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Adventures of Attorney General

S. Sanal Kumar
14 July 2015 8:45 AM GMT
Adventures of Attorney General

It seems that the degeneration of constitutional functionaries goes unabated.  The incident of a retired Chief Justice of India courting for a sinecure post of Governor and the recent episode of Attorney General of India accepting brief against State Government are symptomatic of the malaise afflicting the system.  The run with rapacity, of persons adorning high constitutional posts...

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It seems that the degeneration of constitutional functionaries goes unabated.  The incident of a retired Chief Justice of India courting for a sinecure post of Governor and the recent episode of Attorney General of India accepting brief against State Government are symptomatic of the malaise afflicting the system.  The run with rapacity, of persons adorning high constitutional posts for political and monetary ascendency, does not augur well for the system.  The avarice for power and money by constitutional functionaries, unmindful of the inbuilt demeaning process of themselves, pounds heavily on the Constitution resulting in its sacrilege.  The uproar created over the Attorney General’s appearance for the Bar owners against the State of Kerala raises legal, ethical and constitutional conundrums for deliberation.

Plainly on the touchstone of the Statutory Rules governing the conditions of service of Attorney General and other Law Officers of the Government of India, the A.G’s appearance for bar owners finds no justification.  Sourcing power from Articles 76 and 309 of the Constitution of India, the Government of India promulgated Law Officers (Conditions of Service) Rules, 1972.  Rule 8(1) holds leash on the professional freedom of the Attorney General to accept brief of all persons and institutions of his choice.  Rule 8(1)(a) makes it clear that the Law Officer shall not hold briefs in any Court for any party except the Government of India or the Government of a State or any University, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) any Corporation owned or controlled by the State, any body or institution in which the Government has a preponderating interest.  The term Law Officer, under Rule 2(d) of the Rules, takes within its fold Attorney General for India, Solicitor General for India, Additional Solicitor General for India.  Once an Advocate accepts appointment as Attorney General, he subscribes to the conditions of service also.  Advocate’s freedom to practice is tethered with his appointment as Attorney General with an enlistment of named entities for which alone he can appear.  Rule 8 expressly encompasses Government of a State, for which he may be required to appear, if so requested by the Government of that State.  Acceptance of brief of Bar Owners who are pitted against the State of Kerala ipso facto makes the action of the Attorney General illegal in as much as he chose to accept brief from persons who are not coming under the penumbra of entities mentioned in Rule 8(1)(a).  Rule 10, though empowers the Central Government to relax the rigor of Rules, it cannot be construed as a power to grant permission in a specific case, but as a power to exempt the application of Rules in certain general cases.  The grant of permission in specific cases is explicitly contained in Rule 8 itself.   Second facet of the illegality stems from the factum of accepting a brief against a State Government wherein he was likely to be engaged by the Government of the State for defending its cause.  Assume the ironical eventuality of the State of Kerala making a request to the Attorney General of India for defending its case before the Supreme Court.  No doubt he was statutorily bound to accept the said request.  So, the acceptance of brief of the Bar Owners, in wanton disregard of the statutorily imposed restrictions, casts stigma on the professional probity and rectitude which office of the Attorney General demands.

One would also find it a laborious task to justify the Attorney General’s actions from Constitutional vistas also.   Article 76 of the Constitution, while creating the office of the Attorney General, makes it its constitutional obligation to discharge the functions conferred on him by or under the Constitution or any other law for the time being in force.  Though the appointment of Attorney General is by the Government of India, he is appointed for the Union of India. Article 1 of the Constitution of India unequivocally declares that India, that is Bharath, shall be a Union of States.   The commonality of various States, the community of interests and comity of existence of States are really the making factors of ‘the Union of India’.   Attorney General of India appointed by the Union of India, turning against its anatomical constituents like States, is not definitely the constitutional scheme envisaged by the framers of Constitution.  The framers of the Constitution, though often hailed for their unparalleled legal clairvoyance, could not foresee of a Mukul Rohatgi in the run for the coveted post.  To say the least, the appearance of Rohatgi for Bar Owners is tantamounting to trampling upon the federal structure of the Union of India.

Even a look at from a pure professional ethics, the Attorney General’s action cannot be supported.  The Constitutional post of Attorney General makes him the ‘conscience keeper’ of the Constitution.  The noble ideals and the cherished values, which the State was ordained to endeavour for, are encapsulated in Directive Principles of State Policy.  No doubt, to bring in Prohibition is one of the avowed objects of the State and that of our Father of Nation.  Any policy or legislation, purportedly made to bring in Prohibition, undoubtedly be dubbed as an endeavour of the State in discharge of its obligation under Article 47 of the Constitution of India.   It is known to all that the State of Kerala has been defending its Liquor Policy on the polemic of prohibition.  Imagine the scenario where the conscience keeper of the Constitution is engaged in a hectoring argument with the Bench to set at naught a Liquor Policy of Government of Kerala, when the Government of Kerala are fighting hard to support the same as Directive Principles of State Policy!  All of us know that in a private realm of litigation, the relationship between a lawyer and his client is fiduciary one.  Trust is the foundation of it.  When endeavouring to bring in Prohibition is the ordained Constitutional obligation of both Union Government and all State Governments, the appearance of Attorney General for Bar Owners appears to be an anathema to the constitutional diktats.   The Constitution of India, the Document of Governance, frowns upon the act of Attorney General with ‘trust deficit’.  The Constitution of India, of whose caretaker and lawyer the Attorney General is, declares no confidence in its Attorney General as he acted against its basic tenets and interests.  The trust of the Constitution on the Attorney General has eroded.  Propriety demands the demitting of office by the Attorney General for ‘trust deficit’.

Image from here.

Sanal Kumar S

Adv. S.Sanal Kumar is a Lawyer practising at High Court of Kerala.

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