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The principle of open court may be well accepted, but one cannot easily see the details of what happens before or after a case comes to court. It is like the dark side of the moon. The lady in blindfold perhaps knows more than the commoner with open eyes.
One gets rare glimpses into this ill-lit area only when judges tick off government lawyers in the court; or when they dictate strong remarks about the law ministry’s negligence; or when legal luminaries make spicy disclosures in poorly attended seminars. Another source is autobiographical works by those who have seen the system from the inside but could not blow the whistle earlier. Therefore, a full-blown account of what happens in the law ministry corridors cluttered with tax briefs is a tantalising read, with all the stink of back-stabbing and sleaze.
The account comes from the pen of Bishwajit Bhattacharyya, who recently demitted office as additional solicitor general (indirect taxes) in the Supreme Court. He had plenty of time to write the book, My Experiences with the office of ASG, because he was given little work in the latter part of his three-year term.
In this 400-page book, he has concluded that “there are invisible forces who have been acting against the interest of the government. The challenge to the government mostly comes from within.”
Even as the author describes in detail how the law ministry and its branch in the Supreme Court deal with revenue cases, he writes: “The government is the most neglected and hapless litigant in the country.”
Most of the allegations are well known to those who work in the court premises. Judges have tried to rectify them in vain. Former attorney generals had been tasked with cleaning up the Augean stables. All this has yielded only certain reports and notifications from the ministries. The book says the deficiency in the ministry is “pathological”.
Now some specifics. It is the officials’ practice to hand over bundles of tax briefs either late night at the residence of law officers or even a few minutes before the court assembles. Sometimes there are only dockets and no briefs at all. In some briefs, pages are torn or missing. Counsel is supposed to face judges with such little preparation in complex revenue matters. Dockets are enough for some government lawyers, since they are sufficient evidence to claim fees from the government. On the other side are corporate lawyers who prepare their briefs much earlier, with help from a large team of assistants. The author says that he is ashamed to record certain other practices.
It is an old complaint that the government files appeals long after the deadlines set by the law. Sometimes the period of limitation is exceeded by years. The judges are in a dilemma. If they dismiss the appeals, the government and the people will be the losers since huge amounts are involved. On the other hand, admission of such appeals, “condoning the delay”, will only add to the mandarins’ lethargy. Bhattacharyya lists a number of revenue cases that were time-barred for long periods.
Imposing heavy costs on the government does not even scratch the surface of this problem. Sometimes, the court orders inquiries to find out the person who caused the delay and orders recovery of the amount from that particular bureaucrat. But such instances are rare.
The retired law officer has some harsh remarks about the Central Agency of the law ministry functioning in the Supreme Court compound. Someone at the top earmarks cases arbitrarily for members in the panel of government lawyers. There are no guidelines. In his own case, Bhattacharyya was appointed additional solicitor general in indirect tax matters, but most of the time he was given direct tax cases, which were not his specialty. Small cases are marked to half-a-dozen lawyers with two seniors for no apparent reason. Many lawyers chase briefs from public sector undertakings, as they pay better than the government.
Favouritism and corruption run right down to the messenger from the ministry who brings briefs to the law officer’s official residence. He expects a reward for his work. And if he is denied this patronage, he employs a fascinating cache of tricks. Narrating his experience, Bhattacharyya says, “between the Central Agency and a police station if I have to choose, I may end up choosing the police station.”
He suggests that the role of the Central Agency should be eliminated in revenue matters. The Central Board of Direct Taxes and the Central Board of Excise and Customs should take full control of the litigation and must be made independent and accountable.
Similar suggestions have been made earlier in reports and undertakings given to the court. But they have been sent into oblivion. The challenge before the new law minister, a former Supreme Court lawyer, is to chase those files and implement the recommendations. If he can do that, he can change the leopard’s spots.