The provocation for writing this article is that at this moment, there is a serious onslaught on the functioning of the Central Law Agency Section, which conducts all litigation in the Supreme Court on behalf of different ministries of the Government of India. And this has come from the most unexpected quarters and from no less a person than the Additional Solicitor General (ASG) who resigned and wrote a book My Experience with the office of Additional Solicitor General of India by Bishwajit Bhattacharyya on the subject of handling Supreme Court cases by the Central Law Agency. This agency gets a notice from litigants against ministries, appoints lawyers, gets the files from the ministry and hands them over to a panel lawyer or ASG or SG or AG (Attorney General). They have also got the role of commenting on the merit of the case through law officers.
Further onslaught on the performance of the Central Law Agency in relation to indirect tax has come from the revelation on 5th September 2012 in the Parliament by the Minister of State for Finance that the success rate of indirect tax cases in the Supreme Court is dismal. It was 9.81% in 2008-09, 7.85% in 2009-10, 5.5% in 2010-11 and 10.64% in 2011-12. Add to this the fact that only 2.5% cases were lost in the Supreme Court on grounds of delay. This is revealed by the letter of the Revenue Secretary dated 8.12.2011 to ASG Page 103 of the above book..
The Central Law Agency might say in its defence that after all the merit is handled by the CBEC. That is not correct. There are two types of cases. The first type are those filed by assesses. There, the merit is, the business of CBEC, but before contesting the case the Central Law Agency which works through the ASG and other senior lawyers can certainly help in not contesting cases where the Department has no case. Where, for example, there is an existing decision of the Supreme Court or a binding circular of the CBEC, the case need not be contested. This intelligent part of the work is hardly performed by the Central Law Agency which routinely allocates lawyers to contest every case. Second type of cases are those where the Department files an appeal through the Central Law Agency which is supposed to take opinion of the law officers regarding the advisability of filing appeal on merit. Here, we find that hardly any case is rejected by the Central Law Agency and everywhere the appeal is filed. That explains why Revenue loses 90% of the cases in the Supreme Court on merit. The public perception is that the Revenue is the biggest litigant and is almost a sure loser.
The other function of the Central Law Agency is to conduct litigation. Here, we find that the performance is extremely substandard, as pointed out in detail by the ASG himself in this book. It has been described as arbitrary, inequitable, uneven and non-transparent. Considerable delay is caused in the Central Agency in drafting, typing, giving opinion which often leads to non-filing of counter affidavit on time leading to adverse ad interim order by the Supreme Court. My personal experience had also been the same which is why I believe what the former ASG has written.
The remedy is to have direct relation between ASG/panel lawyers and the CBEC and CBDT, as suggested by ASG. I agree to this fully.
The role of Central Law Agency in relation to Revenue department which accounts for the largest number of cases involving thousands of crores of rupees should be eliminated. It may be allowed to only keep statistical data. The actual litigation must be conducted only by the Department through ASG, SG and AG.
The fiscal deficit being the major concern now, it is essential to eliminate the role of Central Law Agency to enable the CBEC/CBDT to perform better. It will make the CBEC/CBDT more responsible and free from the baggage of unresponsive and unnecessary bureaucratic hurdle and obstacle. This, however, need not be the case for smaller departments such as environment, labour, insurance, banking etc for which the Central Law Agency should continue.