IN THE COSMOS of the Indian establishment, the Supreme Court is a central galaxy. Its brightest stars, the senior advocates, can be seen gliding across the plaza outside the chief justice’s courtroom with an imperial hauteur, in their distinctive robes and “monkey suits” (as lawyers call the waistcoat worn by judges and seniors of the bar). Around each of these seniors orbits a small entourage: not only an assistant (usually carrying phones and bags), but three or four juniors, along with one or more independent advocates—lawyers who have not yet attained seniority, and work with the seniors on a case-by-case basis.

In an era when fortunes can be made and lost on the whims of government policy (or the manipulation thereof), billions of rupees hinge on the decisions of the Supreme Court, which has become the ultimate arbiter in innumerable disputes between corporates and the state. Today, the country’s top lawyers, who charge upwards of Rs 10 lakh (Rs 1 million) for a single court appearance, are some of the capital’s most powerful figures, Delhi’s closest equivalent to the Wall Street investment bankers that Tom Wolfe once dubbed “masters of the universe”.

It is not uncommon for these stars to quietly fade, due to age or exhaustion. But it is a rare sight when one of the masters gets pulled down to earth, even if briefly, by scandal or misfortune—a spectacle that draws rapt attention from the merchants in Delhi’s power mandi.

When the spectacle involves not just any top lawyer, but the master of the masters—the Attorney General for India, the legal custodian of the public interest of 1.2 billion people, who occupies a constitutional position designed to stand above the petty intrigues of politicians and corporates alike—it is a matter of grave concern that stretches far beyond the capital, for what falls is not just the man but the office.

So on 27 February, all eyes were turned toward an otherwise unremarkable courtroom in Delhi’s Patiala House, where Goolamhussein Essaji Vahanvati was appearing before a Central Bureau of Investigation (CBI) special court. Vahanvati, the thirteenth Attorney General for India—the Union Government’s top law officer, with an office on the second floor of the Supreme Court and the right to an audience in any court in the country—was not arguing before the bench. He was standing in the witness box, answering questions about his role in what was, at least for a time, the country’s biggest scandal—the fraudulent allocation of 2G cellular spectrum. It was the first time in India’s history that the country’s attorney general had deposed as a witness in a trial court.

Over the course of two days, Sushil Kumar, the defence lawyer for the prime accused in the 2G scam, former communications minister Andimuthu Raja, peppered Vahanvati with questions. In his cross-examination, Kumar intended to demonstrate that Raja had sought and received the approval of Vahanvati, who was then the solicitor general, while making the decisions that investigators alleged were at the heart of the scam.

The file outlining the revisions to license allocation procedures had been sent to Vahanvati for his signature three days before the contested licenses were issued, and Raja had argued that Vahanvati’s opinion gave legal sanction to his policies, though the law ministry had earlier declined to grant that approval. Furthermore, Kumar argued, Raja had consulted with Vahanvati as he formulated a new process for the awarding of licenses, suggesting that Vahanvati, who was promoted to attorney general in 2009, had been well aware of the decisions that were now being characterised as a scam.

 

 

Claims of this sort—that others in the government knew exactly what he was doing—form the backbone of Raja’s defence, which maintains that he has been unfairly prosecuted for decisions that the cabinet had not seen fit to overrule. But Raja contends that Vahanvati’s role was even more significant: Prime Minister Manmohan Singh and other members of the cabinet had discussed these issues, and even seen files outlining the plans, but it was Vahanvati, Raja says, who gave legal imprimatur to the policy.

While Vahanvati stood uncomfortably in the witness box, parrying Kumar’s questions with careful replies, Raja made a display of his disagreement. At one point, near the end of the first day of questioning, Raja interjected in a voice loud enough to be heard by all of the 60 or so people inside the courtroom, exclaiming, “He is telling all the lies and I am the one going to jail.” Vahanvati, who had thus far avoided looking at Raja, turned toward him with obvious indignation, in disbelief that the tarnished minister would say such a thing in court.

There was more at stake for Vahanvati than mere embarrassment: the judge in the case, OP Saini, had the capacity to add Vahanvati to the list of accused if his testimony suggested a deeper involvement or complicity with Raja’s actions. But even Kumar, Raja’s lawyer, admitted this was not likely, and after two days in the witness box, Vahanvati was excused. He had managed to avoid any obvious missteps, and consistently depicted his role in the scandal as that of a minor bystander, whose legal opinions had been confined to narrowly drawn procedural questions.

Still, his appearance before the CBI special court marked a low point in his tenure as a law officer of the Union government, which has not been without its share of controversy. While much attention has been paid to the 2G scam, and thus to the role Vahanvati played, it is not the only case in which his opinions may have lent legitimacy to questionable decisions. In recent weeks, his name has surfaced in news reports as one of the government officials involved in watering down a CBI status report in the coal allocation scandal; in several other matters, Vahanvati has been accused of tailoring his interpretations of the law for the benefit of influential corporate houses.

Vahanvati is not the first attorney general to find himself mixed up in the messy partisan work of the government he serves; many Supreme Court advocates lamented that the independence of the government’s law officers had been corroded by political pressure over the past three decades. But Vahanvati has been more controversial than his predecessors, and not only because this government has been beset by allegations of spectacular corruption.

Over the past four months, while I was conducting interviews with Vahanvati’s friends and associates, fellow senior advocates, and Delhi’s corps of fixers and lobbyists—who occupy the intersection of government, business, media and law—the attorney general was rarely out of the news, and the news he was in was rarely good. One of his colleagues told me, admiringly, that Vahanvati was a man with “quick solutions to complex problems of law”; this makes him invaluable for a government whose trysts are mostly with crisis. But even feats of legal agility can’t keep an incorrigible client out of trouble forever, and eventually the lawyer is left holding the bill.

In person, Vahanvati is unfailingly polite and courteous, almost to the point of primness. During our only meeting, at his official residence on Delhi’s Motilal Nehru Marg—next to the Taj Mahal Hotel—he spoke so quietly and calmly that I could have heard a caterpillar crawling across his meticulously organised desk.

