The Allure of Private Practice

The outgoing attorney general’s request to the government not to grant him another term brings the focus back on law officers’ other lucrative cases 

~By Venkatasubramanian

When Mukul Rohatgi became the 14th Attorney General of India three years ago, he considered it a kind of moral obligation. He told legal journalist Indu Bhan (in her book Legal Eagles) that apart from being an honour, serving as the AG is one way of giving back to society or to the profession from which one has earned name, fame, money and reputation. He said: “And these are not lifelong things—a lawyer practices for only about 50 years. I have already put in 35 years. If I put in 40 or 50 years, out of which if I take five or 10 years to give back to the profession, it is not a big deal.” For Rohatgi, the appointment as AG made him aware of the challenges outside and within the legal fraternity.

Rohatgi added then that his top priority as AG would be to streamline litigation for the government in the courts, and see to it that the superior courts are not flooded with frivolous and petty litigation. Three years down the line, his professional goal as AG would seem to be largely unaccomplished with the government continuing to be a major litigant in the superior courts, unable to extricate itself from insignificant appeals against lower court verdicts.

Three years down the line, Rohatgi’s professional goal as AG would seem to be unaccomplished with the government as a major litigant

Therefore, as his three-year term came to an end on June 11 this year, his request to the government not to renew his term as he wanted to return to private practice made one wonder whether he no longer considered the post a moral obligation. Rohatgi added that he enjoyed a good relationship with the present government at the centre as if to dispel any possible misgivings about his reluctance to continue as AG despite the government renewing his term as an ad hoc measure on June 6.

Although Rohatgi had earlier served the Atal Behari Vajpayee government as Additional Solicitor General for five years, his appointment as AG, in view of the unique responsibilities of the office, led to different expectations of his likely contribution. Therefore, his explanation that his total experience as the government’s law officer for eight years was long enough to justify his quitting convinced none.

Union law minister Ravi Shankar Prasad has praised Rohatgi for completing his tenure as AG with distinction, and revealed that the government would respect his decision. Prasad has also indicated that the government would announce the name of Rohatgi’s successor at an appropriate time.

As most of Rohatgi’s predecessors opted to continue in office till the governments which appointed them were in power, his abrupt exit within three years of the Modi government’s tenure raised eyebrows.

Although Rohatgi’s term as AG expired on June 11, the terms of most law officers of the government based in Delhi expired on June 6 with the exception of Pinky Anand, Additional Solicitor General (ASG), whose term expires on July 6. The term of Solicitor General Ranjit Kumar, which expired on June 6, was also renewed as an ad hoc measure.

Of the six ASGs, Neeraj Kishan Kaul, resigned, and resumed his private practice before his term ended on June 6. Although the terms of the remaining ASGs, namely Pinky Anand, PS Narasimha, Maninder Singh and Tushar Mehta were renewed on June 6, PS Patwalia’s was not. Besides, there were six ASGs, who practice in the Patna, Calcutta, Karnataka, Punjab and Haryana High Courts, the Southern Zone and the Supreme Court (ASG Atmaram Nadkarni). Their terms end in 2018 and 2019.

Rohatgi’s desire to return to private practice, therefore, has raised questions about why law officers of the government succumb to it, despite the recognition and prestige which their positions bestow on them.

Law officers of the central government can obtain permission from the Union law ministry before they represent private parties. The permission is granted on a case-to-case basis, with a clear stipulation that they can do so as advocates and not as law officers of the central government.  Instances of the law ministry refusing to grant permission to law officers to take up private practice in certain cases are not uncommon, al-though the reasons for refusal are not made public.

During the first two years of the Modi government, it was reported that the law ministry denied permission to Patwalia—who has the distinction of submitting 18 requests for permission—in three cases. The government also denied permission to Pinky Anand to represent private parties in six cases, while allowing in 11 other cases as requested by her. The ASG at the Madras High Court, G Rajagopalan, could convince the law ministry to accord permission to him to argue a private matter only in one case, although he had submitted five such requests.

The legality of private practice of law officers was challenged in the Supreme Court in the wake of Rohatgi appearing for a four-star hotel in the Kerala Bar Hotels Association case in 2015.  The writ petition, which challenged the practice, was, however, dismissed by then Chief Justice HL Dattu.

As the counsel for the hotel, Rohatgi challenged the validity of the Kerala government’s liquor policy restricting the grant of bar licences to only five-star hotels. Although the Supreme Court’s verdict in this case went in favour of the Kerala government, Rohatgi did not come out creditably in this case. His claim that he obtained due permission to represent the four-star hotel was based merely on an oral consent which he obtained from the law minister. The formal written permission was granted to him a week after he made his first appearance as the lawyer for the hotel. Then law minister Sadanand Gowda permitted Rohatgi to represent the hotel on the ground that he had appeared for it earlier also.

The legality of private practice of law officers was challenged in the Supreme Court in the wake of Rohatgi appearing for a four-star hotel in the Kerala Bar Hotels Association case in 2015.  The writ petition, which challenged the practice, was, however, dismissed by then Chief Justice HL Dattu.

The Department of Legal Affairs, according to reports in a section of the media, reiterated in October 2014, 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.

Rule 8(1)(a) of the Law Officer Conditions of Service Rules, 1987, says that a law officer shall not hold briefs in any court for any party except the Government of India or the government of a State or any university, government school or college, local authority, public service commission, port trust, port commissioners, government-aided or government-managed hospitals, a government company as defined in section 617 of the Companies Act, 1956, any corporation, owned or controlled by the State, and any body or institution in which the government has a preponderating interest.

Rule 10, which deals with the power to relax the above restriction, says: “Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, and for reasons to be recorded in writing, relax any of the provisions in these rules.” Rule 10, however, has a key proviso which says that Rule 8 shall not be relaxed in relation to any matter where the government of India or any central government instrumentality is or is likely to be affected.

Although the rules and the guidelines do not make it clear what makes a case exceptional to merit grant of permission to a law officer to take up private practice, the ministry’s office memoranda, accessed at its website, say that the law officers request permission to appear in private cases in a routine manner.

“Sometimes, the number of requests is so large that it tends to take away sizeable amount of time of the law officer in private matters and in the process, their prime attention in government cases suffers,” one such memorandum said.