Duty To Assist The Cause Of Justice, Not Just The Client

The two of us came across some interesting comments on social media while discussing the recent (and very pertinent) observations of the Chief Justice of India during the Commonwealth Attorneys and Solicitors General Conference (CASGC), 2024, to the effect that law officers of the State must not just function as representatives of the government but also as officers of the court.

While this aspect of litigation might sound trite to true-blue constitutionalists, especially from functional democracies, it remains hazy to the public at large and even for many officers of the government, all across the world, who see litigation as nothing but an extremely adversarial concept and expect the establishment's law officers only to defend the State at all costs.

But indeed, the duty of a lawyer is to the cause of justice more than her client. The obligation is to assist the court in arriving at a just decision, rather than just sharply singing the tune of the party being represented. Though this applies both to lawyers representing private parties as well as instrumentalities of the State, it assumes greater importance in case of the latter since the government is supposed to be a faceless and nameless entity in perpetuity, irrespective of the political party in power, which should be more concerned with justice, rather than a 'win' within the contours of a courtroom.

It is in this context that Justice Robert H Jackson of the Supreme Court of the United States, who also happened to be a former Attorney General, speaking at his famous 1940 address to the United States Attorneys, underscored that the spirit of fair-paly and decency should animate the federal counsel, adding that a lawyer who risks his name for fair-dealing to build up statistics of success has a “perverted sense of practical values, as well as a defect of character.” He also called upon government lawyers to temper their zeal with human kindness. But the golden words in that lecture shall always remain these-

“Although the government technically loses its case, it has really won if justice has been done.”

This spirit of fairness expected of a counsel is not uncommon in common-law legal systems- both on the civil as well as criminal side. In India, it was captured in beautiful words in Ram Ranjan Roy vs Emperor AIR 1915 Cal 545 by the Calcutta High Court. Later, in Ghirrao vs Emperor AIR 1933 Oudh 265, the Oudh Chief Court outlined the responsibility of a prosecutor by stating- “his duty as a public prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence in possession of the prosecution, whether it be in favour of or against the accused and to leave it to the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged.”

Again, in the context of prosecutors, the Supreme Court of India noted in Shakila Abdul Gafar Khan vs Vasant Raghunath Dhoble 2003 (7) SCC 749 that “it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.”

On the overall fairness expected in litigation by the government, in the case of Urban Improvement Trust, Bikaner vs Mohan Lal 2010 (1) SCC 512, the Supreme Court of India observed that governments and statutory authorities must not raise frivolous and unjust objections or act in a callous or highhanded manner, and must rather act as model or ideal litigants. Citing earlier judgments, the Supreme Court again emphasized that the government must not try to win a case against its own citizens by hook or by crook or to score a technical point or overreach a weaker party

In Canada, in the case of Boucher vs The Queen [1955] SCR 16, where the prosecutor used inflammatory language in his address to the jury, the Supreme Court of Canada stated that the prosecutor's duty “should be done firmly and pressed to its legitimate strength but it must also be done fairly,” adding that it “excludes any notion 'of winning or losing', rather a matter of public duty” and “in civil life there can be none charged with greater personal responsibility, it is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

Of course, as far as the duty of prosecutors is concerned, the guidelines adopted at the 8^th United National Congress on the Prevention of Crime and the Treatment of Offenders, 1990 (Havana Statement) speak of impartial functioning of prosecutors and their duty to act with objectivity, irrespective of whether the position taken is to the advantage or disadvantage of the suspect. These also provide that prosecutors shall not initiate or continue prosecution when an impartial investigation shows the charge to be unfounded.

But even more than the counsel, the sentiment of assistance to the cause of justice is required to be ingrained in government officers dealing with litigation, some of whom view litigants as rivals of the State, and this includes trivial service, employment or pension related matters. By experience, one of us (Navdeep Singh), can say that the prevalence of this attitude is alarmingly high in litigation related to the defence services wherein not only certain officers avoid briefing their own counsel about the true position of law to assist the court in dispensing justice, but also attach too much prestige by getting overinvolved in matters and pressurising the system to 'win' cases. Unaware of how the litigation milieu works, they even express an uncomfortable surprise in regular happenings in courts such as two opposite counsel sharing healthy and hearty relations or informal chitchat over coffee. This attitude had, in fact, prompted the then Defence Minister of India, Mr Manohar Parrikar, to appreciably pass official instructions in 2018 warning officers to take note of the guiding principles that 'litigation be viewed in an impersonal, non-adversarial and dispassionate manner and should not be made a prestige-issue or a win/loss situation.”

Lawyers serving the State, not only prosecutors but also those rendering legal advice to ministries and public bodies, have a general duty to ensure that the affairs of the State are administered in accordance with the law, which includes the principle of moderation in prosecutions. By doing so, it contributes not only to the fairness in judicial proceedings or trials, but in mitigating them in the first place. It might not be as glamorous as a 'win' in a court in the short-term, but is certainly more robust, long-lasting and precious in upholding the Rule of Law and the duty towards the profession and the society, besides reducing the burden of litigation on the State, the exchequer, and ultimately the taxpayer.

The opinions expressed in this publication are those of the authors.

About the authors :

Navdeep Singh

Navdeep Singh is a practising lawyer at the Punjab & Haryana High Court, founder President of the Armed Forces Tribunal Bar Association and a former member of the Committee of Experts constituted by the Government of India to reduce litigation in the Defence Ministry and reform the system of Redressal of Grievances. He is also a Member of the International Society for Military Law and the Law of War, Brussels, International Fellow at the National Institute of Military Justice, Washington DC, and Member of the Advisory Committee on Military Justice of the Commonwealth Secretariat, London.

Dr Pascal Levesque

Dr Levesque has acted as legal counsel for public-sector organizations, including as a military lawyer, public prosecutor and defence lawyer in Canada. He has been a teacher and a university ombudsperson. He currently works in the field of parliamentary ethics and public integrity. He is also a Member of the International Society for Military Law and the Law of War, Brussels, and International Fellow at the National Institute of Military Justice, Washington DC.

Both authors were part of the historic Yale Draft (Principles) on Military Justice, an improvement of the existing United Nations document on the same subject, at a meet at the Yale Law School attended by global jurists and UN representatives. They were also involved in the drafting of the Commonwealth Military Justice Principles (The Stellenbosch Draft) declassified in December 2023.