#LawOfficers: Hits and misses by Centre’s lawyers in Supreme Court

Immediately after the Central government received a setback from Uttarakhand High Court, BJP leader Subramanian Swamy went no holds barred in his criticism of the Centre’s top law officers..Swamy said that both, the Attorney General and the Solicitor General were unprepared and should be replaced..Swamy has all along been at loggerheads with the Attorney General and Solicitor General after the Centre had opposed two of his petitions in the Supreme Court – the challenge to criminal defamation provisions and his challenge to the Constitutionality of hate speech provisions..It has been almost two years since this team of law officers took charge after the BJP came to power at the Centre. They have had their task cut out since then. Just like the previous team of law officers had a tough time defending UPA II which was rocked by various corruption scams, things have not been particularly smooth for the current team..The team boasts of some of the best lawyers in the Supreme Court. Attorney General Mukul Rohatgi had one of the busiest private practices when he took up the Constitutional post. Solicitor General Ranjit Kumar and Additional Solicitor Generals PS Narasimha, PS Patwalia, Neeraj Kishan Kaul were all lawyers with roaring practice in their respective spheres..However, the Central government, political leaders and party workers have made the going tough for these law officers. On a number of occasions, the legal team has had to come out in defence of the indefensible. Below are a few important cases in Supreme Court in which Centre’s law officers scored or missed..Misses.National Tax Tribunal: The first stumbling block.This was one of the first setbacks to the Central government in the many to.come. A Constitution Bench of the Supreme Court held that the National Tax Tribunal Act, 2005 (NTT Act) is ultra vires the Constitution. In the majority judgment authored by JS Khehar J., the court held that although Constitutional conventions do not debar Parliament from vesting judicial powers in tribunals, it should have the trappings of a court; else it would be violative of the basic structure of the Constitution..Attorney General Mukul Rohatgi had represented the Centre in the matter..Section 66A, Information Technology Act.In what was hailed as landmark decision on free speech, the Court struck down Section 66A of the Information Technology Act, 2000. Section 66A was considered the brainchild of then UPA Minister and Senior Advocate Kapil Sibal..However, by the time the Constitutionality of the provision came up for final hearing, it was the NDA’s team which had to defend the law, and the task fell upon Additional Solicitor General Tushar Mehta. Mehta’s arguments were well received by the Bench with Justice Nariman praising him for the assistance rendered by him to the court..However, the mood of the Bench, which included Jasti Chelameswar, had always been very evident during the hearings. It struck down the provision for being vague and violative of Article 19(1)(a)..NJAC: The major setback.The biggest setback yet related to the National Judicial Appointments Commission which was struck down by a Constitution Bench..Three senior law officers had appeared for the Central government in defending a law which was dubbed “Arun Jaitley’s baby”. The three were Attorney General Mukul Rohatgi, Solicitor General Ranjit Kumar and Additional Solicitor General PS Narasimha. The case was argued largely by Rohatgi with hearings taking place even during the summer vacation..Their efforts, however, went in vain, as the NJAC was struck down by 4:1 majority..Drought: Absence of law officer agitates Justice Madan B Lokur.The Centre has also been at the receiving end of the Court for not doing enough to mitigate the effects of drought. Barely two weeks ago, the Supreme Court’s Madan B Lokur J. came down heavily on Additional Solicitor General Pinky Anand for not being present in court during the hearing of the case..When quizzed about Anand’s absence, a junior advocate responded that she had a prior engagement in another court. This irked Justice Lokur, who retorted,.“Two Supreme Court judges have no other job but to come and sit here and stare at the clock and watch time ticking by…..You think drought is not important? There is a procedure to be followed. Inconvenience is to us. Not to you.”.This news reached Anand, who immediately rushed to court 8 and apologised. Considering the mood of the Bench every time the matter had been heard, this was one embarrassment which could have been avoided..Hits.Noose for Yakub Memon.Attorney General Mukul Rohatgi appeared for the Central government in the case..The case created a lot of furore and garnered much media attention, after it was heard twice in a span of 24 hours. The matter was initially dismissed after a day-long hearing..Subsequently, hours before Memon was to be hanged, he was given another hearing in the dead of the night. The court opened its doors at 3.30 am on a special request by human rights activists and lawyers..Despite their efforts, a Bench comprising Justices Dipak Misra, PC Pant and Amitava Roy dismissed the petition and Memon was hanged hours later..After the case had concluded, the Attorney General, was rather modest when he said that he does not consider it a ‘victory’ but only an ‘end to the judicial process’. However, his arguments in court and spat with Senior Advocate TR Andhyarujina did point towards the keenness of the Centre in getting Memon the noose. Rohatgi had referred to Memon as a “traitor” who had played his part in the killings of 257 persons..Haryana Panchayat polls.This was a major victory for the law officers of the Central government albeit in a case which did not involve the Central government but only the Haryana government..The Court upheld a law laying down education qualifications for contesting Panchayat polls in Haryana..The law in question, the Haryana Panchayati Raj (Amendment) Act, 2015 (Act) mandated that those contesting Panchayat polls should have passed the 10th standard. For persons belonging to Scheduled caste community and for women, the requirement is passing the 8th standard. For women belonging to Schedule caste desirous of contesting for the post of Panch, the threshold was even lower – 5th standard pass..A Bench comprising Justice Jasti Chelameswar and AM Sapre upheld the vires of the Act..Attorney General Mukul Rohatgi had appeared for the Haryana government in the matter..National Company Law Tribunal .After the setback in the case on Tax Tribunal, the case on National Company Law Tribunal and National Company Law Appellate Tribunals went the Centre’s way (at least partly) when it upheld the Constitutionality of the tribunals. The Court, however, did hold it against the Centre when it struck down provisions permitting officers above the rank of joint secretary to be appointed to the tribunals. It held that non-judicial/technical members of the NCLT and NCLAT should be persons above the rank of Additional Secretary in the service of Government of India..Additional Solicitor General PS Patwalia appeared for the Centre in the matter..Rajiv Gandhi killers: State government cannot unilaterally decide.This came as a major victory for Solicitor General Ranjit Kumar and team as the Court held that the Tamil Nadu government cannot unilaterally decide on the remission of sentence in cases where the investigation was carried out by Central agencies..The judgment was pronounced by a Constitution Bench of Chief Justice HL Dattu, FML Kalifulla, PC Ghose, AM Sapre and UU Lalit JJ. in the case pertaining to release of convicts in the Rajiv Gandhi assassination case..Aadhar: Interim [but not final] victory for AG.This was another case which caught a lot of media attention, thanks to certain allegedly controversial submissions made by Attorney General Mukul Rohatgi. Rohatgi had argued that the right to privacy as a fundamental right is still unsettled in law and that the judgments in Kharak Singh v. State of UP and MP Sharma v. Satish Sharma categorically lay down that right to privacy is not a fundamental right and the said judgments have not been overruled..He argued that the case should be heard by a larger Bench and his prayer was allowed. Things did not end there. The case then came up for hearing before a Constitution Bench presided by then Chief Justice HL Dattu and in an interim victory for the Centre, the Court extended voluntary use of Aadhar for MNREGA scheme, Pradhan Mantri Jan Dhan Yojna, Provident Fund scheme and Pension scheme..The case has not yet been finally decided but the interim orders can definitely be counted as a ‘victory’ for Attorney General Mukul Rohatgi..***.Besides the above cases, there are quite a few cases which are either pending or reserved for judgment. Constitutionality of criminal defamation provisions, call drops regulations, Italian marines case etc. are some such cases. With the law officers set to complete two years at the office, things sure are bound to get interesting..Main image taken from here.