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.
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