"At no point did I compromise with independence:" Senior Advocate Aman Lekhi, who resigned as ASG

Senior Advocate Aman Lekhi recently turned heads when he stepped down from the post of Additional Solicitor General (ASG) on March 4. After representing the Central government in the courts for almost four years, he is expected to resume his private practice today.

In this exclusive interview with Bar & Bench's Debayan Roy, Lekhi talks about why he resigned, his views on the role of a law officer and his take on recent contentious issues like the hijab controversy, Sedition and the abrogation of Article 370.

Edited excerpts follow.

You took charge as ASG in 2018. It has been almost four years now since you have been arguing for the Centre. How was that experience?

It has been a wonderful experience. I enjoyed my journey as a law officer as it was something new and extremely different. When I look back at what I did, I can say that the position gave me a lot of opportunities, though there could have been ways in which it could have been made more fulfilling.

The question on everyone's lips is: Why did you resign?

My resignation was motivated by considerations which were completely subjective. As the position warrants, I am not required to justify my resignation. I have a feeling that if you are consumed by the post, at some point in time, you become very cavalier in your approach, and then the performance becomes very unedifying.

If you reach a point where you feel that holding the post defeats the purpose of holding it, and that you may not be as effective as you want to be, then the right thing to do is to resign rather than compromise or have a trade-off, or continue with a feeling of deficiency about your performance.

I chose that option (to resign) because I felt I did the maximum I could do and despite my desire to do more, I could not get an opportunity to do more or to use this office for purposes I thought it could legitimately be put to. Hence, I decided to resign.

Everyone has got an exaggerated notion about themselves including myself. When you have that kind of disproportion in your imagination, the dispensation gets distorted. My view of things could be in some way be affected by my assumption in myself of a capacity that I may be lacking. For that reason to ask something which is beyond my ken, that might be the reason.

It is for the government to decide how much I worked. It is not for a lawyer to seek work. I have never sought work, and I don't think it behoves a lawyer. I always treated the government as a client. I think it's the job of a lawyer to advise and it's not the job of a lawyer to be advised.

A lawyer will hear what the client says and tender advice on that basis. It is for the client to choose the advice or disregard it. If the client chooses to disregard the advice, it's the sole discretion of the client and the duty of the lawyer ends with the advice.

So you are saying that the independence of a law officer's legal opinion remains intact?

I have very strong convictions, and whatever I did, I chose to do on the terms which I thought were correct.

I carried it on with my resignation too, because I felt that the time has come where it would be better if I demitted office.

How did lawyers and judges react to your resignation? Did you receive any calls to reconsider?

Judges have no role to play here. But yes, a lot of lawyers (called me). I was indeed asked to reconsider. But I always feel that there is a right time for everything.

Having taken this decision for reasons which are very personal, to revisit that particular decision would have been incorrect in every way. If I believe what I did was correct, then I cannot change that decision merely on a request as it will put serious doubt on my own faith in my conviction.

[Watch the video interview]

Over the course of your career, you have appeared in many contentious criminal trials. How do you defend clients who you know are guilty?

We are in the legal system that itself gives rights. It provides a mechanism for the enforcement of rights. When a case comes to a lawyer, it should not be seen subjectively from an ethical perspective, in a purely normative sense. It is an invitation that is actually given to those engaged in the process to address the issues raised on the basis of what the system considers fundamental for its functioning.

There may be times when while appearing in a matter, you are convinced of the wrong or the guilt. Speaking for myself personally, in cases where I feel a defence will be indefensible and I am absolutely convinced that a plea would be a merely technical one to overcome an obvious wrong which the law must address, I have at times chosen to avoid these.

However, every case is not that straightforward and issues overlap. When such overlaps happen, you have to give law a chance to decide whether on the principles which law postulates, right or wrong, can be established through a legal process.

You are putting the wrong to a legal process to see if at all it is wrong. This is a question put to most lawyers and this is the reason why lawyers are often maligned or ridiculed. But those who malign and ridicule miss the fact that those condemning the lawyers must at one time have been a victim of false accusations. So rather than being misled by the accusation, you may as well give trial a chance.

Have you ever been faced with a situation where you found it unconscionable to argue a stand taken by the Centre? What does an ASG do in such a situation?

I am very clear on this concept. The beauty of a law officer's position or that of any government lawyer is that you are never an antagonist. You are the protagonist. Since it is the government that is pitted against its own people. While the government is in a litigious relationship, it is not necessarily adversarial.

In a situation where I have felt the government is wrong, or I have been convinced that the cause being agitated is such that the government should concede, I think it will behove a government counsel not to persist with the point.

