Standing Counsels: Clout and Lineage

நீதித்துறை சீசரின் மனைவியை போல எந்த சந்தேகங்களுக்கும் தவறுகளுக்கும் இடம் கொடுக்காமல் இயங்குவது தான் ஜனநாயகக் கோட்பாடு. நீதிபதிகளும் தகுதியில்லாதவர்கள் எல்லாம் பொறுப்பிற்கு வந்துவிடுகின்றனர். சட்டங்களையே புரிந்து கொள்ள முடியாத நபர்களெல்லாம் நீதிபதிகள். சட்டம் தெரியாதவர்களெல்லாம் நீதிபதிகளின் உறவினர்கள் அரசியல் செல்வாக்கினால் அரசு வழக்கறிஞர்களாக உச்ச நீதிமன்றத்திலும், உயர் நீதிமன்றங்களிலும் பொறுப்புகளுக்கு வந்துவிடுகின்றனர். 1960, 70களில் கண்ணியமான நீதித்துறை என்ற பெயர் பெற்ற நீதிமன்றங்கள் இன்றைக்கு குற்றச்சாட்டுகளும் கறைகள் படிந்த இடமாக உள்ளது என தினமும் செய்திகள் வந்த வண்ணம் உள்ளன. அதை குறித்து ‘இந்தியா லீகல்’ (India Legal) என்ற பத்திரிக்கையின் இந்த வார கட்டுரை வருமாறு.

Standing Counsels: Clout and Lineage

 The appointment of government lawyers and advocate generals has often been questioned because they are mostly connected to ministers and judges. This leaves ethical lawyers feeling short changed

~By Usha Rani Das

If you are a VIP’s son or daughter, chances are that largesse will be showered on you by the state even without you seeking it. Ask Raktim Gogoi, Supreme Court judge Ranjan Gogoi’s son, who was chosen as one of the lawyers to represent the Punjab government in the apex court and other courts outside Chandigarh. The selection came as surprise for him. However, after the lawyers list was released in March 2017, he wrote to the Punjab government to withdraw his name as it was included without his consent.

Similar was the experience of Saket Sikri, son of Justice AK Sikri of the Supreme Court. He wrote a letter to the Punjab government requesting that his name be removed from the list. Sikri told India Legal: “I wrote to have my name withdrawn as my consent was not taken. I did not even apply for the post.” But he refused to comment on why his name was included in the list in the first place.

Were these cases of misdirected favouritism? There is no way of conclusively determining that. But one can say that some lawyers are favoured over others and the reason may not always be professional competence.

Remember, there was a controversy over an appointment in Madhya Pradesh in November 2014 when Aditya Shankar, son of Union Minister of Law and Justice and Information Technology Ravi Shankar Prasad, was appointed as the standing counsel of the state government in the apex court. Immediately after the appointment, BS Banthia, who was the standing counsel of Madhya Pradesh for 12 years, raised objections, alleging it to be a case of “favouritism”. He said that Shankar was appointed to represent the state in the apex court though he had not passed the mandatory Advocate-On-Record (AOR) examination.

Banthia was quoted by a newspaper as saying that “his only qualification is that he is Ravi Shankar Prasad’s son”. The Congress party had also raised objections, with its then leader of the Opposition in the Madhya Pradesh assembly, the late Satyadev Katare, pointing out that the post should have gone to someone from the state, and not an outsider like Shankar.

The Supreme Court has on numerous instances emphasised probity in legal posts. Photo: Anil Shakya

When Aditya Shankar was contacted, he told India Legal he had suspected he was being favoured and had hence rejected the MP government’s offer twice. He said: “I knew I was being appointed because I was Ravi Shankar Prasad’s son. It had nothing to do with my credentials…. But when they offered me the position a third time, I took it as a challenge and accepted it. As soon as the allegations came in February 2015, I quit the office the following month and joined Kaden Boriss (a law firm). It is also true that I did not pass the examination but we all know that the Advocate-On-Record examination is just a formality.”

