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Inconvenient truths, misleading actions

The theory of a law officer being pressured by a Cabinet minister does not hold; he can be as independent as he chooses to be

Bishwajit Bhattacharyya 

Bishwajit Bhattacharyya

Mercifully, things can't get any worse. Whether or not two law officers committed perjury before the highest court can be the subject of an interesting debate. What is beyond debate, however, is that the duo has, jointly and severally, discredited the institution of of the Government of India. What compounds the deception before the Court is that only the making a public allegation against the other has been eased out.

This is the crux of the latest Obviously, none will ever admit that instructions, if at all, had been issued to mislead the court. That would expand the scope of those in the dock from "joint and several" to "many and multiple". In which case, the would be constrained to hand over investigation to a new agency that the Central Bureau of Investigation (CBI) cannot influence. This may well happen anyway, particularly if it is found that the fails to bring out the total truth (not half-truth), impartially and fairly. Let us see how the situation unfolds. The needs to clean up its perceived image from "compromised bureau of investigation" to "clean bureau of investigation". Will it be able to do so?

The triggering point of the current imbroglio, therefore, is the issue of misleading the apex court loudly and/or silently. The sound of silence can be a deadly weapon in these circumstances. Power, it is said, is not only the ability to do things, but also the ability to refrain from doing something. Power can be that highest inaction that transcends all other actions. A masterly silence can demolish or support many loud arguments. Both the government and the would have been within the zone of safety had the truth been told loudly before the apex court. My experience as a suggests that the always appreciates assistance to the bench on the touchstone of truth, ethics and integrity, however inconvenient the truth may be to the government. As a law officer, I have time and again extricated my client, the Government of India, from critical and difficult situations by telling only the truth. This happened day in and day out.

In any case, this theory of a law officer being pressured by a Cabinet minister does not hold. Even though I held a sensitive independent portfolio of Additional Solicitor General of India, in-charge of indirect taxes, no Cabinet minister interfered with my functioning in the So, I don't buy the argument that Cabinet ministers interfere with the functioning of law officers. A law officer can be as independent as he chooses to be and I don't think the political masters would have the courage to meddle around if he were.

ATTORNEY GENERAL OF INDIA
WHAT THE CONSTITUTIONAL PROVISIONS SAY
  • The Attorney General is the first law officer of India, and is the chief legal advisor to the central government and acts as a lawyer in the Supreme Court on behalf of it
  • The President appoints a person who is qualified to be appointed a judge of the Supreme Court to be Attorney General for India
  • It is the duty of the Attorney General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President. All references are made to the Attorney General by the Union Ministry of Law and Justice
  • In the performance of his duties, the Attorney General has right of audience in all courts in the territory of India

Source: lawyersupdate.co.in


Much has been reported about meeting of the law minister, law officers, the CBI and officials of the Prime Minister's Office and the It is not unnatural for every Cabinet minister to protect his leader, that is, the prime minister. It is in this context that various meetings ought to be viewed. The idea is obviously to protect the prime minister, particularly against the backdrop of our fiercely independent and impartial apex court. But whose job is it to advise the government appropriately in such pending sensitive legal matters with far-reaching consequences that may result even in the fall of the government? It is the law officers handling the matter and nobody else. Improper conduct on the part of law officers in such circumstances or inappropriate advice given by them can be equally disastrous for the government. That is precisely what seems to be happening.

A law officer must not try to be popular with his client at the cost of professionalism. He should uphold the interest of his client by all fair and honourable means. He should also administer the bitter pill if only to safeguard the government's interest. His first duty, however, is to the court. Everything else is secondary. As I learnt from my experience between 2009 and 2012, nobody can touch a law officer if these basic parameters are followed. Politicians may not like you, but they dare not touch you during your tenure if you are doing your job independently, fairly and ethically. An outstanding law officer can make a difference to the quality of governance as we all have seen in the past. From the highest standards of ethics set by highest law officers such as M C Setalvad, C K Daphtary, S V Gupte, Lal Narayan Sinha, K Parasaran, Soli Sorabjee and Ashok Desai, where have we sunk today? From advocacy to servility?


The writer is Senior Advocate, Supreme Court and former Additional Solicitor General of India

First Published: Wed, May 08 2013. 21:44 IST
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