Equal regard for all is a civilisational aspiration for the republic — Attorney General R. Venkataramani

"The Constitution is strong enough; the people are strong enough. The 'challenge' to our republic seems only to be somewhere in the fringe areas where the inability of a certain set of people to abide by equal regard for all creates some problems."

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LAWYER, jurist, activist, author, teacher, poet and a mentor to many, R. Venkataramani is currently serving as the sixteenth Attorney-General of India (AGI). Born on April 13, 1950, he has been a Senior Advocate at the Supreme Court of India, and is a well-respected constitutional lawyer of the country. He is the first Advocate on Record (AoR) to be appointed AGI.

During his four decades of experience at the Supreme Court, he has argued a wide array of cases, ranging from constitutional issues to taxation.

In the past, he has served as a member of the Law Commission of India twice, in 2010 and 2013. He was a co-opted member of the expert group constituted by the Union Ministry of Minority Affairs to examine and determine the structure and functions of an Equal Opportunity Commission. He was a member of the ethics committee of the Indian Council of Medical Research by invitation.

Venkataramani has also served on the sub-committee on Directive Principles of State Policy, constituted under the chairmanship of Justice M. N. Venkatachaliah to review the Constitution. He was a law member in the Expert Group on Welfare Legislations set up by the Planning Commission of India in 1990.

Despite these engagements, he has found the time to pursue writing and teaching, following in the footsteps of his teacher and mentor Prof. N. R. Madhava Menon. He is attached to several law colleges, and he uses summer vacations at the Supreme Court to take classes.

He has been a part of the South Asian Task Force on judiciary, consisting of members of SAARC nations. He has also worked with the International Court of Justice on its activities in the Afro-Asian region, and drafted an instrument on the Right to Food in Berlin.

Always a soft-spoken but assertive lawyer who lets his arguments speak for themselves, he spoke at length with The Leaflet on a wide-ranging list of topics concerning the republic as it enters its 74th year.

Q: What are your views on the health of the republic?

A: I don't see any reason for scepticism. History — in particular constitutional history — bears witness to the fact that every nation follows a unique path on a long timeline.

Look at the United States (US) and its 300 years of constitutional history. There have been long disagreements between the Republican and the Democratic Parties, and the lines of argument have been shifting constantly. The debates of a century ago are not the debates of today, except that we continue to use certain broad labels like left, centre-left, right, but even these are not always used in the same sense in which, for example, they were used when [German philosopher, author, social theorist, and economist Karl H.] Marx first began to write about socialism and how he differed from the utopians or thinkers like [French socialist, politician, philosopher and economist Pierre-Joseph] Proudhon.

I don't think there is a reason for scepticism because the things that really matter are in place. People of this country have become strong enough and bold enough to stand up to any injustice. There still exists a robust system to allow different points of view to be expressed freely. People have the wisdom and maturity to balance different viewpoints existing in the public arena. So I think the republic will endure. Let us not create unrealistic negative pictures.

I would keep away from voices that say current developments in political thought in India are dangerous and the future looks bleak. Look at what is happening in China. Look at Russia. These are countries that went through a great revolutionary period and promise of socialism. See how much they have changed. Hungary used to call itself an atheistic nation in its Constitution, and now there has been a revival of a different kind of thought in Eastern European countries. So I suppose no part of the world is doomed, and our country certainly is not.

Also read: Idea of Republic is Just an Abstract One

Q: As someone who has stood for progressive thought, ideas and practice throughout his career, do you see issues like unionisation of workers, fair compensation, privatisation, and protection of the rights of workers and small landholders as areas that would continue to remain relevant and important, or will they be subsumed under a different kind of politics?

A: They will continue to be important for some more time to come, probably till we are able to reorient our economic and social organisations and views on a broader platform. Socialism talks about class contradictions, but class accommodation has always been taking place. The world economy is changing, and the economy is no longer being organised in the way [Russian writer and socialist] Maxim Gorky described when he wrote to his mother that factory workers came out with "somber faces [and] hastened forward like frightened roaches".

When I say this, I am also thinking of some of the failed pursuits of socialism. The most important factor today is that we have a Constitution and it provides for a range of freedoms for all. I think innovation, creativity, and the freedom of pursuit, in economic, social and political spheres, coupled with equality for all are the greatest challenges for humanity now. If you stifle freedoms and participation, then we will end up in a different kind of totalitarianism. China is a good example of what happens when you don't have a proper balancing act. So I think the challenge today is a global concern and that is to balance freedom, innovation and creativity with equal regard and equality for all.