LINEAGE COUNTS

Instances of such appointments are aplenty in the Supreme Court and High Courts of different states. While Aditya Shankar resigned and Gogoi and Sikri refused the offer, there are many government lawyers who, though they were appointed thanks to their political affiliations, enjoy the benefits with impunity. Legal experts note that over the years, the post of state counsels and advocate generals have become political appointments.

The list of advocate generals selected by the Madhya Pradesh government over the years is telling. Pushpendra Kaurav, who became the additional advocate general for Madhya Pradesh government on June 6, 2017, is alleged to have got the post thanks to his affiliations with the RSS. He was earlier associated with the ABVP, the student wing of the RSS, during his student years. He started his career as a lawyer in 2001 under the tutelage of his maternal uncle and BJP leader Virendra Singh Choudhary. Kaurav had barely completed seven years as a lawyer when the Shivraj Singh Chouhan government appointed him deputy advocate general. He was later promoted as additional advocate general.

Kaurav succeeded Ravish Chandra Agrawal, who landed the post allegedly on the recommendation of former advocate general and senior BJP leader, Ravi Nandan Singh. Before Agrawal, senior lawyer from Gwalior and BJP leader RD Jain was the Madhya Pradesh advocate general. He had succeeded another BJP leader Ravi Nandan Singh, the first advocate general, after the BJP came to power in the state in 2003.

A 2012 CAG report for Haryana found that the system of appointment of law officers followed in the state does not even assess the manpower requirement.

In the Congress government prior to that, then chief minister Digvijaya Singh had appointed Vivek Tankha as advocate general. Tankha, who is now a Congress Rajya Sabha MP and senior Supreme Court lawyer, was just 43 then. His father-in-law late Colonel Jay Narayan Mushran was the finance minister in the Digvijaya Singh cabinet.

Political appointments of law officers are rampant in Haryana and Punjab too. An RTI query by advocate Pradeep Kumar Raparia reveals that none of the applications received for the post of advocate general of the Punjab and Haryana government were invited or received from those appointed. His RTI even found that resumes of the applicants were asked after they were appointed by the state government. He alleges that a majority of those appointed as standing counsels and advocate generals were kith and kin of ministers, political leaders, senior bureaucrats, high court judges, police officers and MLAs of the ruling parties in the two states.

COURT OBSERVATIONS

Such appointments take place despite the 2016 Supreme Court ruling in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr. The apex court had ruled then that “appointment of Government Counsel must, like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations. The government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts”.

The bench headed by then CJI, TS Thakur, had regretted that “the states continue to harp on the theory that in the matter of engagement of state counsels, they are not accountable and that engagement is only professional and/or contractual, hence, unquestionable. It is too late in the day for any public functionary or the government to advance such a contention, leave alone expect this court to accept the same”.

The states claim that they are under no obligation to follow any definite method while appointing law officers as it’s a professional engagement.

Punjab, Haryana and Madhya Pradesh are not the only states that are exploiting the system. Tamil Nadu too is filling the post of standing counsels in the High Court with lawyers who enjoy a cordial relationship with the party in power. The minute there is a change of government, the standing counsels will either be immediately replaced or will themselves relinquish their posts. This is an age-old practice prevailing in the state for the past 50 years.

The appointment of kith and kin that have attracted notice could well be just the tip of the iceberg. India Legal found in its investigation that since the AOR exam is not mandatory to be appointed as a standing counsel, this is being widely exploited. According to a former standing counsel, the irony is that those who have not passed the exam have to hire an AOR lawyer to file a case in Supreme Court, which in turn increases the expenses the state has to bear—which is an unfair practice since it comes from the public exchequer. “For a standing counsel to be an AOR lawyer is in public interest,” he says.