At one point in our conversation, which lasted about an hour, he produced a small red diary, about six inches by three inches, inside which he had noted, in small and careful handwriting, citations of past decisions, important cases, and legal arguments. It was, he explained, one of the diaries he had carried in his pocket during his early years at the Bombay bar. Back then, he said, junior lawyers spent hours and hours sneezing over dusty volumes of old case law. “One sentence would come out after three to four hours of research,” he said, adding that today’s juniors don’t understand how to properly draft their briefs. “Now,” he sighed, “everything comes readymade. But I always tell my juniors that unless you research yourself, you will never really improve as a lawyer.”

His friends and critics alike concur that he is a relentless worker, obsessively concerned with details and diligent in his preparation. Janak Dwarkadas, a senior advocate at the Bombay High Court and a friend of Vahanvati, said he always had “complete mastery over the facts” of the case at hand. “He has all three qualities needed to be a competent lawyer,” Dwarkadas said. “Excellent memory, excellent command over facts and law, and an excellent ability to put his point across to the court.”

After becoming a senior at the bar in 1990, Dwarkadas told me, Vahanvati was involved “in every single significant case” at the Bombay High Court. “Don’t quote me on this, because it will make me sound foolish,” one of Vahanvati’s close friends, a Supreme Court advocate, told me, “but if there is a genius at the bar today, it is Vahanvati.”

Harish Salve, one of the country’s most prominent lawyers, and a former solicitor general, has known Vahanvati for 30 years. The attorney general has “a very sweet, very understated and gentle style” in the courtroom, Salve said. “He is definitely a fine lawyer.”

“When you are a law officer,” former solicitor general Gopal Subramaniam told me, “you have a relationship with the state, as it is your client, but you are also an officer of the law: you have to promote the law, and the rule of law.” The government’s law officers—the attorney general, solicitor general, and the additional solicitors general—have always been political appointments. But they are expected to give independent legal advice to the government they serve, even while they represent that government before the courts. “If you have a government that believes in you and has faith in you,” Salve said, “you can tell them, ‘Look, if you do this, it won’t look nice.’ And they will say, ‘OK, we won’t do it.’” As the attorney general or the solicitor general, Salve said, “you’re really the conscience-keeper of the government.”

But the government must first decide whether it wants honest advice, or merely legal ingenuity. “Independent advice from a good law officer can mitigate the number of legal cases against the government,” one senior Supreme Court advocate told me. But too often, he said, “their opinions are now used to provide a legal sanction to policies that are in a gray area.”

This, in essence, is the case made by Vahanvati’s detractors: that as the solicitor general, and then the attorney general, he has more often done what the government asks than what the law requires. One former law officer, who worked under both Vahanvati and the previous attorney general, Milon Banerji, told me that while Vahanvati “might have a better knowledge of the law” than his predecessor, “Banerji had greater integrity and dignity.”

Prashant Bhushan, the activist lawyer and Aam Aadmi Party leader, who is involved in several lawsuits related to the 2G scandal, said Vahanvati was “a competent and intelligent lawyer-—smooth in his working style and quite effective in court.” But Bhushan charged that Vahanvati’s opinions in several cases showed he was “willing to give convenient advice, suiting a minister or ministers, who use it as a cover for all their dubious dealings, just as Raja did.”

“A convenient attorney general is very useful to the government,” Bhushan said. “And therefore they go all out to protect him.” One corporate lobbyist who knows Vahanvati suggested a similar, if more dismissive, summary of his role: “He’s the government’s alibi.”

After arriving in Delhi in 2004 as an outsider, Vahanvati rapidly learnt to negotiate the city’s networks of power. Few expected that he would succeed Banerji as attorney general in 2009. The consensus was that the job would go to Gopal Subramaniam, then an additional solicitor general, who was a favourite of both Banerji and the then law minister, HR Bhardwaj, and also close to the Gandhi family. But after Bhardwaj was replaced as law minister, Vahanvati was given the post.

“Within a few years he understood the power structure and made key contacts,” the law officer who worked under Banerji and Vahanvati told me. One of these is Ahmed Patel, the political secretary to Congress president Sonia Gandhi. Patel, whose name is whispered with reverence in off-the-record Delhi, was consistently described by people who know Vahanvati as his most powerful ally in the capital. “Of course he knows how to navigate Delhi now,” Vahanvati’s friend, the advocate, responded when I asked him about the attorney general’s political savvy. “I told you: he’s a genius.”

But before he came close to Patel, Vahanvati already had a powerful friend in Anil Ambani—whose name came up immediately when I mentioned to any senior lawyer that I was reporting a profile of the attorney general. It’s not clear when Vahanvati first met Ambani, but dozens of people testified to their friendship, which dates back to Vahanvati’s time in Mumbai. Another law officer who worked with Vahanvati described him as “very close” to Ambani, while a senior bureaucrat who worked under Finance Minister P Chidambaram told me that Ambani and Vahanvati had often come together to have lunch with Chidambaram.

For all his proximity to power, the soft-spoken Vahanvati keeps a low profile and attracts very little public attention. “He’s the kind of guy you could pass by without noticing,” another lobbyist said. But Vahanvati occupies a critical junction in the capital’s circuits of influence: almost every controversial matter—the policies and decisions that later get challenged in court, disputed by ministries, or probed by the CBI—will likely pass through the attorney general’s office before it’s resolved.

Vahanvati said that his paternal great-grandfather had been a builder of wooden ships—hence the family name: ‘vahan’, in Gujarati, is a ship. “That probably explains why my mind is so wooden,” he quipped. His grandfather had subsequently made a great fortune in the shipping business—in part as an agent for British merchant companies in Mumbai—but “lost all of his money” during the Great Depression.

The senior Vahanvati joined the bar in 1943, six years before Goolam was born. “My father was an extremely honest man,” Vahanvati told me. “No judge ever asked him to justify a statement which he made in court.” Rafique Dada, who served as a junior to Essabhoy in the early 1970s, remembered him as an honest lawyer and a “great raconteur” who was “one of the most loved members of the bar.” After the court had adjourned for the day, Dada said, the lawyers would congregate in the library, where Vahanvati “was so popular that many people gathered only to listen to him.”

