Appearance in Bar Case: Why Attorney General's action is deplorable?

The Attorney General’s appearance for a private bar owner in a challenge against the Kerala Government’s liquor policy is per se unconstitutional and therefore illegal. The gravity of illegality and impropriety is only aggravated by his action of seeking indulgence of the Centre in that regard. The further fact that the Centre readily granted the permission is again shocking. The subsequent justification of the act by the Attorney General and the Minister is highly unethical. In a Constitution with a socialist preamble and federal philosophy, morality is part of legality and the line of separation is often blurred.

There is a clear misreading of Rules 8 and 10 of the Law Officer (Conditions of Service) Rules, 1987, in the matter. Rule 8(a) clearly implies that there is general obligation on the Attorney General to hold brief of the Government of India or the state governments, or any university, government school or college, local authority, Public Service Commission, government aided/managed hospitals, government companies etc. It is therefore apparent that the rules visualise the Attorney General not as the counsel for the Centre government alone. He has to represent the ‘State’ which includes the categories indicated above, which are all institutions that would fall within the ambit of Article 12. Power of relaxation under Rule 10 cannot take away the spirit of the main rule namely, Rule 8. Rule 8 has a constitutional foundation in Article 12 read with Articles 76 and 309.

Like secularism, federalism is a basic feature of the Constitution as explained in S R Bommai (AIR 1994 SC 1918). Thus the Attorney General is accountable to the people of Kerala under the elected government of Kerala which is part of the Indian state in the federal sense. This is the reason why in Rule 8, no distinction has been drawn between the government of India and state governments or even any authority with the characteristics of state, for that matter.

The Supreme Court in B. P Singhal ,(2010) 6 SCC 331 even while saying that there is “an element of lawyer-client relationship between the Union government and Attorney General”, held that the Attorney General holds a public office. In P.N Duda v. V. P Shiv Shankar, (1988) 3 SCC 167, the Supreme Court noted that unlike England, though the Attorney General is not a cabinet member, he is a friend, philosopher and guide to the Court. Viewed so, appearing for a private party in a lis against a state government’s policy, which is translated to amendment of the rules by the ‘state’ clearly negates the constitutional ethos. Kerala’s Foreign Liquor Rules framed by the state is one permitted by the Centre and the Constitution.

Therefore, the argument that the Centre government and State governments are two unconnected entities so as to justify the Attorney General’s stand is clearly untenable. The continuous reminders about Rule 8 from the Law ministry to the law officers and the Ministry’s annoyance on some of the Law officers’ affinity for private appearance are on record (Gaurav Pathak, LiveLaw, November 15, 2014). The top law officer’s action and subsequent assertions are therefore all the more deplorable.

Kaleeswaram Raj is a lawyer practicing at the Supreme Court and Kerala High Court. He is the author of The Spirit of Law (2012). Email: kaleeswaramraj@gmail.com.