It is also important to redefine equality. We need to cross a lot of bridges before we can bring down all the barriers of wealth and status. I see people complaining, 'Oh, but only one or two per cent of the population of this or that country owns most of the wealth.' But that has always been a fact; that is how capitalism has always worked.

But there is another aspect of it to which people do not pay enough attention. As the great teacher Prof. N. R. Madhava Menon used to say, when people talk about economic theory, they do not pay enough attention to the range of laws that govern all aspects of property rights, for example, that of ownership of land and the right to own land today in comparison to the pre-constitutional era. Today, there is enormous regulation of property rights. Whether they are good or inadequate is a separate debate, but the fact is that the classical definitions of freedom to own property have undergone tremendous changes, and in the right direction. So, maybe, if we move further in that direction, while ensuring that freedom of creativity and innovation is preserved, I suppose it will be something everybody will cherish.

Why do we talk about privacy? Why do we talk about so many other connected rights? They are manifestations of the same debate. So I think these questions will continue to remain important as they need to be attended to, and I have no doubt about that.

Also read: At 70, our republic is gasping for a rational political cultural

Q: It is interesting that you should mention privacy in this context. Do you think some of these traditional right versus left debates, for example, about the balance between government and State control on the one hand, and individual liberty and freedom on the other, will increasingly be transcribed into new issues like privacy? What will that entail for our legal system?

A: You are right, because the old questions framed in binary ways have lost their framework. But concurrently, you have books like Age of Surveillance Capitalism (2019) being written. The debate on public and private control over mind because of technology has come alive. [British writer] George Orwell, who wrote the famous books 1984 (1949) and Animal Farm (1945) comes to mind, right?

Today, the line between public and private is obliterated because it is no longer in the material sphere where KGB would come knocking at midnight in Soviet Russia, or people will physically disappear in some other countries. That materiality of control has become secondary, as law and technology has transcribed it into something else.

Two books I have been reading recently come to mind. One is World Without Mind (2017) and the other is The Internet Is Not What You Think It Is (2022). So the traditional prism of examining control of the State or government has become narrow and outdated. We need to shift our framework for discussion to questions like how much power over our mind we need to yield to somebody — be it the State, big corporations or private parties.

Q: Another binary that has been in the limelight recently is cultural nationalism versus constitutionalism and which one takes precedence. In your opinion, what values does the Constitution protect that can be problems for the Constitution?

A: The Constitution is the protector of many values, as it must be. Each one of them is of equal importance because the Constitution protects them all. Diverse are the beneficiaries of the rights granted by the Constitution. There is a clash of values, cultures and ideas, and these differences need to be handled wisely. That is why the Constitution says 'I will protect all ideas, cultures and values equally, but each one of them must have equal regard for the other' — that is a civilisational aspiration. Therefore, to say that there is a conflict between culture as propounded only in certain circles and the Constitution may not be the right way to look at things. Each faith must abide by equal regard.

But unfortunately, we have developed a genre of literature and thought based on narrow and linear views and monolithic viewpoints, including the leftist ideology. Fringe elements have strong points of view and I do not think the fringes define the centre. This is where the majesty of the Constitution comes in, and that majesty will never fade away.

Q: So, in other words, you are saying that the Constitution will be able to absorb any challenges to it?

A: Yes, and it may not really be right to call them challenges emanating from one faith because all faiths are part of human creation and history.

If you want to look at a future where there will be no culture, of any faith, I think I would dread such a civilisation. I would not like to live in the peace of the cremation ground. A constitutional view or debate that denounces a culture or looks at any particular culture as undesirable is no neutral value.

Also read: Republic Day is a reiteration of our collective commitment to the Constitution

Q: What are your views on the Basic Structure of the Constitution? Is it a hindrance, a necessary evil or a guiding light?

A: It is an important milestone in the constitutional history of our country, and if it had not happened, one may probably wonder whether the current constitutional dialogues would have been born at all. So, there is an umbilical connection between the birth of the Basic Structure doctrine and current constitutional developments and debates.

Let me have a digression to talk about 300 years of US constitutional history. I was working on a case related to the right to religion. To my great surprise, I found out that the [Mongol emperor] Genghis Khan is shown as a source of inspiration for [American statesman, diplomat, lawyer, architect, philosopher, and Founding Father] Thomas Jefferson on the equal regard for all faiths. A very learned author in the US has written a book called Genghis Khan and the Quest for God (2017). It is very revealing.

