are not taught in the five-year or three-year law courses. By all means, these components can be increased, if the BCI really thinks that these elements are missing.

No general statement is right and a general statement as formulated in your question, which is the last three lines of your question, cannot be dealt with unless there is particularisation. Such particularisation can be answered simply by making specific changes, where necessary. Otherwise, all reform will be lost in generality.

Certainly, when you teach, for example, legal history, nobody can object to the inclusion of large components of Indian jurisprudence, of ancient times, and even of Mughal and British times. But that will have to come through curriculum reform, not generalities.

Also read: Justice Ramana bemoans the state of legal education; says sub-standard colleges in the country a very worrying trend

Q: What are your thoughts on the recent changes made by the National Council of Educational Research and Training in history textbooks, removing entire sections related to Mughal rule, references to the ban on the Rashtriya Swayamsevak Sangh, and the hatred right-wing Hindu groups harboured against M.K. Gandhi for promoting Hindu–Muslim unity? In particular, do you think it might be a good idea for India to have a 'basic structure' of history like it has for the Constitution, where certain historical narratives cannot be interfered with, or should history be left to the historians, whether on the Left or the Right? 

A: I don't think it is a question of Mughal rule. Or a question about M.K. Gandhi, or about Hindu–Muslim unity. I think behind that question lies the basic problem: we have a control-freak government that wants to re-imagine India in its own image. This control-freak government believes that by either erasing, effacing or rewriting history, things can be reinvented or forgotten and consigned to oblivion.

Also read: Erasing the past, blinding the future

Nobody suggests that everything in history is desirable or correct. Do you think the tortures committed in the Crusades can be desirable to humanity in any form? No. But that does not mean they are not part of history. Do you think that the atrocities committed by the hordes of people on horseback moving westwards from Central Asia are desirable? Can their actions be condoned? Absolutely not, but they were part of a different culture, and are as much part of our history as other historical events. Simply because, as the clichéd phrase goes, those who ignore or forget history are condemned to repeat its errors.

The point of the matter is that how much can you efface, erase and rewrite? Today, every insignia, every monument, every building, every name can theoretically be rewritten; not only along the Hindu–Muslim axis, or a right-wing–left-wing axis, but within Hindus along so many sub-castes, texts and sub-groups. Where will you stop? How many roads will you rename? How many buildings will you rename or demolish?

These are the larger questions underlying the other questions. I think there has been the obvious and pretty crude rewriting, which has been quoted in the media, which is obviously a slanted and motivated rewriting.

But setting these clear and crude examples aside, the larger question can only be addressed by the people of India in the form of a pushback that look, we are a 5,000 year-old civilisation, and in that culture, there is an ancient period, a medieval period and a modern period. There are the Mughals, the British, the Chauhans, and so many other dynasties, and you cannot give primacy to anyone, let alone erase anyone.