In 1975, when Vahanvati was only 26, his father died of an ulcer. “He died very suddenly,” Vahanvati said. “He was very young, and my life changed. I just had to put my head down and work. I worked 18 hours a day.” Dada remembered the young Vahanvati as “carefree, but very sharp”, and “an outstanding lawyer”. Dinyar Madon, who was among Vahanvati’s first juniors in the early 1980s, recalled that he used to get “60 to 70 matters each day”, and worked longer hours than anyone else in the office.

Vahanvati told me that his father’s early death had served as a motivation to succeed. “Can I be honest with you?” he said. “Basically, I felt always that my father didn’t deserve to die so young. There was always a feeling that I have to bring out his name. It’s very difficult for me to describe, but that was my driving force.”

Vahanvati took pains to emphasise that he had little interest in personal enrichment. “I am not a money-minded person,” he told me. “What can you do with money? If money is all you want, then don’t be a law officer.” He recounted a scene from the Supreme Court, where other senior advocates were showing off their pricey watches. “I said, ‘You guys are wearing on your wrists more than what I can earn in a month.’” While the desks of senior advocates are typically littered with Montblancs and other luxury pens, Vahanvati called my attention to the compulsively neat row of perfectly aligned pens and pencils on his table. “Look at my pens,” he said. “All of them are presents, and they are all cheap highlighters and little things that keep me going.” Later I was told by both Vahanvati’s son, Essaji, and one of his good friends, the lawyer Raian Karanjawala, that he had “an impressive collection” of expensive writing instruments, suggesting that he might have slightly exaggerated his indifference to material possessions.

(At the end of our interview in January, I suggested to Vahanvati that we should meet again, and he agreed. But he declined all subsequent requests for an interview, including more than 10 attempts to contact him for comment in the three weeks prior to publication.)

“He doesn’t call himself a Delhi person,” Vahanvati’s son told me. “He comes back to Mumbai during every vacation.” In Mumbai, Vahanvati owns one house, which he has given to his son, and rents three apartments in a building called Joyeden, a block from the Taj Hotel in Colaba. (According to the trust that governs the building, the rent for two of these apartments is only Rs 490 per month, while the third rents for Rs 64.) In the 1990s, before he became advocate general, Vahanvati sold an apartment he owned in Pune, and bought a two-acre plot outside the city; in 2003, he purchased two adjacent acres. Janak Dwarkadas, who worked with Vahanvati on many occasions, lives in a farmhouse next door to Vahanvati’s property. He described it as “like a seven-star resort”, mentioning a stream that runs across the land, two bungalows, Jersey cows, sheep, and plants and trees from around the world. “He’s a collector by nature,” Dwarkadas said, and recalled walking around the property with Vahanvati, who “knew the name and details of every tree.”

One of Vahanvati’s good friends in Delhi told me that Vahanvati had called him shortly after the Maharashtra elections in 1999. Vahanvati said he was being considered for the advocate general’s post and asked his friend, who was close to senior Congress leader Madhavrao Scindia, then the party’s in-charge for Maharashtra, to recommend him. “I was holidaying in Rajasthan, I remember, and he called me and said can you talk to Madhavrao Scindia. I spoke to Scindia and told him that if you’re considering Vahanvati, he will be a good choice.”

Before becoming the state’s advocate general, Vahanvati had already become friendly with Sharad Pawar, whose Nationalist Congress Party was Deshmukh’s coalition partner. In the mid-1990s, Vahanvati told me, Pawar had been fighting a defamation case against a newspaper that alleged he had ties to the Mumbai underworld. Vahanvati had often worked with JN Gagrat, who was Pawar’s lawyer, and when he heard about the case from Gagrat, he volunteered to approach the newspaper himself and settle the controversy. “Without going to the court, I spoke to the newspaper. I said, ‘This is wrong, what you’ve done, there is already an injunction.’ So they apologised. I came to know him briefly then.” As advocate general, Vahanvati represented the Maharashtra State Electricity Board in the state’s long-running tussle with the American energy company Enron, whose involvement in the Dabhol power project was the single largest foreign direct investment in India at the time, and the subject of massive controversy, much of it centred around Pawar. Later on, Vahanvati appeared several times for Pawar in a case against the Board of Cricket Control in India, which Pawar headed from 2005 to 2008.

A solicitor from Mumbai who has known Vahanvati for several decades told me that he once confessed that it had been his dream as a child to be driven around in an official car with a red beacon—a status symbol not accorded to state advocates general. His chance arrived when the UPA government came to power in 2004; at that point Vahanvati had been an advocate general for four years, under Deshmukh and his successor, Sushil Kumar Shinde, who now serves as the Union home minister.

Many senior advocates in Mumbai told me that Vahanvati was a top legal mind, whose skills as a lawyer made him an obvious choice as solicitor general. In Delhi, however, opinions were less kind—or more cynical—and many people told me there had been substantial lobbying behind Vahanvati’s appointment. A person close to Bhardwaj said he was only concerned that Milon Banerji be made the attorney general, and had no opinion about who should be selected as solicitor general. According to this person, “a Mumbai corporate lobby” had pushed to have Vahanvati appointed.

Many people told me that Bhardwaj was not fond of Vahanvati, and had argued against his appointment as attorney general in 2009. “Bhardwaj thought Vahanvati lacked the stature at the bar” that was required of an attorney general, the former law officer who worked under Banerji and Vahanvati told me. A senior Congress member of parliament, who said “Bhardwaj couldn’t stand Vahanvati”, told me that Pawar and Shinde had influenced the decision to promote Vahanvati, which took place only after Bhardwaj was replaced at the law ministry by Veerappa Moily. (Bhardwaj, who is now the governor of Karnataka, did not respond to multiple requests for comment.)

