B S Raghavan

Government as a client before courts of law

B.S.RAGHAVAN | Updated on March 12, 2018

Is the Government — whether at the Centre or in the State — appearing as a client before a court of law through counsel any different from other clients in its rights and obligations, and can it claim any status superior to that of other clients simply because it is the Government?

The question which had hitherto been muted cannot be ducked any more.

In fact, it has come to the fore with full force and even threatens to vitiate India's relations with other countries, all because of the Government's decision to negate the Supreme Court's decision on the Vodafone case by means of a retrospective amendment. In this column, I am not into the contretemps between the Government and the Vodafone.

I am only trying to examine whether there should be any precise criteria that should apply to governments which are clients before courts of law.

The basic, and, one might almost say, inviolate and inviolable, principle of adjudication is that all clients are equal in the eyes of law and the playing field should be level before judicial forums.

This also derives from the immutable postulate of independence of the judiciary. For, if one of the parties to a case assumes powers and uses its authority to set at naught judicial verdicts going against it, then independence of the judiciary loses all meaning.

Unfair advantage

The administration of justice itself is reduced to a mockery by governments, as clients, thumbing its nose at the judiciary whenever they lose a case to turn the tables on the ordinary clients.

It leads to an untenable situation in which governments always call the shots and whenever the verdict goes against it, they nullify it to emerge winners.

The unfair advantage that governments enjoy as clients is evident from the simple to the complex issues coming up before courts.

Take any case in which governments sue or are sued: As one of the parties to the case, they have all the means to spend crores of rupees to fight it right up to the Supreme Court, whereas the other party who may be an ordinary citizen has to meet the enormous expenditure from within his own resources.

In the absence of a mandatory requirement that governments should fully reimburse the expenses incurred, the other client, who is theoretically equal and has won the case to boot, is reduced to a state of penury. This becomes most poignant when he has been implicated in a false case in a spirit of vendetta because he had fallen foul of the government.

DRACONIAN AMENDMENT

Governments, as a party to a case that has gone against them, taking recourse to retrospectively amending the laws to circumvent judicial verdicts is a hoary phenomenon, not confined to India alone.

The tendency manifested itself even in the time of Jawaharlal Nehru, hailed as the builder of democratic institutions.

As early as in 1951, when the High Courts and the Supreme Court declared unconstitutional certain laws relating to abolition of zamindari estates and land reforms, the Government brought in a draconian amendment to the Constitution in the form of Article 31B providing for a special Ninth Schedule and putting all enactments included in it beyond the purview of courts. Originally, the Schedule contained only 13 Acts and Regulations. Nehru called this itself a long list. It now contains 284 Acts which cannot be challenged in any court. Which means the Government has exploited its authority to score over an aggrieved citizen, nullifying the principle of equality before law.

The same thing happened when the adverse verdicts of the Supreme Court quashing as ultra vires of the Constitution the abolition of privy purses to Indian princes and the nationalisation of banks were delivered in 1969: The Government went in for retrospective amendments to get round the quashing by the Supreme Court.

There are also several instances in which governments have gone to the extent of defying the orders of courts, including those of the Supreme Court. A well-known example is the one concerning the release of Cauvery waters.

It is time a charter of accountability of governments as clients before courts of law was drawn up and put on the statute book.

Published on April 26, 2012

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