New Delhi: In a recent case in the Supreme Court, Kerala Bar Hotels Association vs State of Kerala, Attorney General Mukul Rohatgi appeared for a private four star hotel which challenged the validity of the Kerala government’s liquor policy restricting the grant of bar licences to only five star hotels. The AG defended his appearance for a private party, Hotel Sky Pearl, on the ground that he had obtained due permission from the Union law ministry under rules governing the private practice of law officers representing the Central government. The case is a civil appeal against the Kerala high court’s decision on March 31 which was in favour of the state government’s policy.
The judgment in the Kerala Bar Hotels Association’s appeal and the connected appeals has been reserved, and is expected to be delivered on December 29 by the bench comprising Justice Vikramajit Sen – who retires on December 30 – and Justice Shiva Kirti Singh which heard the matter.
As The Wire has reported earlier, the private practice of Central government’s law officers has become a serious problem over the years and the government has not been following a consistent policy on this issue.
Attorney General Mukul Rohatgi trips as he walks out of the Supreme Court in this 2014 photograph. Credit: PTI
In the case of Rohatgi, his name as the senior counsel for Sky Pearl (rather than as the AG) was listed in the Supreme Court’s cause list on July 10, when the hearing of the case before the Sen-Singh bench was set to begin, and he did appear in the matter that day as the senior advocate, rather than as the AG.
On the same day, Rohatgi wrote to the Union law secretary, P.K. Malhotra, seeking formal permission to appear for Sky Pearl, although in the same letter he referred to the law minister conveying his no objection to Malhotra. Formal permission was granted by Deputy Legal Adviser (DLA) (J) RK Srivastava to Rohatgi only on July 17, with the clear stipulation that his appearance would be as an advocate and not as ‘AGI’.
But the question is whether the AG had obtained the requisite permission from the government before appearing for the private party. On October 1, he told journalists that he had. However, the ministry’s own documents show that he had only obtained oral clearance from the minister on July 10, when he made his first appearance in the matter. This raises questions of propriety.
Another news item dated July 11 quotes the AG saying he had already obtained the permission.
The private practice of law officers was challenged by a writ petition filed in the Supreme Court. The petition was dismissed by the then Chief Justice, HL Dattu, on October 1.
An internal note of the judicial section on Rohatgi’s request, FTS No.2229/LS/2015 dated July 15, 2015 – a copy of which is with The Wire – refers to the recent official memorandum No. 29(13) 2014-Judl, dated October 24, 2014, in which the department of legal affairs has reiterated its earlier guidelines to all law officers that they should refrain from seeking permission to appear in private cases. Any request should be made only for compelling reasons and in exceptional circumstances, it was pointed out.
The judicial section further brought to the notice of the law secretary that the excise policy of the state of Kerala is involved in the Rohatgi case, and that in one request of PS Patwalia, additional solicitor general for appearance in SLP(C) No.18321/2011, Anoop Kumar vs State of Haryana, (a service matter), the minister for law and justice had refused to accede to the request.
The law secretary, in response to this note, referred to his discussion with the minister for law and justice on phone (i.e. Sadanand Gowda), when he conveyed his permission for the AG to continue appearing in this matter as he had appeared in the matter earlier also.
It was only on July 17, one week after he had already appeared, that the AG was given formal permission to appear for Sky Pearl.
17 law officers sought permission
Ministry documents released in the case of other law officers do not reveal the reasons for grant of or denial of permission. One common question which the government poses to law officers seeking permission is whether the interest of the Union of India is affected in the case in which the concerned law officer wants to appear.
Documents further show that during the past two years, 17 Central government law officers sought permission to appear for private parties. Of these, Rohatgi himself made requests for permission to appear for private parties in two cases, and in both, the permission was granted.
Solicitor General Ranjit Kumar requested permission to appear for two private parties and it was granted.
Among the law officers, ASG Patwalia has the highest record of submitting requests for permission to appear for private parties. The law ministry granted him permission in 15 of his 18 requests. .
ASG Pinky Anand comes next with her 17 requests submitted for permission to appear for private parties. But the government rejected as many as six of her requests, while granting 11.
In one case, Anand sought permission after appearing as the ASG for a private party, the Odisha Joint Entrance Examination Committee. The ALA(J), J.S. Mishra asked her whether she sought permission for the appearance in the matter or the letter has been sent to this Department for information only. The letter from the department was sent to her on 25 August 2014, whereas she appeared as the ASG for the party on 20 August 2014.
Similarly, Anand sought the ministry’s permission to appear in Delhi Vidyut Board vs SK Chaudhary before the Delhi High Court, on August 4, 2014, and without waiting for a reply, appeared as senior advocate in the matter on August 5, 2014. The ALA (J), in his reply dated August 20, 2014 wondered whether she sought permission or sent the letter to the department for information only.
In another instance, Anand wanted to render a legal opinion in the matter of Janardan Rai Nagar Rajasthan Vidyapeeth (Deemed to be) University, Udaipur, Rajasthan. The ALA (J) replied to her on September 15, 2014 that this is not covered under the Law Officers (Conditions of Service) Rules, 1987, and therefore, the ministry was declining her request. A similar request by her to give a legal opinion in the matter of Karnataka State Open University, Mysore and Ministry of Road Transport and Highways for the High Security Registration Plates (HSRP) Scheme was declined by the ministry on September 15, 2014.
Yet in another case, Anand wanted to appear as counsel for the respondent in Anand Yeshwant Devkar vs State of Maharashtra and Others. To her request letter of September 14, 2014, the ALA replied on 15 September 2014 that the competent authority observed her appearance in the matter as ASG on 08.09.2014, and that she could not appear as the ASG in private matters.
Another ASG, Anil Chandrabali Singh, submitted 14 requests, and the government approved all 14. The ASG at Madras High Court, G Rajagopalan, submitted requests for permission to appear for private parties in five cases, of which only one was accepted by the law ministry. In one instance, the ministry, withdrew its approval after first allowing Rajagopalan to appear for a private party.