A few days after Vahanvati’s promotion in June 2009, the well-connected journalist Prabhu Chawla, now the editor of the New Indian Express, told the lobbyist Niira Radia that Vahanvati was “an old friend of mine” during a taped phone conversation. “He is very close to Anil Ambani, everyone knows about it,” Chawla continued. “Anil Ambani, Nusli Wadia, and our power minister—kya naam hai?—Shinde, they all went for him for the appointment. Bhardwaj never liked him. Bhardwaj would not have made him the attorney general agar Bhardwaj law minister hotaa (if he was still law minister).” (When contacted for comment, Chawla said Vahanvati was a friend, and declined to be interviewed for this story.)

A close associate of Anil Ambani acknowledged Ambani’s friendship with Vahanvati, but insisted that the two men were not unusually close, and that their acquaintance was of relatively recent vintage—after Vahanvati came to Delhi. Ambani, this person argued, naturally had dealings with many powerful people in government, and had only come to know Vahanvati through Ahmed Patel; Vahanvati, he said, was close with other corporate leaders as well—closer, this person said, than he was to Ambani.

“The writ of this court will run over a territory extending to over 2 million square miles, inhabited by a population of about 330 million,” Setalvad said. “It can truly be said that the jurisdiction and powers of this court, in their nature and extent, are wider than those exercised by the highest court of any county in the Commonwealth or by the Supreme Court of the United States.” His address, which lasted only a few minutes, marked the inauguration of the Supreme Court of India.

Though the attorney general rarely makes headlines, it would be hard to overstate the significance of the position—it is, as Gopal Subramaniam told me, “one of the most important constitutional posts in India.” The Constitution specifically mentions that the president must select for the post a person “qualified to be appointed a Judge of the Supreme Court”. Therefore, Subramaniam said, the attorney general “must be a man of such fearless character, equivalent to that of a judge—with the ability to give fearless advice to government, to the Parliament, to the judiciary.” The same qualities are sought in the solicitor general, he said, “to be equally independent of the executive.”

Neither the attorney general nor the solicitor general have fixed tenures; they serve as long as they have “the pleasure of the President”, which means they can be replaced whenever the government wishes. Salve said that while the law officers are political appointments, that does not mean that they are not expected to “rise above their brief”.

“It is a position of great responsibility,” said PP Rao, a senior Supreme Court advocate. “It requires independence, ability, and integrity.” Rao and Subramaniam both praised the first four men to occupy the office, from Setalvad through SV Gupte, whose tenure ended in 1979. They were, Rao said, “men of absolute independence”, but “thereafter, things have been different.” Since then, Rao said, “political considerations prevailed” within the government, and persons with what Rao called a “servile mindset” had been appointed. “You cannot afford to have a pliable person there,” Rao said, “or the very objective of the office is defeated.”

He recalled that his father had been aware, before the 2004 elections, that if the Congress came into office, he might be appointed the solicitor general. When I asked about his sense of Vahanvati’s friends in politics, Essaji said, “In Delhi he did get to know and work with a lot of people over there. He’s known PC [Chidambaram] for many years, just to give an example … I think he’s close to Ahmed bhai [Patel] also.” After his father had become advocate general, a different sort of visitor started appearing at their house. “There were a lot more government people who had to come,” he said. “And when they come they don’t come in one or twos, they come with their whole band of people.” When Vahanvati was a senior advocate in the Bombay High Court, Essaji said, his friends were more likely drawn from the corporate world, or even Bollywood—“the people he worked for”. I mentioned that a lot of people said Vahanvati had a close relationship with Reliance; did he remember how that came about? “Reliance, yeah,” he said. “I am not so sure about what happened exactly.” But as a state’s advocate general, he continued, “a lot of people tend to end up meeting you.”

When Anil Ambani’s name came up—as it inevitably did—in my conversation with Prashant Bhushan, he argued that Vahanvati should have recused himself from any matters involving Ambani or his companies. “Vahanvati told me himself that he is a close friend of Anil Ambani,” Bhushan said. He pointed out that Vahanvati continued to give opinions, or appear on behalf of the government, in cases where Ambani’s interests were at stake. “That, itself, is a conflict of interest.”

Mohan Parasaran, the current solicitor general, argued that talk of this sort, about corporate interests exerting influence on law officers, had been grossly overstated. To be selected as a law officer, Parasaran pointed out, “you must have had a good private practice as a leading lawyer—these industrialists would have been your clients at some point in time.” Former clients often become friends, he said, and “it is difficult to cut off these relationships: I can’t say, ‘Don’t come and meet me,’ no?” But this did not mean the law officers could not issue objective opinions in cases concerning friends or former clients. “See, these days nobody can avoid controversies,” he said. “If you’re holding a public office, it’s easy for anybody to accuse anybody.” Parasaran made it clear that he felt the allegations against Vahanvati were unfair, and said it was too easy for others to assume that identifying the beneficiaries of a given legal opinion provided evidence of favouritism. “If you go and drink milk under a palm tree,” Parasaran concluded, “people will think you’re drinking arrack.”

Harish Salve, who returned to his lucrative private practice in 2002 after three years as the solicitor general, agreed that it was facile to assume a given opinion had been issued for the benefit of one party. “Why a law officer holds a particular opinion—does he do it to please the government or does he do it because he believes it—these are matters on which you cannot comment unless you have all the details,” Salve said. But he also suggested that he would find it difficult to be objective about matters that concerned his own friends, and mentioned Mukesh Ambani and Jet Airways chief Naresh Goyal. “If you ask me about Reliance, I will tell you, ‘Don’t ask me,’ because my relationship with Mukesh is very deep, so my opinion may not be objective,” he said. “If I became attorney general, and a file came dealing with aviation, I would decline it, because anything I say is going to either hurt or help Naresh. One of the reasons I would never become a law officer now is that Reliance is in almost every business in the world, so if a file came to me which would either benefit or hurt them, I would have to say no.”

By January 2009, one year after the contested 2G licenses had been issued by the Department of Telecommunications (DoT), multiple legal challenges had been mounted against the allocation process. Several of these concerned Swan, which had been awarded licenses for 13 service areas.