However, the job also gives you an opportunity to go after those who make the system or exploit and abuse it. Through this position, you can be unsparing on those who deserve the law's harshest punishment to be visited.

So, the position gives you a wonderful opportunity to have a very clear conscience, and if you have a conscience that is alive, to proceed in a manner that is in every way just. This is a very fulfilling feeling, since that is the whole purpose of the process.

You have been the face of several cases surrounding the Unlawful Activities Prevention Act (UAPA). Is the clamour around the unconstitutionality of the Act worth any substance?

No law is ever meant to terrorize. No law should be used to terrorize. Law embodies a punitive aspect of governance and that aspect is for a purpose. The purpose of the punitive aspect apart from deterrence is several other aspects including reform. Deterrence is very important. Unless the sanction of law is there, lawlessness will prevail. But also. merely because the law gives you an opportunity to impose a sanction, it does not necessarily give you the right to invoke it for no reason. The problem is not with the law, the problem is with the invocation.

The test of invocation will actually govern the quality of governance. If the law is misused by its frequent invocation or hasty invocation or its invocation for say political considerations, then it defeats the very purpose of the law.

It will then be seen not as a sanction, but as a tool for vendetta. Law can never be used as an instrument of vendetta.

What happens these days is that a challenge to constitutionality is the surest means to get notice issued, and along with that, you get interim injunctions. Of course, now courts are disinclined and see it with disfavour.

As far as ordinary people are concerned, they will be in a state of perpetual confusion as to what is actually the law and this is ominous for society as the law itself becomes ambivalent due to misuse on both sides. This will create chaos and confusion which we are unfortunately now witnessing today.

This is because now there is a cacophony of voices talking in a manner which conflicts with respective positions and only the well-read can see through it. The uninitiated will be at sea and aghast at what is going to happen. We have to guard against this.

The Delhi Riots cases have taken up a lot of the judicial time of the Delhi High Court and trial courts in the capital over the past two years. Do you think the prosecution did a fair job in the case or was there something more to be done?

As far as cases are concerned, admittedly there was violence. There was arson and there was also spewing of hate. Situations like these invite attention and when they invite attention, they invariably attract legal provisions.

While we are invoking the law, you don't argue for 'othering' anyone. You don't argue to bring some kind of division or segregation. You don't argue for prioritising a particular view or privileging a particular community.

The argument is to ensure that what is being stated is something that can be accepted by a court. When I dealt with these matters, I confined myself to only issues before the court. As far as those matters are concerned, a lawyer's job is to present the facts.

Now when a lawyer presents the facts, he/she should do that without colouring them or without presenting them in a motivated manner. I had told the Delhi High Court that there are loonies in every community. It is for the one responsible in society to stand up and be counted, because if you let loonies roam free, then there will not be a society left for those who are responsible enough.

It is here that the role of the court is important. The judge always knows there is a contrary position to the stand being taken. The court sees through the contest, sees the larger picture, and brings about a resolution that will be appropriate in the circumstances. What binds us is the order and argument is not the law.

In this entire exercise, the buck stops with the court. The role of the court is absolutely the most important when we talk of the Delhi Riots. Lawyers may take positions which may be partisan due to misadventure or ill-advice. But it is for the other side to contest and basically for the court to decide and justice to prevail. The most important institution today for us is the court. That responsibility cannot be shared by anyone nor can it be made subordinate to anything.

Since you are no longer associated with the Central government as a law officer, I would urge you to put forth your opinion on the Hijab controversy.

I feel we have to see this entire controversy under freedom of speech, subject to reasonable restrictions. I will not frame the issue as one relating to freedom of religion, but as one relating to freedom of speech. When I put it as speech, I feel it will have better resonance than religion, because religion becomes a very emotive aspect and as soon as religion takes centre stage, polarisation becomes severe.

I am a wholehearted supporter of freedom of speech. I don't subscribe to the example of French society, because I feel Indian society is very different and we are far more spiritually engaged than the other societies.

Our model of secularism does not entail a complete divorce from religion and that is why we cannot import concepts from milieus that are very different. We have to in some way indigenise our jurisprudence to suit circumstances.

Hijab should not be used either as a weapon of religiosity or for politics. We have to see how this controversy evolved and why it evolved. The problem today is that emotive issues are being used not because the issue is relevant, but with an intention to motivate different sections of the society towards particular agendas.

My objection is not to hijab. I don't think merely wearing a hijab by itself is an issue, but you don't wear a hijab to make a point consciously or for deliberately violating a rule. You (should) do it for a reason you can justify, and not as a ploy or tool for an agenda.

