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Judicial cry in the wilderness
May, 07th 2008

Negligence and incompetence of law officers cost the exchequer enormously.

The government is involved in more than half the litigation in the courts and huge public funds are involved in the disputes which reach up to the Supreme Court. As the parties opposing the government in civil cases are mostly the rich and the influential, they can afford to pay the best legal brains to argue their cases. On the other hand, the government counsel are often ineffective and handicapped on several counts. This costs the exchequer dearly. The judges in the Supreme Court have found this a chronic problem. The appointment of 14 additional solicitors-general, a new and debatable practice, has not improved the situation a bit.

The proceedings in the court of Justice S H Kapadia and Justice Sudershan Reddy, who hear appeals in income tax, excise, customs and other revenue matters, emphasised in recent weeks the pathetic state of government defence in courts. The loss to the revenue due to the incompetence of the counsel and the law ministry officials assisting them must be astronomical. The judges were constrained to point out this aspect in a recent order in Commissioner of Income Tax vs Realest Builders & Services.

After referring to abortive efforts to improve the situation, the order said: "However, of late, we find once again advocates appearing before us for the Union of India in tax matters, involving huge revenue, who are not ready to argue the matters. Once again there is a re-lapse. This is one such case. Mr Amarjit Singh, learned Additional Solicitor General, informs us that he is not in a position to argue the matter on merits of the case as he was not briefed by the briefing counsel, Mr D K Singh. Even Shri B V Balram Das, Advocate-on-Record for Union of India was absent."

The extent of laxity can be seen from the fact that the relevant judgments of the Delhi high court have not been made available to the court. "We may add that of late in numerous matters, once again the Union of India remains unrepresented before this court. We are shocked at the state of affairs. Moreover, in this case, this court had given a fixed date and yet no arrangements have been made. We want in future proper assistance from Union of India in tax matters. We expect advocates to be briefed who have some experience in tax matters."

The court then imposed cost on the government for wasting its time and directed the registry to forward a copy of the order to the ministry of finance and to the ministry of law for their "urgent attention." Both ministries are headed by lawyers and P C Chidambaram is sure to remember nostalgically how many cases he had won on behalf of the corporates because of the lethargy and ineptitude of the government departments.

Though the registry was directed to submit a report of compliance of service on the two ministries, the story repeated itself a few days ago in another case, in the same court. The hearing in this case, American Hotel & Lodging Assn Educational Institute vs CBDT, had to be adjourned because the government counsel had not even been given the reply filed by the ministry. The judges found this out when the counsel argued impromptu, what was not in the government's counter-affidavit. The concerned additional solicitor general was called to the court and he gave another assurance of calling a meeting of the officials to set things right. He also complained of the lack of response to his letters to the officials.

In a case of 90s' vintage, the Supreme Court found the argument of the government counsel so inept that it dispensed with his help, closed the arguments and did investigation on its own. The reason was that the counsel was making concessions against the interest of the government itself. In that case, K I Pavunny vs Central Excise Collectorate, the court said: "We are at pains to point out that the persons involved in contravention of the provisions of the Customs Act are white-collared offenders and organised gangsters get the best of talent in the profession to assist them. The government should take care to entrust these sensitive cases of far-reaching effect to counsel who have experience and ability in that branch of law to defend their cases. Lest it is public justice that suffers and the economy of the country is put in jeopardy. It is, therefore, for the secretaries of the departments to look into the matter and set their houses in order. Equally, the Attorney General should also see that the affairs of the central agency are organised accordingly. Otherwise, the burden of the court is multiplied." You may play it again.

M J Antony

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