According to two complaints filed with the Prime Minister’s Office (PMO), from the Congress Rajya Sabha MP Dharampal Sabharwal, and Janata Party president Subramanian Swamy, as well as a writ petition filed in the Delhi High Court, Swan Telecom had been in violation of the guidelines for issuing mobile licenses. These specified that a company already in possession of spectrum in one circle could not own more than 10 percent of another company applying for additional spectrum in the same circle, as Swan had done. As Swamy wrote in his complaint, “The documents available disclose that on March 2, 2007, when Swan Telecom applied for Unified Access Services Licences, it was owned 100 per cent by Reliance Communications and its associates.”

On 12 January 2009, an internal DoT memo, responding to these complaints, asked whether “Ministry of Corporate Affairs may be requested to examine the matter,” to determine if Swan’s ownership pattern had violated the guidelines. In a subsequent memo, dated 5 February 2009, AK Srivastava, a deputy director general in the DoT, suggested that the opinion of the solicitor general should be sought, because he was representing the government in the High Court. A note on the same page from Siddhartha Behura, the telecommunications secretary, suggested: “Through the Ministry of Law we may refer this matter to SG.” Three days later, a note by Raja suggests the question could go straight to Vahanvati: “May be sent to SG directly since the cases are represented by him before the TDSAT and other judicial forums including HC [High Court] Delhi.”

The file was not sent to the law ministry. Instead, Vahanvati sent an opinion, issued on his own letterhead, on 25 March 2009. It argued that the ownership of Swan at the time of its application—in March 2007—was irrelevant, because Reliance had voluntarily divested its shares in the company in December 2007, nine months after applying, but one month before the licenses were issued. Therefore, Vahanvati concluded, “the file shows that there has been a full consideration of all relevant material and the conclusion that the applicants fulfilled all the necessary conditions cannot really be faulted.”

In an interview with Mint in February 2011, Vahanvati defended his opinion, saying, “All the facts relating to Swan were known. DoT had gone through the shareholding of Swan and given them an okay.” (A subsequent CBI investigation would show that all the facts were not yet known, revealing an intricate web of cross-holdings designed to disguise the full degree of Reliance’s involvement, for which three Reliance executives are now on trial.)

Vahanvati’s opinion, according to later notings in the file, was twice cited to block additional requests that the matter be referred to the corporate affairs ministry for further examination. The Comptroller and Auditor General (CAG) report on the 2G scandal admonished the telecommunications department for consulting Vahanvati rather than the finance or corporate affairs ministry, and characterised the department’s reply—based on Vahanvati’s opinion—as “evasive”.

After the CAG draft report was circulated, an empowered group of ministers headed by Pranab Mukherjee asked Vahanvati for an opinion on whether the Sasan decision had provided an undue concession to Reliance. Officials from the coal and power ministries argued that the decision should be cancelled, but Vahanvati disagreed. In April 2012, the empowered group of ministers cited Vahanvati’s opinion—which the Financial Express called “a big relief to the government”—and opted to allow Reliance to go ahead.

The story is a complicated one, and it reflects badly on nearly everyone involved. It began in 2007, when Reliance Power won a bid to operate a UMPP at Sasan; according to the terms of the contract, three captive coal blocks would be allotted, to be used exclusively for power generation at the Sasan plant. Soon after the contract was signed, according to a senior official in one of the concerned ministries, Reliance Power “started moving in Madhya Pradesh.”

In October 2007, Reliance Power signed a memorandum of understanding with the Madhya Pradesh government to develop another power plant at Chitrangi, which would produce electricity using purchased coal. That same month, Shivraj Singh Chauhan, the chief minister of Madhya Pradesh, wrote to the prime minister requesting that Reliance Power be allowed to divert “excess” coal from the captive mines designated for Sasan to the plant at Chitrangi. This would increase the profit margins on the electricity sold by the Chitrangi plant, since its tariff had been set based on the assumption of higher costs to acquire coal.

An empowered group of ministers headed by then power minister Sushil Kumar Shinde approved Chauhan’s request for Reliance in August 2008. Their decision stipulated that the excess power generated by surplus coal should be sold at rates determined by competitive bidding (which would keep prices low). But as the CAG report notes, the tariff for Chitrangi had already been set, so the savings accrued to Reliance rather than consumers. The group of ministers, the senior bureaucrat told me, had effectively “tweaked the policy to suit Reliance”.

But Tata Power, which had also bid for the Sasan UMPP, filed a petition challenging the decision before the Delhi High Court in January 2009. Tata argued that the government had retrospectively changed the terms of the contract to benefit Reliance, and that it would not have withdrawn its competing bid if the surplus coal provision had been in place. (Vahanvati defended the government before the High Court, which dismissed Tata’s petition; the matter is now pending before the Supreme Court.)

In December 2011, an empowered group of ministers once again considered the Sasan decision. According to the senior official, Shinde had started to have second thoughts: “After the CAG report came out, Shinde got scared,” the official said. “He thought as the power minister that he would be made the scapegoat, and he wanted to withdraw the allotment to Chitrangi. But Pranab bulldozed him.”

The power and coal ministries had been asked to formulate a blanket policy for surplus coal, which could then be applied to any future UMPP projects. Mukherjee, the senior official said, requested that the ministries “keep Sasan in mind”. But in response, they proposed that any surplus coal must be sold to Coal India at cost, citing an existing policy that does not allow private companies to earn profits from mining coal. Noting that the original allotment for Sasan had specified similar conditions, the senior official said, the ministries recommended reversing the original decision granting Reliance permission to divert surplus coal to Chitrangi. “We formulated a policy, but it was withdrawn within three days,” the senior official said. “There was pressure from Pranab to ratify the policy that was used for Sasan, and we were told to consult the attorney general and come back.”

Over the next several months, the senior official said, the policy was discussed between the power, coal and law ministries. In response to their queries, the law ministry and Vahanvati raised additional questions and responded to them; questions whose answers, according to the official, had direct implications for the Sasan affair. “We had asked about four questions,” the official told me, “and he answered about ten.”

