The writers of our Constitution who incorporated in it a set of non-enforceable directive principles, including the guidance to “the State to... improve public health, particularly by prohibiting intoxicating drinks and drugs injurious to health”, would have never imagined that one day the country’s top law officer, the Attorney General, would defend bar owners in their legal fight with a state government.

The current attorney general, Mukul Rohatgi, is doing just that.

Rohatgi has argued before the Supreme Court that the liquor policy of Chief Minister Oommen Chandy’s government in Kerala, which seeks to reduce alcohol consumption in the state, was against the interests of bar owners and those dependent on them.

An angry Chandy lashed out at Rohatgi, criticising the attorney general’s special appearance for a private party in a matter of public policy. He also questioned Prime Minister Narendra Modi’s policy on liquor consumption, who, as chief minister of Gujarat, introduced strict conditions on sale of alcohol.

Chandy’s reaction raises crucial issues that have been touched upon in the past but never take seriously: should an attorney general, who holds a constitutional office, appear for a private party in a case pitched against the state government?

Need for regulations

The attorney general is the Indian government’s chief legal advisor and its primary lawyer in the Supreme Court. He is appointed by the President of India under Article 76(1) of the Constitution and holds office during the pleasure of the President. It is stipulated that he must be a person qualified to be appointed as a judge of the Supreme Court.

The attorney general can accept briefs but cannot appear against the Government. He cannot defend an accused in criminal proceedings or accept the directorship of a company without the permission of the government. There’s no administrative restriction on an attorney general from accepting a non-government brief, but he has to seek prior permission of the Union Law Ministry to defend a commercial client.

“There is nothing wrong if the AG accepts a private brief,” a noted veteran constitutional lawyer said on condition of anonymity. “There is no restriction on him.” But it’s expected that he would not appear for lucrative private clients frequently.

PP Rao, a senior constitutional lawyer who was nominated to the Lok Pal selection committee under the United Progressive Alliance rule, too emphasises that the attorney general should not be seen representing private clients often. “It’s a privilege for rare occasion,” Rao explained.

Before Lal Narain Sinha became attorney general in the early 1980s, the practice of the top law officer accepting a private brief was unheard of. “The situation drastically changed after that,” Rao said. “It has been quite common for an AG to defend some non-government client. There’s a need to regulate the practice.” Until the 1960s, there was no need to secure the government’s nod to defend a non-government client – that was made mandatory later. Even so, attorney generals were concerned about preserving the propriety of the high office.

Conflict of interest

Although Rohatgi defends his action in the Kerala bar owners’ case, a lawyers’ group, the National Lawyers Campaign for Judicial Transparency and Reforms, is agitated over his advocacy in a matter that concerns public health, public policy and public interest.

Mathews J Nedumpara, who heads this NGO, is critical that attorney generals, solicitor generals and additional solicitor generals attend more to private work instead of taking proactive interest in speeding up pending matters in which the government is a party. Nedumpara says the government must draft guidelines concerning the practice of private professional calls of law officers who draw their salaries, perks and fee from the national exchequer.

Soon after his elevation as the 14th attorney general on May 28 last year, Rohatgi had stated that he would avoid cases that posed a conflict of interest between his past practice as a private lawyer and his new job as the government’s top legal officer. One month later, he recused himself from the 2G spectrum allocation case because he had represented some of the accused companies.

Six months on, however, Rohatgi appeared for the government despite defending the company in the same matter as a private lawyer a year and a half before. It was a case of alleged customs duty evasion of Rs 861 crore by the $3billion Welspun Corporation Ltd, as had reported.

Now, reacting to Chandy’s criticism, Rohatgi says that he had appeared for the bar owners in his “personal capacity”. “Why is the government of Kerala afraid of a lawyer? There’s nothing wrong in appearing for them [the liquor bar owners].”