While he offers legal advice to the government in the Coalgate case, he must not forget that his primary duty is to protect public interest

The role of the office of the Attorney General (AG) in the Coalgate case presents an ethical dilemma of public importance: how should top law officers of the Union government discharge their duties when senior government officials are being probed?

On Coalgate, the Attorney General represents the Union government since November 19, 2012. The Central Bureau of Investigation (CBI) represented by a separate set of lawyers told the Supreme Court earlier this year it was investigating the suspected criminal conduct and corruption on the part of officials in the Union government with regard to the allocation of coal blocks. Simply put, the CBI had been investigating officials who were working for the Attorney General’s client. Nevertheless, in February and March this year according to the affidavit filed by the CBI Director, the AG was present at meetings with CBI officers, even advising them. The CBI Director states that the advice of the Attorney General was incorporated into the CBI’s confidential status reports, subsequently filed in court. The Attorney General continued to appear for the Union government even after the CBI Director had made such a declaration.

Conflict of interests

The rules of professional responsibility are intended to maintain the integrity and competence of the legal profession. The responsibilities cast on a lawyer are many but notable among them is the simple rule that an advocate “who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead for the opposite party.” It is a primary responsibility of a lawyer to best serve the interest of his client without putting himself in a position that results in divided loyalties to differing interests.

In 1983, the Supreme Court reminded a young lawyer who first appeared for the complainant and thereafter accepted a brief for the accused: “[A lawyer’s] paramount duty is to the client and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interest of his client.”

In that case, Chandra Shekhar Soni v. Bar Council of Rajasthan, the Court held it was unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of facts.

The Attorney General for India is a constitutional office and is held by a person qualified to be appointed a judge of the Supreme Court. The Attorney General continues in office “during the pleasure of the President,” a dignified phrase that has its medieval origins in the notion of holding office “during good behaviour.” In practice it means until the AG enjoys the confidence of the Prime Minister and his council of ministers.

In creating this office, the framers of India’s Constitution sought to ensure that the Union government received legal advice “free from the trammels of political or party associations.” The value of independent advice is enormous because the government, like everyone else, must obey the Constitution and the law.

The constitutional expert, H.M. Seervai, condemned the notion of law officers “committed to the philosophy of the government” as an “aberrant doctrine” that was: (a) unconstitutional and (b) opposed to the organisation of the Bar. The Attorney General is expected not only to offer legal advice to the government but also act independently of it, where required. This is because by the nature of his duties, the Attorney General is the guardian of the public interest.

Mundra case

The first AG, M.C. Setalvad, led by example in this regard when he appeared before the Chief Justice M.C. Chagla Commission inquiring into the Mundhra scandal in 1958. His severe comments on the conduct of then Finance Minister, T.T. Krishnamachari, and Chagla’s report itself led to the latter’s resignation. In the wake of the Commission’s report, one Member of Parliament criticised Mr. Setalvad’s independence: “The Attorney-General whom we sent to defend our case, became the prosecutor of the Finance Minister and, incidentally, of the Government.”

In matters of criminal law and more particularly in cases concerning corruption — as is the case with Coalgate — the office of the AG has a duty to protect the public interest. At a minimum, this duty would entail ensuring that the Coalgate case is not perceived by the public as scripted theatre where the law officers representing opposing sides are aware of each other’s lines. The sordid business of a law officer appearing for the Union government in defence of its actions and holding meetings with the CBI officials investigating the role of government officials may not comport with standards of professional responsibility.

Self-correction

Can the system self-correct? Prime Minister Manmohan Singh’s council of ministers comprises individuals who were distinguished legal practitioners before assuming the responsibilities of ministerial office. It is understandable that the burdens of high office may have diverted their attention away from the incongruent working of the office of the Attorney General in Coalgate. Then again, high altitude amnesia is not unknown in the annals of medicine. It is quite possible that as one rises to the highest levels of government, one temporarily forgets the professional moorings of an erstwhile calling.

A course correction may also not occur at the instance of the Bar. In a culture of fawning obedience, the currency of the realm is flattery, not rectitude. An issue of professional conduct by an office that ought to set the bar, is unlikely to spur our Bar Associations or Bar councils to action.

When the Court takes up Coalgate next, the Attorney General will appear with aplomb and doubtless assist the Court in reaching a fair verdict. Nevertheless, ignoring the edicts of professional conduct by law officers, weakens the administration of justice.

The enormous responsibility of lifting and preserving the prestige of this office eventually falls on every new generation of lawyers. One may visualise a bright, young law student interrogating her professor in a legal ethics class and inquiring how a law officer of the Union government could act and advise on opposing sides. And the professor’s response, forged in the smithy of contemporary conduct, may be considerably more ambivalent than what Mr. Seervai or Mr. Setalvad may have said. Then again, should the professor be fond of the children’s book series Berenstain Bears, she may well respond in the manner of Papa Bear to his son:

“That is what you should not do

So let that be a lesson to you.”

(Shyam Divan is a senior advocate.)

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