Arbitrariness and opacity rule the way cases are marked to law officers
Prasanna Mohanty | February 5, 2013
Solicitor general Rohinton Nariman’s resignation from office revives the old ghosts of arbitrariness and opacity that rule the way the cases are marked to the law officers of the government, and which were so vividly brought to the light, for the first time, by former additional solicitor general (ASG) Bishwajit Bhattacharyya in his book, “My experience with the office of Additional Solicitor General of India”, in November 2012.
Nariman is not the first one to resign. His predecessor Gopal Subramanium too had quit, in July 2011, in protest against the murky goings on in the law ministry and its Central Agency Section (CAS) that marks the cases for all law officers, including the solicitor general and additional solicitor general, who are the second and third highest, respectively, law officers of the government. Two other ASGs, Parag Tripathy and Vivek Tankha, too, have resigned since UPA began its second innings in 2009.
Here we reproduce the article by Prasanna Mohanty, “Dismantle Central Agency Section: Former ASG”, carried in our December 1-15 issue, to revisit on the murky goings on in the law ministry and its officials.
Dismantle Central Agency: Former ASG
That is, if you want the union government to stop losing revenue
This is how the union law ministry describes its all-powerful, much feared but little known division, called Central Agency Section (CAS):
“The litigation work in the supreme court on behalf of all ministries/departments of the Government of India and some administrations of the union territories is handled by the Central Agency Section presently headed by a joint secretary”.
That was some years ago. Now it is presided over by an additional secretary-level officer.
Theoretically then, it is the CAS that allocates legal works, marks files/briefs to all the government law officers – attorney general, solicitor general and additional solicitor general of India – to plead for the government in the apex court and therefore, controls crucial legal cases.
Now read how former additional solicitor general (ASG) Bishwajit Bhattacharyya, who retired at the end of his three-year term on November 9, 2012, describes this body in his book released the very next day, ‘My Experience with the office of Additional Solicitor General of India’:
“I decided that during my entire tenure I would never enter the office of the Central Agency and I stuck to my decision…. In my life I had taken another similar vow pertaining to another organisation; and that is, not to enter any police station…. But between the Central Agency and a police station if I have to choose, I may end up choosing a police station.”
“I don’t know who controls this office (CAS). It is headed by a senior officer from the law ministry, but who gives instructions to the head of Central Agency? How instructions are given?”
“In my perception, there has been total anarchy in the Central Agency without any accountability! This I witnessed for almost three years!”
“Till today, after functioning as an ASG for almost three years, I don’t know how cases are marked, who marks and the basis of marking! The entire exercise is shrouded in non-transparency! It smacks of arbitrariness in the extreme!”
Pray, why such harsh words?
The book provides some devastating details about its functioning.
We sample some:
· Bhattacharyya was appointed ASG for Indirect Tax, on November 10, 2009, with a presidential notification to that effect. An ASG for Direct Tax had already been appointed nine months earlier. There was no official or unofficial briefing. On that very day, he paid a courtesy call to a senior that ended in one-and-a-half minute flat. The only conversation was an advice to meet the finance minister for official accommodation. He also met a “colleague” who, after an exchange of pleasantries, enquired if he was comfortable with “direct tax” matters. He replied in the negative because his expertise and appointment was for handling “indirect tax” matters. He writes he didn’t know what happened next, but that very night, at 10, a messenger from the Central Agency landed at his residence to hand over two briefs. The briefs were for “direct tax” matters, listed on top of the board for hearing very next day in the highest court of the land. For the next six months, he continued to be “marked” direct tax matters only.
· And then, when he was seemingly doing well in direct tax matters, he was dumped with indirect tax matters, even non-tax matters. In the last four months of his tenure, he was given little work, enabling him to pen his book, find a publisher and get it released the day after he demitted office. Indirect tax cases were “marked” to someone else while he sat idle and “felt humiliated”. This was happening at a time when the other person was so overloaded with cases that he admitted to have returned briefs.