The new questions and answers, the official said, were “totally in line with what Reliance had wanted”. Vahanvati “interpreted that the clause was open for the government to decide” whether surplus coal could be diverted. “We said no, the clause did not say that.” Furthermore, the official argued, the documents specified that any excess coal could only be transferred to a subsidiary of Coal India. “He misinterpreted that the excess coal could be given to a subsidiary of Reliance.”

When the empowered group of ministers convened in April 2012 to consider the excess coal policy, the coal and power ministries presented their position “in black and white” alongside Vahanvati’s opinion. “We were overruled,” the official said, “but the CAG report says what we were saying.”

Since then, a senior Supreme Court advocate told me, “Every time Sasan comes up in court, Vahanvati starts sweating when he has to appear.”

The intricate details, involving many subtle alterations to government policies and procedures, recorded in a trail of bureaucratic memos and file notings, are fantastically boring. But the basic outline of the scandal can be summed up by a few key decisions, whose effect was to tilt the playing field in favor of certain companies—including Unitech Wireless, whose proprietors were close to Raja, and Swan Telecom.

After the communications ministry received an unprecedented number of applications for mobile licenses and spectrum in late 2007, Raja altered the rules by which those applications were to be processed. First, he changed the cutoff date to an earlier point, eliminating more than 300 of the 575 applications; second, he shifted the criteria for determining the order in which licenses would be granted. The now-controversial “first-come, first-served” policy was already in place, but Raja altered the definition of “first-come” so that the date applications had originally been filed was no longer relevant. Qualifying companies would be awarded licenses in the order in which they fulfilled the conditions in the letters of intent issued by the ministry; in short, whoever deposited their cheques first would get spectrum first.

Many of the individual steps in the evolution of Raja’s new policies are laid out in a Department of Telecommunications (DoT) file, number 20-100/2007-AS-1/Part C, perhaps the most widely publicised “secret” document of the past decade. It begins with a memo from a director inside DoT, dated 24 October 2007 suggesting that the “Learned Solicitor General” provide his opinion on the proposed methodology to allot licenses and spectrum. After a letter to this effect was sent to the law ministry, the law minister, HR Bhardwaj, responded that given the importance of the case and its complexity, “it is necessary that the whole issue is first reviewed by an empowered group of ministers”, after which the “legal opinion of the AG [Milon Banerji] may be obtained.”

Raja found this disagreeable, and sent a letter to the prime minister protesting that there was no need for an empowered group of ministers to decide the issue, since it did not involve “new major policy decisions” but only procedures for implementing existing policy. Still, in the first week of December 2007, Raja went to meet Pranab Mukherjee, then the foreign minister, who chaired an existing group of ministers on spectrum issues. He was accompanied by Vahanvati, who as solicitor general was defending the DoT in a lawsuit filed by the Cellular Operators Association of India (COAI), a lobby group that represented Airtel and Vodafone, among others, challenging the criteria for awarding additional spectrum.

The meeting was a brief one, and no minutes appear to have been prepared. But Vahanvati presented Mukherjee with a note, detailing the government’s response to the COAI lawsuit, which was later sent by Mukherjee to the prime minister. Under the heading “The issue of new telecom licenses”, Vahanvati described the “first-come, first-served” policy in a way that left room for Raja’s alteration, stating that applicants would be granted their licenses and spectrum once they complied with the letter of intent (LOI) conditions.

A letter sent by Raja to Manmohan Singh on 26 December and copied to Mukherjee informed the prime minister that Raja had “several discussions” with Mukherjee regarding spectrum allocation, and that Vahanvati “was also called for the discussions to explain the legal position.” A memo from Raja, attached to the letter to the prime minister, provides an account of the revised procedures—including, critically, the new criteria for awarding licenses according  to the order in which applicants meet the required conditions: “An applicant who fulfils the conditions of LOI first will be granted license first, although several applicants will be issued LOI simultaneously. The same has been concurred by the Solicitor General of India during the discussions.”

Thus far, Raja’s revisions to the allocation procedures had not yet been announced. In early January 2008, the DoT prepared a press release that described the new policy for determining the order in which licenses would be granted; the same release revealed for the first time that the cut-off date for eligible applications had been retrospectively moved forward, disqualifying all those who applied between 25 September and 1 October 2007. Rather than submitting the release to the law ministry—which had earlier demanded the issue be referred to an empowered group of ministers—Raja made a note on the file, instructing the telecom secretary to “please obtain Solicitor General’s opinion since he is appearing before the TDSAT and High Court Delhi”, a reference to the COAI lawsuit.

On 7 January 2008, the telecom secretary, Siddhartha Behura, went to Vahanvati’s official residence with the file, including notings and annexures, and a draft of the press release. On the page of the file following Raja’s note, under a handwritten “S.G”, Vahanvati wrote: “I have seen the notes. The issue regarding new LOIs [i.e. the allocation of new licenses] are not before any court. What is proposed is fair and reasonable. The press release makes for transparency. This seems to be in order.”

Behura returned with Vahanvati’s signature on the file, which Raja interpreted as granting legitimacy to his modifications in the license allocation procedure, as described in the press release—whose publication, three days later, set the scam in motion.

Kumar’s questions about Vahanvati’s signature on the file lasted several hours. Vahanvati repeatedly insisted that his note on the file only approved the release, not the policies it described. Behura had called him, Vahanvati said, only to ask whether any developments in the COAI lawsuit might obstruct the release of the press note and the issuing of new licenses, after which Behura asked that Vahanvati record his opinion in writing.

Vahanvati said his note and signature did not convey his approval of any policies, which, he said, he was anyway unaware of. His replies to Kumar were a mix of exasperation and lawyerly precision, and featured many variations on a single phrase: “It is wrong to suggest that the Minister did not ask my opinion on the press release … It is wrong to suggest that my opinion was sought through this file on the proposed course of action to be taken by the DoT … It is wrong to suggest that I am wrong on this point.”

