Coal, Iron and the Curious case of Law Officers: A recap of the Obvious

The past few weeks have witnessed two courtrooms of the Supreme Court engrossed in arguments and counter arguments in two of the most sensational cases in the recent times. While Court Room 3 is privy to the rigorous ordeal of having to sit through Attorney General (AG) Goolam Vahanvati’s defence of the Central government and the Coal Ministry in one of the biggest scams to have rocked the country, Court Room 6, that is located at the northern end of the Supreme Court, is audience to the case of illegal mining of iron ore in the tiny, western coastal state of Goa..Although the proceedings in both coal and iron ore scams have, in recent times, been uneventfully colourless, they have thrown up the occasional heated argument, catching judges off guard and waking up the sleepy scribes and the equally drowsy audience..Court Room 3 is presided by Justice RM Lodha and other judges of the Bench include Justices Madan B Lokur and Kurian Joseph. This three judge Bench has now been hearing the Coal scam matter for quite some time. And though the initial hue and cry has died down, it would be wholly incorrect to assume that the drama is over..The affidavits submitted earlier this year by the CBI captured the attention of the whole country. Mainstream media had celebrated Justice Lodha’s rhetoric of the Central Bureau of Investigation (CBI) being a “caged parrot” and the “necessity of shielding the CBI from extraneous interferences”. Justice Lodha’s remarks had come in the wake of the affidavits submitted by the CBI Director Ranjit Sinha revealing the dubious interference of the “political executive” in the CBI’s bailiwick. However, the law officers and their role in the muddled meddling seems to have been a subject of oblivions curse as both the Court and the media (who conveniently or perhaps unintentionally) let go of the issues and controversies surrounding the law officers. These issues, if properly taken up, would have had implications of substantial proportions..Apart from the alleged Executive misdemeanours, what the Coal Gate proceedings witnessed was a highly controversial drama involving the law officers of the Supreme Court. It all began when the CBI Director submitted on affidavit that the status report on the investigation into the scam prepared by the CBI had been shared with the “political executive”. Normally, this would have put only the CBI in the docks. However, the fact that the AG and the then Additional Solicitor General (ASG) Harin Raval had affirmed before the Court earlier that they had neither seen the status report nor had it been shared with the government lent a different dimension to the story..Here were law officers, whose primary duty as officers of the court is to assist the court in meeting the ends of justice, making allegedly false statements before the apex court of the country. The affidavit by the CBI Director led to Harin Raval resigning from the post of ASG but not before he shot off a strongly worded letter to the AG. Detailing the background of the events regarding the controversial status report of the CBI, Raval lashed out at the AG in his letter stating that,.“You had deemed it appropriate to take a stand that the contents of the Status Report were not known to you, which fact you knew to be incorrect. On account of your statement, I felt embarrassed and was forced to take a stand, in Court, consistent with your submission made as Attorney General for India, that the contents of the Status Report were not known to you and that they were not shared with the Government…..It has constantly pained and anguished me that I have had to face unnecessary indignation on account of your intolerant temperament towards the conscientious discharge of duties especially in high profile cases.”.In the subsequent hearing on May 8, when a more detailed affidavit was placed on record by the CBI, Justice Lodha’s observations in Court Room 4 (where the Coalgate matter was initially heard) gave the media enough cause to celebrate for half a week. The Court on that particular day was chock a block with media personnel and lawyers jostling for space. The Supreme Court Bar Association (SCBA) President MN Krishnamani had also made his way into the court to witness the action as SCBA had received a petition from its members to take action for the “alleged misconduct before the Hon’ble Supreme Court of India by the Senior Law Officers of Union of India.”.However, the Court on that particular day chose to conveniently overlook the actions of the Attorney General. When Advocate ML Sharma (one of the petitioners in the Coal scam and an infamous Public Interest Litigator) submitted that “if the Court is satisfied that ASG and AG have committed perjury, it should refer the matter to the Magistrate for trial”, Justice Lodha responded by saying that “we do not want to go into those issues”. The loud cry of “chor” as AG began to speak and the subsequent discourse by the Court on the dire need of maintaining the independence of the CBI is, as they say, “history”. Why the Court refused to “go into those issues”, we might never know; however, rumours were rife about the possible resignation of Vahanvati from the post of AG, something which has not happened to date..As the case progressed, another law officer got added to the list of casualties (though not fatal this time). It was ASG Siddharth Luthra, who was representing the CBI, who excused himself from the case on the ground of conflict of interest. Meanwhile, the case, which was meant to examine the veracity of coal block allocation, drifted away and turned into an exercise of dissecting the Delhi Special Police Establishment Act, 1946 to ascertain the degree of control the executive could exercise over the “caged parrot”. .More affidavits came in from CBI, this time alleging that the Centre was not co-operating with the investigation. In the hearing that ensued on August 29, the Court slammed the Centre for failing to share information with the CBI and to lodge FIRs on missing files. Justice Lodha was particularly irked by the explanation given by the Centre that the “files were being searched”. He even raised suspicions as to whether it was an attempt to destroy the records in the case..By then the hearing had shifted to Court Room 3 and arguments on the allocation of coal blocks, which forms the crux of the case, got back on track as the three judge Bench began to sit on a daily basis. As the AG began his arguments, the Central government faced the music again. On more than one occasion, the AG was unable to satisfy the Court; and he ended up “losing his cool” one morning retorting that.