· More often than not, and in high stake revenue cases, he found the briefs completely missing from the files; or important pages, documents “invariably found missing”, even “torn” and for Friday’s hearing of SLPs (special leave petitions), briefs were “delivered invariably late on Thursday night leaving little or no time to read the briefs”. In one case, he received the brief at 10.29 am for a matter listed for 10.30 am – a minute later. In another case, 21 SLP briefs were marked to him at 8.15 pm on a Thursday night to be argued the next morning in three different courts. In yet another case, he was “offered” a brief at 11.24 am for a matter listed for the same day (court proceedings begin at 10.30 am). “This farce surpassed all previous performance of the Central Agency! Even the docket didn’t reach me actually.” What happened to the case is not known. How much potential revenue the government lost is not known either. It is no secret that an ill-prepared law officer is the best bet to lose a case and cause of a huge revenue loss. He protested, but it fell on “deaf ears”.
· In one case, he and his team had spent 50 hours preparing for it. A senior officer had flown in to brief. But when the matter was to come up for hearing, the case was found “marked” to somebody else. There were many such cases.
· In a large number of revenue cases, appeals against adverse orders are either not challenged or so delayed that the court throws them out for delay. No less than former CJI Justice SH Kapadia had “expressed exasperation” at repeated delays observing that higher the revenue stakes, the greater was the delay. Bhattacharyya wrote a protest letter. The action was prompt. He was taken out of the cases he was pursuing for filing quick appeals.
The normal limitation period for SLPs is 90 days. Bhattacharyya cites a few instances of “high stake revenue matters” which were “time barred” by, believe or not, 403 days, 369 days, 159 days, 259 days, 197 days, 282 days and 278 days. Revenue secretary admits in a letter to him, in response to a complaint, that between April 1, 2009 and November 29, 2010, 21 cases were “dismissed” on the ground of delay, but in a manner that suggests it is negligible in terms of number, as if the loss of revenue is irrelevant.
· Not once did the highest law officer, the attorney general, hold a meeting with other law officers during Bhattacharyya’s entire period of three years. Interactions with law ministers were “minimal”. So, no opportunity to discuss or sort out the mess. He writes he doesn’t even know who to complain.
It is a truly Kafkaesque world.
So, what do you do with it? What’s the solution?
Bhattacharyya’s book says, “Dismantle the Central Agency in all revenue litigation”. The union government would stop losing cases in the apex court and also check revenue loss.
“ASG Direct Tax and ASG Indirect Tax should report to the finance minister direct. CBDT and CBEC may facilitate administrative convenience”, he writes, adding that CBDT and CBEC, handling the revenue matters, should be elevated in the hierarchy of governance and made totally independent. They should appoint the law officers and be held accountable for lapses. Besides, instead of some invisible hand “marking” the cases and files, the “law officers must be involved in marking briefs, and nobody else”. The law offices are better positioned to grasp the implications of a brief and the impact that a case is likely to have on governance.
By no means, the rot is limited to the Central Agency.
However, one issue that has drawn little attention and is flagged off in the book is the manner of “listing” of the cases in the supreme court.
He says in many instances “regular hearing” matters just wouldn’t come up for hearing “even after one or two years” or suddenly disappear from the cause list “abruptly” and non-miscellaneous matters would find a place by jumping the queue. The infamous Vodafone case was one example of jumping the queue.
Then there are instances when “abruptly cases get deleted/eliminated from the advance cause list”, causing huge inconvenience to litigants and lawyers. “I don’t know on what basis cases get deleted from the cause list.” He mentions one particular big and sensitive case pertaining to alleged evasion of customs duty on import of aircraft. He was told by the customs officials that this was “extremely important with wide revenue implications” because several such cases had been booked by the department. That was in September 19, 2011 and the hearing was scheduled for the next day. He kept waiting for more than a year. In fact, the case hasn’t come up even now. “This was hardly the solitary case which didn’t reach for hearing!” He would read up a file 50 times on different days waiting for the hearing but the matter wouldn’t just come up “for years”.
The big question is who will stymie the rot and how?
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