Though Vahanvati’s written reply begins with the phrase “I have seen the notes”, he contended that this statement did not in fact refer to the file in its entirety, but only to the notes on the page preceding his signature, instructing the telecom secretary to obtain his approval on the press release. Two pages earlier, the file contains a memo from Raja to the prime minister, which states in bold text that Vahanvati had concurred with his redefinition of the criteria to determine “first-come, first-served”. But in response to a question from Kumar, Vahanvati stated that he had not concurred, and that he was not aware Raja had claimed as much, because he did not refer to any earlier pages in the file before giving his approval to the press release.

Neither Kumar nor the lawyers for the other accused asked Vahanvati why he had given his approval to a file that had not been routed through the law ministry, a possible violation of the government’s rules of service for law officers. (Raja and Vahanvati both believe, albeit for slightly different reasons, that this was legitimate.)

A few weeks before Vahanvati’s testimony, I had asked one of his colleagues whether it was unorthodox for the solicitor general to offer his opinion on a file sent to him directly. The colleague defended Vahanvati, but also said, “The thing is, it was not as though this was the first time the file had been sent to him. He was being consulted on a regular basis.” This would suggest that Vahanvati had been given many opportunities to acquaint himself with the file. In his testimony before the 2G court, however, Vahanvati stated, “I had not seen the other pages of the file.”

With regard to the policies described in the press release, Vahanvati argued that he was not aware that the cut-off date had been changed from 1 October 2007 to 25 September 2007, as the release mentioned only the latter date. His statement that “what is proposed is fair and reasonable” and that “the press release makes for transparency” was not, he maintained, an acknowledgement of the revised procedure for implementing “first-come, first-served”, even though the release states that “who so ever complies with the conditions of LOI first” will be granted a license.

The senior Congress MP told me that within the government, “it was commonly admitted that Vahanvati vetted the press release.” In its chargesheet, the CBI accused Raja of having “fraudulently” altered the press release after obtaining Vahanvati’s approval, by removing the final paragraph before it was published. The Congress MP, however, pointed out that this was irrelevant. “Raja has been hit even for the first paragraph.”

The CBI had also accused Raja of fabricating the meeting with Vahanvati and Mukherjee that he described in his letter to Manmohan Singh, stating that “the investigation has not revealed any discussions with the SG”. In 2011, however, Vahanvati’s office revealed in response to a Right to Information query that the meeting had indeed taken place, raising the question of whether Vahanvati failed to mention it when questioned by CBI investigators.

For Raja’s defence, the meeting took on particular significance; Kumar proposed to Vahanvati that the meeting proved “policy and procedures were formulated by the DoT, after discussion with you and the then Minister for External Affairs.” Vahanvati denied this was the case, and insisted there had been no such discussion; he merely presented his note to Mukherjee, who went through it “very carefully and asked me some questions”. Kumar, in a dramatic flourish, suggested that the details of this meeting would show that Raja had not acted alone, but that the truth would never come out because only three people were privy to the details. “One is him,” Kumar said, and pointed to Vahanvati. “One is him,” pointing to Raja. “And the third is at a position where we cannot reach”—in Rashtrapati Bhavan.

A CBI investigator involved in the case told me that “based on the facts that emerged from the investigation, there was no criminal evidence against Vahanvati,” though many had speculated that he might be named an accused. But, the investigator added, “It could be speculated that there was passive complicity with Raja.” Vahanvati, the investigator said, was close to Anil Ambani, and “it seemed this was all done to help Swan.”

According to the investigator, the then CBI director, AP Singh, could frequently be heard complaining aloud that the agency had come under intense pressure from the Prime Minister’s Office to limit the boundaries of the investigation. Two other people involved in the case—another member of the investigating team and an advocate representing the government—told me separately that the PMO had also worked to ensure Vahanvati would not be among the accused, an allegation repeated by the senior Congress MP. (AP Singh refused multiple requests to be interviewed for this story.)

One person who seemed confident Vahanvati had failed to maintain his distance from Raja was the lobbyist Niira Radia, whose taped conversations, leaked to the media in 2010, contain several disparaging references to the attorney general. On 11 June 2009, in a call with her client Ratan Tata about her attempts to secure dual-technology spectrum in Delhi for Tata, she explained that she had met Raja along with Anil Sardana, then the managing director of Tata Teleservices. Raja wanted to grant the available Delhi spectrum to Anil Ambani’s Reliance Communications before any other player came into the fray, Radia said, and she told Tata that Raja would obtain legal assistance from Vahanvati, who was then defending the license allotments before the telecom disputes tribunal. “I think Raja will be trying to get in the attorney general,” Radia said.

In another conversation, five days later, Radia told K Venugopal, an editor with The Hindu Business Line, that Vahanvati had advised Tata not to fight Raja’s decision. “I know how Vahanvati has called Anil Sardana, and all of us, and said you know, don’t oppose minister, don’t oppose this, we’ll ensure you get your spectrum,” Radia said.

Later in that same conversation, Radia adds, “I’ve been party to a meeting, I mean, where Vahanvati has told Anil Sardana, ‘Do not oppose Mr Raja … We will make sure you get your spectrum, I’m giving you my word, isn’t my word good enough?’… I walked out of that meeting with Anil Sardana, I said Anil do not allow this.”

When I contacted Sardana, he insisted the meeting Radia described had never taken place, and he “had no familiarity with the person mentioned”. But a person close to Sardana confirmed to me, in two separate conversations, that Sardana said Vahanvati warned him that if Tata tried to block Raja’s decision, they would never get spectrum in Delhi. To date, they have not.

The question of how far you can bend before your integrity has been compromised is a subjective one; given the realities of Indian politics, each law officer surely has their own sense of what constitutes an acceptable balance between political expediency and constitutional morality.

Still, it would be hard to deny that in recent years, that balance has shifted in the wrong direction: if the government does not respect the independence of the law officers, then the law officers it gets will not be independent. The more that political pressure is successfully brought to bear on important decisions, the more it will be seen as acceptable, and the more it will continue to succeed.

