Governments prefer lawyers who understand and agree with their policies: Tamil Nadu Advocate General R Shunmugasundaram

In this interview, Shunmugasundaram talks about political appointments, the State's opposition to the EWS reservation, Jayalalithaa and more.
R Shunmugasundaram
R Shunmugasundaram

Designated Senior Advocate, veteran prosecutor and former Rajya Sabha Member of Parliament R Shunmugasundaram took over as Advocate General for the State of Tamil Nadu in May 2021 after the DMK came to power in the State. His was one of the first political appointments made by the new dispensation.

With an experience of over four decades at the Bar, Shunmugasundaram is perhaps best known as being the lawyer that aided in proving the disproportionate assets against former Chief Minister J Jayalalithaa.

A second generation lawyer born in Tirunelveli in October 1953, Shunmugasundaram started his career working as a junior to the legendary criminal lawyer N Natarajan. His father S Rajagopal was public prosecutor and special prosecutor for the Central Bureau of Investigation (CBI) in Madurai.

He was appointed as a counsel for Tamil Nadu before the Justice MC Jain Commission that probed the assassination of former Prime Minister of India Rajiv Gandhi. He was also amicus curiae in the London Hotel case against Jayalalithaa.

In this interview with Bar & Bench's Ayesha Arvind, Shunmugasundaram talks about political appointments, the State's opposition to the EWS reservation, Jayalalithaa and more.

Edited excerpts follow.

Ayesha Arvind: Tell us about your early years. What drew you towards law?

R Shunmugasundaram: I grew up in Madurai. My father was a leading lawyer and a public prosecutor. His father was a corporator in Madurai during the British Rule. At that time, I think there were around five municipal councilors and he was the first Indian to have been elected as a municipal councillor in 1913. He was also the Vice-Chairperson of the  Madurai municipality.

I wanted to be a journalist, but there were not many journalism colleges at that time. I think there was one in Bombay. But around then, a law college came up in Madurai. I joined that and became a lawyer. I realised I couldn't be as sincere as my father, and I thought I would fail in my profession. But my senior, Mr N Natrajan, shaped me. He  was a great man and a great lawyer.

AA: On May 30, 1995, while you were finalising the London Hotel case, in which former Chief Minister Jayalalithaa was accused of having disproportionate assets, you faced a brutal physical attack. Did that incident deter you even for a moment from pursuing the case?

RS: It was disturbing. It is like trauma. It is traumatic for not just my family, but also my friends. But never did I feel that I must not pursue the case. Even after that, I was the prosecutor in all the cases of corruption, disproportionate assets etc against Jayalalithaa. From 1996 to 2000, I was the State Public Prosecutor. I pursued all the cases against her and her cabinet colleagues. I adduced all the available evidence. The London Hotel case is where the evidence was collected in pursuance of a letter rogatory  by the team led by me. I went to London and sat with the Serious Fraud Officer (SFO). It was one of the rare cases where our Court sent a special request to the courts in other countries, asking for their help.

I led a team of investigators and had a week-long discussion on this, and we convinced the investigators there. Initially, there was a little hesitation on the SFO's part because they thought  that it was merely a case of dealing in foreign exchange. They said while that might be an offence in India, they would not assist unless it was a crime their country. So, I had to convince them that it was  a case of bribery and corruption punishable in the United Kingdom. And thereafter, they helped. In fact, I collected a lot of material and came back.

Former Chief Minister of Tamil Nadu, J Jayalalithaa
Former Chief Minister of Tamil Nadu, J Jayalalithaa

But that case was damaged after Jayalalithaa joined hands with the then government at the Centre. The enforcement officials became hostile and they gave contrary statements. But we collected a lot of material and used it later. Like that, I also led a team to Australia to investigate the coal deal case. Here, I prosecuted and you know the end result. Jayalalithaa was convicted.

AA: Former Advocate General for Karnataka BV Acharya has spoken of the hardships he faced during the disproportionate assets case against Jayalalithaa. Did you have a similar experience?

[Senior Advocate and former Karnataka Advocate General] BV Acharya was was harassed by Jayalalithaa's men.
R Shunmugasundaram

RS: I will tell you about BV Acharya's case because I know him. He was harassed by Jayalalithaa's men. The DA case against Jayalalithaa was transferred from Tamil Nadu to Karnataka because the AIADMK came to power in 2001 and compelled many of the witnesses to turn hostile. And the witnesses, who had already deposed in the case, appeared again and made statements contrary to what they had deposed earlier in court. This evidence was being led in favour of Jayalalithaa. At that time, she was the sitting Chief Minister. The Supreme Court noted that the prosecution was hand in glove with the accused. The Supreme Court directed  that the prosecutor should be a senior lawyer chosen by the Chief Justice of High Court. Mr BV Acharya was appointed by the Chief Justice of Karnataka High Court. Such a reputed man was harassed by Jayalalithaa's men. Complaints were given against him to the Karnataka Lokayukta. Therefore, he resigned. He did not resign voluntarily, he was harassed and compelled to resign. We then took it up before the Supreme Court and argued together. And the rest is history.

Senior Advocate and former Karnataka Advocate General BV Acharya
Senior Advocate and former Karnataka Advocate General BV Acharya

AA: You took over as the AG in May 2021, when the second wave of COVID-19 was at its peak. How did you navigate through all of that?