“I need time. We will have to find the information and get it for the court. I don’t have it in the back of my mind. I can’t go on like this. There is a tremendous strain on me. Every time we answer the questions, fresh questions are put without there being any pleadings from the PIL petitioners”..He later apologised for his outburst but his statements only reaffirmed the conviction about the “strain” under which the legal camp of the biggest litigator in the country functions. Things reached a dramatic climax one evening when the Court gave ML Sharma a free hand to interrupt the proceedings and take a dig at the AG. Ranting about his “learned friend AG” Sharma stated: “My Lords, for the last three days the AG has been submitting to this Court that he will explain everything to your Lordships but he has failed to lend even an iota of clarity, which I have been eagerly expecting since the day AG began his arguments.” All the three Judges heartily indulged themselves in the entertainment provided by Sharma’s words and animated gestures, and the entire court room drowned itself in what the AG himself later proceeded to call a “commercial break”..The incident may have had little legal significance but the manner in which the three Supreme Court Judges allowed the highest Law Officer of the country to be subject to such ignominy by a not so well known lawyer may be evidence of the uninspiring defence which the Centre had been putting up. Ascertaining the responsibility of seven States governments in the coal block allocation and issuing notice to them have given a brief respite for the AG and the Centre and a much needed break in the hearing. The matter will now be taken up on October 29 when these seven States will enter appearance for the first time..Meanwhile Court Room 6, housing the forest Bench, rechristened “Green Bench”, is quarrying the truth about iron ore mining in Goa. Though bereft of the level of drama which Coal Gate witnessed, law officers have had to face the grilling in a near similar fashion. Solicitor General (SG) Mohan Parasaran has had a testing time putting forth the facts in a case which may well turn out to be another big shame for the Central government. During the course of the hearing, the SG was, however, candid in admitting that “some environment clearances to mines are indefensible”. He also undertook to review the clearances given to all the 137 impugned iron ore mines and file affidavits in relation to each of them by the third week of October..Corruption in the ruling class has never been something new. However, the role of law officers, their independence and the duty they owe towards the court have never been subject to such intense scrutiny before. All the same, it would be worthwhile to remember at this juncture that this is not the first time such questions have been raised. The infamous reply of the then Attorney General Niren De to Justice HR Khanna that “even if life was taken away illegally, courts are helpless” in the Habeas Corpus case, and the allegedly biased opinion rendered by Milon K Banerjee in the Taj Corridor matter are cases to the point. Even the current AG had been under scanner before when he had to testify as witness in the 2G scam..Further, the hubbub and speculations over the resignation of two previous Solicitor Generals, Gopal Subramanium and Rohinton Nariman had hardly died down when the new controversies erupted. Subramanium had resigned in protest against the decision of the Centre to appoint Nariman instead of him in the 2G case. Speaking to Bar & Bench, Subramanium had said that,.“I was concerned for the office of the Solicitor General. The office of the Solicitor General must be viewed as an office completely at arms length from the Government….The conduct which is expected from a judge is quite the conduct which is expected from a law officer, whether it is an Attorney General or a Solicitor General or Additional Solicitor General…… When I realized that this perception itself was getting diluted, I became concerned about the position of these law officers and I decided that I should resign, especially when I felt that the arms length principle not being reciprocated by the Government.”.Ironically, Nariman, who succeeded Subramanium as the SG, had also resigned over alleged differences with the law minister..But perhaps it would be unfair to lay the blame solely on the law officers. I had the occasion to interact with a junior of one of the top law officers, who said,.“They [government] take contradictory stand and then come to us expecting us to defend them.”.This sums the problems of the top law officers and the pressure they have to face..Who is to be blamed – the government or the law officers?.To conclude, the principle of independence of law officers enunciated above resonates in the words of former Attorney General Soli Sorabjee when he said,.“Leave aside Attorney General, every lawyer is an officer of the court and he owes a duty of fairness and frankness to the court. That should never be breached. Of course, you have to protect your clients’ interest but more important is the question of how you deal with the court. The court must not be taken for a ride in any case. There should be no lack of honesty as far as the court is concerned. And these are the high standards, which a law officer should always maintain. When I was a law officer, I said things that I knew would go against the government; but you have to be frank. You are not in court to win every case. You have to essentially see that justice is done.”.Picture of Harin Raval taken from here.