That said, all of us are entitled to dress and be the way we are without any limitations which are in some way excessive or unnecessary. We must be careful to ensure that the feeling of community which is absolutely indispensable for any nation is not unnecessarily hampered or hindered through trivialities that are made into big issues only to serve political agendas on both sides.

The missed point is that it is not just hijab, it can be purdah. It can be other malpractices in different communities like dowry, child marriage, etc. It is not that all ills are restricted only to one community. It is very dangerous for a country to give respectability to regress. We have to progress forward. My problem with hijab issue is it has been framed as a religious issue and has polarised (communities). It is seen by communities as one on which survival hinges. Once that is so, then measures that are detrimental in the long run get respectability.

Everything cannot be done through court or rules or mandates from the court. We have to understand that. If we believe otherwise, we are being foolish. I don't like using specific community names such as Hindu or Muslim as it creates a division in the mind. We have to do things together so that we can grow, because if we have divisions, we cannot have a future. I am a firm believer in the future and think that belief should overcome the divisions.

How do you analyze the status of freedom of press and expression in the country at the moment?

There will always be freedom. We are a constitutional polity. We are governed by rule of law. The only restraint on fear is favour. Those who complain are actually cloaking the fear for their omission to speak. If you are fearless, a system will survive. There are enough provisions in our system and it has enough vitality to stand up for those who claim that freedom. But it is not for those who choose not to invoke it.

If you behave in a cowardly manner, any kind of repression which is put on you is something you invite because you choose not to stand up. As long as you have spine, the spunk and guts to stand, the system will always protect and there cannot be any strength bigger than the system we have. A capacity to invoke it should be perpetually intact.

Before PILs became a fad and before we had the term 'activism', my father (Senior Advocate Pran Nath Lekhi) was an activist at a time with no media and no protection. He was a fearless man and no government could ever stifle his voice and it behoves all of us to be fearless. If we are fearless, there is nothing which can stop our voice from being heard. It's a question of personal choice. If you want to be a coward, don't blame the system.

Critics have been pointing out that important constitutional law matters such as the challenges to Sedition, the Citizenship Amendment Act and the abrogation of Article 370 are lying in cold storage. Do you think it's time for the Court to take up these matters on priority?

It is for the judges to take a call since they design the roster. My views on Article 370 are well-known. Kashmir is an integral part of India and that cannot be doubted or disputed. But that said, because I am convinced of my position, I should be in a position to indicate it.

I want such matters to be heard not because there is any priority in the matter, but because the hearing of the matter would itself vindicate the position that the stand taken as regards Article 370 was indeed correct. Delaying it will give an impression that there is something to hide or factors to defend. That does a fair amount of damage to the cause.

The problem with the so-called delay is that it gives gist to the mill, which seems to suggest that there is some inherent weakness in these issues. This motivates the criticism of a section of people who gained legitimacy.

Because we delay, evade and avoid to confront, it gives potency to views which are harmful to our country.

Regarding Sedition, I personally think it is very important that Section 124A (of the Indian Penal Code) remains. Many of the arguments raised against it are misconceived in law. I am also aware that the problem is not so much in the content of the section, but the frequency of invocation. Since these are serious offences meant for grave situations, some of us who invoke them must not trivialize them by invoking such provisions in situations that do not necessarily warrant the invocation.

Apart from that caveat, I am completely in favour of retention of this particular provision. In the environment we are living in, not just in India, having a subject dealing with Sedition is absolutely obligatory for any penal system. To say that there can be no Sedition law is something I balk at.

I think this is libertarianism in the extreme, and cannot possibly be justified in broader principles of liberalism which are actually in vogue to somehow justify the criticism.

There have been arguments that the Prevention of Money Laundering Act (PMLA) is in conflict with the provisions of the Code of Criminal Procedure (CrPC). How far do you think the PMLA has served its purpose?

I think money laundering is an important subject and as far as the importance of the Act is concerned, it is undisputed. The challenge to its constitutionality, in my opinion, is suspect. Yes, a few of its provisions are capable of being construed in a manner that falls foul of the constitutional mandate. But it is for the courts to interpret it in a manner to keep it in consonance with the Constitution.

It trite that abuse by itself will not render an act ultra vires. Speaking for myself, and having examined the matter in depth, while some aspect of it may be dealt with by construction, I do not think as a law PMLA falls foul of any constitutional inhibition.

Yes, we have provisions like Section 50 PMLA and others that obligate a person to speak the truth, which is something which is still inconsistent with general law, as even in IPC, omission to do what is mandated by law is yet permissible as prosecution.