According to a source, there are even instances where an individual is the standing counsel of three states. For example, advocate CD Singh is the standing counsel of Madhya Pradesh, Uttar Pradesh and Chhattisgarh. Though there is no rule that prohibits this, it is quite impossible for an individual to handle the responsibilities of three states, said the source. If we look at the history of standing counsels, he added, it is ripe with examples of relatives of VIPs getting the post though they may be “unfit” for the job.

ARBITRARY APPOINTMENTS

A 2012 Comptroller and Auditor General (CAG) report for Haryana found that the system of appointment of law officers followed in the state does not assess the manpower requirement, leave alone any worthwhile process of selection. The result is that more than half of those appointed were without any work, resulting in payment of idle salaries. The report stated: “The engagement of excess Law Officers without assessing the quantum of work and without resorting to fair and transparent selection method, resulted in allowing more than 50 percent Law Officers without work and payment of idle salary of Rupees 2.22 crore.”

In fact, in State of Punjab & Anr vs Brijeshwar Singh Chahal & Anr in the Supreme Court it was argued that without a proper system, the appointments may be made not because they are required but because “they come handy for political aggrandisement, appeasement or personal benevolence of those in power towards those appointed”.

The SC has ruled that the appointment of government counsel must be in public interest, unaffected by any political or other extraneous considerations.

Not just that. Dismissing a plea by the Bihar government to grant it a free hand in appointing government lawyers, the Supreme Court had observed in March, 2017, that a government lawyer should be appointed on the basis of an advocate’s performance in courts and not his political connections. The bench headed by Chief Justice JS Khehar, Justices DY Chandrachud and Sanjay Kishan Kaul stated: “The cases involving the governments were crucial in many aspects touching key areas of governance. A certain degree of competence was required from the advocates to represent the government and render meaningful assistance to the courts. Have some mercy on the courts too. Mere connection with politicians should never be the criteria to appoint an advocate as government lawyer.”

In yet another petition that broke the cycle of political appointments in Tamil Nadu, advocate Vengadessane Vasanthakumar had asked the Madras High Court to issue directions to the government to follow prescribed rules and regulations in the appointment of standing counsels for various state departments. The first bench of the Court headed by the then Chief Justice Sanjay Kishan Kaul in August, 2016 directed the Tamil Nadu government to devise rules and regulations for the appointment of government counsels. The procedure laid down by the Madras High Court was:

·        The Advocate General of the state of Tamil Nadu should send a list of the names to the government.

·        The Advocate General will then send the list to the government.

·        A team of senior government officials will scrutinize the list and then appoint the standing counsels.

·        Two senior advocates of the Court to be appointed as amicus curie

But Vasanthakumar has refused to accept the proposals. He says: “There is no transparency in these proposals. For example, on what basis will the AG select an advocate and send his name to the government for his or her appointment as standing counsel? As soon as the court opens after the vacations, we will take up the issue before the first bench which originally gave directions to the government.”

There is also a controversy relating to the AOR exam. Clearing it is only mandatory for a standing counsel if he has to file cases in the Supreme Court. But why is it often referred to as a mere formality? A Supreme Court advocate had this explanation: “The questions for the AOR exam are prepared by lawyers and whoever is well-connected can get hold of them well in advance. It hardly takes a month to prepare and pass the examination. Hence, practically speaking, it is just a formality.”

The states claim that the engagement of state counsels is a professional engagement and hence they are under no obligation either to prescribe a procedure or follow any definite method while making such appointments. This is indeed a convenient position to take. India Legal was given to understand that a standing counsel cannot be dismissed till the government of the day decides to change him/her. This and other arbitrary policies give political parties in power the leverage to bestow largesse on those they wish to favour.

—With inputs from Vipin Pubby in Chandigarh, Ramasubramanian
in Chennai, Rakesh Dixit in Bhopal and Neeraj Mishra in Raipur

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கே.எஸ் இராதாகிருஷ்ணன்

17-06-2017