But as Harish Salve told me, it is almost impossible to definitively prove that a specific legal opinion reflects the influence of outside pressure rather than inner conscience; even if there were evidence that pressure had been applied, a lawyer could plausibly argue that he had reached the desired conclusion independently. Nor, for that matter, can an opinion be shown to be “wrong”, except insofar as it misrepresents the facts or the law; the question of which facts and laws are relevant to a given case is invariably open to interpretation.

While it may be improper to draw such conclusions from a single opinion, it can still be the case that examining a body of opinions and their circumstances, over time, can reveal patterns that either confirm a lawyer’s integrity or raise doubts about their independence. One opinion that looks convenient may not really be so, but when many look convenient, there may be reason to believe they are.

In this regard, there may be no opinion more embarrassing for Vahanvati than the one he produced in November 2008, recommending that a disproportionate assets case not be registered against the Samajwadi Party (SP) president Mulayam Singh Yadav, a little more than three months after Yadav’s support saved the UPA in a crucial trust vote in Parliament. The opinion attracted criticism at the time, but it marked the beginning of a legendarily ridiculous chain of reversals and re-reversals in the case, which have, in hindsight, made the opinion look even worse.

The CBI had conducted a preliminary enquiry into the assets owned by Yadav, his two sons, and his daughter-in-law in response to a directive from the Supreme Court in March 2007. Seven months later, after finding prima facie evidence that Yadav and his family had assets disproportionate to their income—even before assessing the full value of real estate in their names—the CBI concluded that a case should be registered. For an unknown reason, the Court had directed the CBI to submit the results of its preliminary enquiry to the government. Anticipating that it would not act, the CBI filed an application with the Supreme Court in October 2007, requesting the Court to order the case be registered without further reference to the government.

After the Court failed to respond, the CBI filed another application to the same effect in March 2008, to which the Court again did not respond. In the months that followed, the SP stepped in to support the UPA in July 2008, and Yadav’s daughter-in-law Dimple sent three letters to the government, accompanied by tax returns, declaring her innocence.

Prompted by Dimple Yadav’s complaint, the then law minister, HR Bhardwaj, asked Vahanvati for an opinion as to whether the CBI should proceed with the case. Vahanvati’s opinion, delivered in November 2008, challenged the premise of the CBI’s preliminary enquiry and recommended that the CBI withdraw its application to proceed with an investigation. The central argument of Vahanvati’s opinion—which has been called “absurd” and “scandalous” by the press—was that it was improper for the CBI to include the assets of Yadav’s sons and daughter-in-law in its enquiry unless it could prove that they were being held for him to avoid detection. In other words, the investigation could not proceed unless the investigators could show beyond doubt that the assets were deliberately concealed, a burden of proof that could only be met through further investigation.

But Bhardwaj quickly concurred with Vahanvati’s opinion, and recommended the CBI withdraw its application to open a full investigation. The agency complied and requested the application be withdrawn. The Court, however, refused to honour the CBI’s request—which was based on Vahanvati’s opinion—and demanded that the agency first explain why it wished to withdraw the case.

At the next hearing, in late January 2009, Vahanvati appeared before the Supreme Court, representing the government, and dismissed his own opinion recommending withdrawal. “I had given an opinion in this case in November last,” he said, “and it is no longer relevant.” Now the government argued that it wished for the CBI to consider the merits of the case on its own before coming to a decision on whether to proceed. Two weeks later, Mohan Parasaran, representing the CBI, conceded that the agency had acted on the instruction of the law ministry—again, based on Vahanvati’s opinion—in seeking to withdraw its application, an admission that was excoriated by the justices. Vahanvati, again representing the government, now told the Court, “We don’t want to take any decision in this matter. Let the CBI consider the representation and submit report to the court.”

The twists and turns continued: in March 2009, the CBI completed its reversal, asking the court to ignore Vahanvati’s opinion and proceed with the case. But in February 2011, Vahanvati was back in court once again, now arguing that the case should again be withdrawn, on the basis that the Court was not allowed to order a CBI probe unless “fundamental rights” had been violated. A bemused bench told Mulayam’s lawyers, “He is supporting you. In fact, he has argued for you.”

The matter is still not resolved. In November 2012, the petitioner who originally brought the case against Yadav in 2005, Vishwanath Chaturvedi, filed a complaint in a Delhi court charging Vahanvati—along with Bhardwaj and four others—with “criminal conspiracy” to shield Yadav from prosecution. Meanwhile, the case against Yadav remains in limbo: the Court ordered the CBI on 13 December 2012 to continue its probe, this time without “obligation to file the status report before the government”.

Several of these media reports have placed Vahanvati at a meeting, held in the law ministry on 5 March, where the report was amended; others have not mentioned his name.

But four sources, including a lawyer who represents the CBI, confirmed that Vahanvati was present at the meeting called by law minister Ashwani Kumar, along with additional solicitor general Harin Raval, CBI Director Ranjit Sinha, and OP Galhotra, a CBI officer. Raval and Vahanvati, I was told, were already present when Sinha and Galhotra arrived. The men reviewed the report together and changes were suggested; a new report was printed within the law ministry, and submitted to the Supreme Court.

The question of Vahanvati’s participation is particularly serious: in the Supreme Court hearing on 12 March, Harin Raval, representing the CBI, was asked if the report had been shared with the executive, which he denied. The bench then asked Vahanvati, representing the government, if he had seen the report. He replied that he had not.

When the first news reports describing the law ministry meeting began to emerge earlier this month, I thought back to something Vahanvati had told me when we met in January, about his admiration for his father. “My father was a great influence on me,” he said. “I learned a lot from him. He never misled a judge, and that’s why his credibility was so high.”

 Correction: In an earlier version of this article, the office of additional solicitor general was incorrectly referred to as assistant solicitor general. The error has been corrected online.

source: http://www.caravanmagazine.in  / The Caravan / Home> Reporting & Essays> Reportage / by Krishnan Kaushik / May 01st, 2014

Krishn Kaushik is a Staff Writer at The Caravan.