The reason I bring it up is because there are certain ideas which become an embedded part of a Constitution, in the broadest sense of that word, which may travel beyond any written period of history and become a part of perennial human ideas. But some ideas have a historical value and are relevant for a journey up to a point and beyond that point, we need to discover more constitutional moorings or new governance ideas. The Basic Structure doctrine may not be seen as a fetter on the freedom to govern.

For example, one of the central tenets in Marxist thought is that the State withers away and everything becomes a matter of administration. Rhetorically speaking, these are nice ideas, but when you come to actual governance, the position is different. Similarly, our own parliamentary institutions may also require a certain relook, in terms of people's active participation in public and political life beyond voting a party to power.

So, while the Basic Structure is certainly one of the most important pillars that have served our nation and strengthened our Constitution, I think there are certain areas where governance freedom may also be looked into. These are all issues worth pondering over, and let us not close our doors on the issue.

Q: You say that certain ideas may lose their importance and value after a certain point. But the Basic Structure doctrine only subscribes to addition and no deletions. How does one reconcile with this fact?

A: The first thing to ponder over is: should we keep on adding to the Basic Structure. We have all the debates about Article 368 [of the Constitution]: whether the will of the people was finally cast when the Constitution was drawn, or it always exists as democracy works its way through. Therefore, in what ways can the will of the people change? I think there should be space for that debate.

Also read: Thoughts on Republic Day: Move over constitutional amendment; just safeguard the rule of law

Q: What do you think are the biggest challenges for the legal community in India — challenges of law, but also legal policy and the administration of justice?

A: I am beginning to think that we must, as soon as possible, part with the adversarial system of administration of justice. We have economic and social inequalities, where the justice needs of different sections of the community are different and need to be addressed differently. Our mode of law-making and administration of justice are cast in a particular way. We need to move away as much as possible from the adversarial system while not completely abandoning it, because there are certain values in it which protect the rights of citizens.

There is a need to move towards more flexible and participatory administration and institutions; for instance, the idea of mediation and the Bar playing a very important role in resolving issues and disputes rather than dealing with them through prolonged procedural complexities, where every procedure becomes a right in itself.

To illustrate, and this is not a direct analogy, there is a question as to which is more important, freedom of expression itself or the means or tools to use freedom of expression — the media, or the newspapers or the print media. This question arises because today, the tools of freedom of expression have become indispensable, and the freedom of expression and its tools have merged into one another. You can't take the medium and the tools away from the freedom of expression itself.

Similarly, today the system of administration of justice has blended with certain ideas of doing justice. When I examine my experience with the Law Commission, I think of the manner in which we make laws, and the way we entrench ideas into rights and conflicting rights, which can produce more and more rifts and conflicts in the community. We need to think about how rights-based administration of justice can really work over a period of time.

I remember reading a book on the application of laws in the education system in the US. The author cautioned against the 'stealing' of a teacher's moral responsibility towards the students by laws. If you say a value which a law wants to bring in is equal to a humanly evolved moral value, there could be some problem. Are we moving towards a state where we come to think that we no longer have the capacity to have moral views?

Q: How do we achieve a balance between rights and values that transcend rights — moral and ethical values?

A: Achieving this balance is not an easy task. Where do you shift from the highways to the by-lanes and come back to the highways is itself a very challenging issue. I went into this idea because while I believe that the Constitution must continue to guide us on important matters and act as a roadmap for rights, it is equally important that certain broad social structural matters are reordered.

At the same time, I think the moral and ethical responsibilities of citizens should remain vibrant and free, and citizens should be asked to take responsibility for their ethical and moral views. Today, too many of us are in the thralls of a discourse that we can create an exhaustive framework of rights and transform every aspect of life into a right. This discourse is accompanied by philosophical debates of left versus right and East versus West and so on, even when they are not relevant. There is a nice expression called 'geography of thought'. The geography of thought is important.

All ideologies can become blindfolds when ideologies tend to denounce any opposite view and paint them with clichés; they enter into a questionable arena. So I must be guided by my innate sense of humaneness. But sometimes we shut it down. We seem to be creating sophisticated walls of separation full of intellectual gymnastics, and that is a problem.

Also read: It is time to reclaim our Republic

Q: What do you think is the most serious challenge to republicanism in India? And where do you see the hope?

A: I don't think there is a challenge. The Constitution is strong enough; the people are strong enough. The 'challenge' seems only to be somewhere in the fringe areas where the inability of a certain set of people to abide by equal regard for all creates some problems. As long as we are strong enough to believe in equal regard for all, I don't think there is a challenge.

In conclusion, I am hopeful that we will continue to be strong, independent citizens guided by a robust and dynamic Constitution, with courts acting as deliberative institutions.