Shyam Divan’s article in The Hindu today refers to the change in how the Attorney General’s office has prioritised its duties towards the three Cs – Client, Court, and Constitution.
Mr. Divan had this to say about the recent conduct of Goolam E. Vahanvati, the current Attorney General of India:
“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.”
As an advocate, the Attorney General owes a duty to both client and court. The following extract from Section II (“Duty to the client”), Chapter II (“Standards of professional conduct and etiquette”), of Part VI (“Rules governing advocates”) of the Bar Council of India Rules is relevant to Mr. Vahanvati’s conduct.
“33. 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
It is also important to understand that appointments to the office are made by the President of India under Article 76 of the Constitution of India. The Attorney General therefore, also has a duty to uphold the Constitution. Very often, this duty would require him at act independent of the Government of India.
M.C. Setalvad understood the need to balance the Attorney General’s duties towards the Client (Government of India), the Court, and the Constitution.
“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.””
Mr. Divan’s belief is that Mr. Vahanvati’s recent conduct is part of a trend where the Attorney General’s duty to the Client has been prioritised over the duty to the Court and the Constitution.
(Aju John is part of the faculty on myLaw.net.)