RS: Justice Sanjib Banerjee was a fantastic Chief Justice. When he took up the suo motu PIL, the pandemic was at its peak and Tamil Nadu suffered many cases. Justice Banerjee made it very clear that he was not going to suggest any change or to adopt any new methods of handling. He said he was only going to oversee and to assess how the government was handling the situation. The government was kept on its toes and it kept reporting to the Court whatever it was doing. So, it was good in a way.

Former Madras High Court Chief Justice Sanjib Banerjee
Former Madras High Court Chief Justice Sanjib Banerjee

AA: You were a Rajya Sabha member nominated by the DMK. So, is it a trend that a law officer is appointed only if his or her political ideology is the same as that of the party in power in that state?

RS: Yes, whenever a new government is formed, they will prefer a lawyer who understands their policies and agrees with it. Nobody can find fault with it. It is just like when someone engages a private lawyer. The client should have faith and confidence in the lawyer and the lawyer's conscience must agree with whatever case he is taking up, and for whom he is doing it. So, this is the accepted practice everywhere.

AA: Has there even been an occasion when your opinion was in conflict with that of the state government's?

RS: On policy matters, I advise and they accept. And there is never a disagreement, because I have known them right from the beginning of my career. As a defence lawyer also I have handled many of their matters. So, there is never an occasion of conflict on that aspect.

AA: Union Law Minister Kiren Rijiju recently spoke about judicial overreach, and was also critical of the Supreme Court questioning the government on the delay in processing the Collegium's recommendations. What is your take on the issue?

AG: He said something I think on the National Judicial Appointments Commission (NJAC), Collegium recommendations etc. I wrote a paper on judicial overreach that was published in London and in the Ambedkar Law University at Chennai. The Constitution is very clear on the separation of powers between the executive and the judiciary. Due process should be followed.

AA: When the political party heading a state government is different to the one in power at the Centre, does it complicate litigation? For example, when the RSS had wanted to conduct a route march on October 2, it alleged that the State of Tamil Nadu was prejudiced against it.

RS: Actually that is good for democracy. As long as all political functionaries act responsibly and take decisions as expeditiously as possible. The RSS is not a political party. Secondly, their procession was not opposed by the State government in total, because everyone in this country who wants to express themselves or conduct a peaceful procession is allowed to do so. It is not banned. It is their fundamental right. But, the RSS was insisting on a route march on October 2. This was a new proposal. They have never done this before. Certain district administrations raised objections citing local  law and order situations citing that they (RSS) were in the habit of instigating communal disharmony. That is what the police report said, and that was placed before the Court.

AA: The Supreme Court recently released the six life convicts in the Rajiv Gandhi assassination case. Do you have an opinion on it?

RS: See, number one, there are totally seven convicts who have been released. First one was Perarivalan. After Perarivalan, Nalini attempted here in High Court, but she was unsuccessful. After dismissal here, she went to the Supreme Court. There, all the six joined. The time gap between Perarivalan's release and theirs is more than five months. There was no review petition filed for Perarivalan. There was no controversy. The release of these six convicts now made the opposite political groups to challenge their release, that it is out of political compulsion. The release is not total acquittal. They know very well that this release is just as per law and they are out of prison. They have not been given a clean chit. A clean chit is only when the court acquits someone of all charges.

AA: The State of Tamil Nadu has refused to implement the 103rd Constitution Amendment that provides for a 10 per cent quota for the economically weaker sections (EWS) of the society. How does the State justify this stance?

RS: See, Tamil Nadu has a history on reservation. The Constitution provides for reservation for the socially and educationally backward, which is a class for reservation. There is nothing called as "economically backward" in the Constitution, because the Constitution makers knew very well that today one might be economically weak, but tomorrow that situation might change; it might improve. On the other hand, social backwardness stems from years of suppression. For historical reasons, for several hundred years, some groups remained backward. They were not allowed to get education. They could not get decent jobs because they were not educated. And that was how the South Indian Liberal Foundation (SILF) was formed. The SILF later became the Justice Party, named after a magazine it used to publish called 'Justice to All.' This is the history of reservation in this part of the country.

Once they (Justice Party) came to power in the 1920s, they brought this communal reservation based on religion and caste. This was the method being followed then. And after that, the first Constitutional (93rd) Amendment was brought in, providing reservation for the economically and socially backward.

"No one is genuinely interested in uplifting any community or society to accelerate the progress of this country."
R Shunmugasundaram

The first Backward Commission (Sattanathan Commission) in the country was formed here, in 1969. The statistics then showed that the Brahmins, who accounted for just three per cent of the Tamil Nadu's population, was occupying 75 to 80 per cent of government jobs because they were educated and the others had been kept away from education. So, the government in Tamil Nadu continued to give 69% reservation on the basis of the data collected by various commissions. And for your information, there is no cap of 50 per cent on reservation. The general view of the Supreme Court is that reservation should not exceed 50 per cent. But even the Indira Sawhney judgment says in a deserving case, and as per the necessity, reservation can exceed 50 per cent.

This 10 per cent reservation for the EWS category is not a Constitutional criteria for reservation as per Article 15(4). This might have  been done only to appease a certain group, to get their votes. No one is genuinely interested in uplifting any community or society to accelerate the progress of this country.  So, on this principle, Tamil Nadu opposes the amendment.

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