AG R Venkataramani justifies Supreme Court absence; former AG Mukul Rohatgi says international arbitration less important

During a recent hearing before the Supreme Court in the Tribunal Reforms Act case, Chief Justice of India BR Gavai made some sharp remarks against the Central government.

The CJI on November 6 expressed serious disapproval of the Central government's request for adjournment of the batch of petitions challenging the constitutional validity of the provisions of Tribunal Reforms Act, 2021.

The government cited the unavailability of Attorney General (AG) R Venkataramani as the reason for seeking adjournment.

CJI Gavai said that the government was trying to avoid the Bench headed by him, since he was only a few days from retirement. The Court also took objection to an application filed by the government seeking reference of the matter to a larger bench.

"We have accommodated you twice already. How many more? If you want it after November 24 (date on which CJI Gavai demits office), tell us then. Very unfair to the Court. Every time you seek accommodation for international arbitration. You have a battery of lawyers and then you file midnight applications seeking reference to larger benches!" the CJI said in court.

In an official press note, the AG clarified that his absence from regular court work was due to his engagement in a multi-billion-dollar arbitration involving the Government of India and Reliance. The dispute relates to a production sharing contract for hydrocarbon production, in which the government has alleged breach of the public trust doctrine.

The AG's press note stated that given the importance of the matter and its direct bearing on a national asset, he has been personally entrusted with conducting the proceedings and leading the case on behalf of the government.

It further mentioned that the arbitration, pending since 2011, has now reached the stage of final arguments, requiring his continued presence. His involvement in the matter has kept him away from routine court appearances over the past week, it stated.

Former AG Mukul Rohatgi said that an international arbitration, however significant in value, “is a commercial matter, far lower in significance” than a constitutional challenge pending before the Supreme Court.

Rohatgi reflected on the constitutional role of the Attorney General and the importance of foresight in managing overlapping commitments, describing the Court’s unease as “understandable in the circumstances.”

"I personally would never have left a hearing midway to go for an international arbitration. Now, if both are clashing, then one has to take steps in advance so that the clash is removed," he said.

He said that even if the arbitration was a priority, the AG should have informed the Court before hand or made alternative arrangements.

"Either he should have requested the Court a day earlier that he is stuck somewhere else and the Court may have accommodated him. But ditching a Court hearing midway is not done, whether it’s a constitutional matter or any other matter. And if you ditch it, then you must ensure that somebody else will go on and the Court is not inconvenienced. Or you make arrangements in advance. That’s number one," Rohatgi opined.

On whether the Solicitor General or an Additional Solicitor General could have been formally deputed to represent the Union government before the apex court, Rohatgi said,

"He (AG) could have requested the Court two days earlier to exempt him from Friday and keep it on Monday. But if you can’t do that, then you have a battery of lawyers. You can depute somebody to fill in for you and carry on with the matter. What is the problem? And you could even come back in the matter on Monday."

Interestingly, Rohatgi mirrored the Court's observation that the entire episode gave an impression that the government was trying to get the matter adjourned.

"But the government was desperately trying for adjournments in some measure or other, including filing an application at the last moment midway during hearing to desperately try and defer it to a bench of five judges so that the hearing gets delayed. So that’s the background of this case and that is what irked the Court," he said.

The former AG also said that while there is nothing wrong in asking for a larger bench reference mid-hearing, the manner in which it was done in this case gave an impression that it was a delay tactic.

"You can ask for it. It’s not as if you can never ask for it. But the way it was done in this case showed it was really a desperate delay tactic."

Rohatgi also opined that there is nothing wrong in the Court proceeding to hear the matter and that there is no requirement to appoint an amicus curiae.

"You don’t need an amicus when the Government of India has a battery of lawyers. So the Court made it very clear to Aishwarya Bhati, the Additional Solicitor General, that she should carry on. What the Court did was correct. There’s no question of an amicus here," he said.