Attorney General Mukul Rohatgi appears for Kerala bar owners; Case adjourned to July 28

Attorney General Mukul Rohatgi today entered appearance for the Kerala bar owners in the appeal filed by them in the Supreme Court of India against the judgment passed by a Division Bench of the Kerala High Court order upholding the state government's liquor policy confining bar licenses only to five star hotels.

He submitted that he had secured special permission from the Union Government to appear for the bar owners in the case.

A Division Bench of the High Court of Kerala, comprising of Justice K T Sankaran and Justice Babu Mathew P Joseph, had upheld the Kerala government's liquor policy framed last year and subsequent amendments restricting the grant of licenses to beer and wine parlours alone. 

Delivering the judgment, the Division Bench had said that there was nothing in the government’s liquor policy to offend fundamental rights or which could be termed arbitrary or irrational.

It had also set aside the ruling of the single judge permitting bars to function in four-star and heritage hotels.

Though the AG submitted that he had obtained special permission from the Union Government, the appearance of the Attorney General on behalf of the bar owners has raised eyebrows in some sections of the Bar as they are of the opinion that the Attorney General should not have appeared for a private litigant.

The appearance of the AG on behalf of the Bar owners who are private litigants may at first blush, seem to go against Rule 8 of the Law Officer (Conditions of Service) Rules, 1987 which imposes certain restrictions on the private practice of the law officers of the Union, the Attorney General included. These Rules have been framed by the Ministry of Law and Justice in exercise of the powers conferred by the proviso to article 309 of the Constitution read with article 76 of the Constitution.

As per Rule 8(1)(a) of the Law Officer (Conditions of Service) Rules, 1987, a law officer is not allowed to hold briefs in any court for any party except the Government of India or the government of a State or any University, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company, any Corporation owned or controlled by the State, any body or institution in which the Government has a preponderating interest.

Thus Rule 8(1)(a) virtually prohibits the law officers of the Union including the Attorney General from appearing for any private litigant.

This is however subject to Rule 10 which enables the Government to relax any provision of the said Rules (Rule 8(1)(a) included) where the Central Government is of the opinion that it is necessary or expedient so to do.

Therefore in view of the submission made by the Attorney General that he had obtained special permission from the Union Government, it can be reckoned that the Union Government had relaxed the application of Rule 8(1) (a) in the instant case to enable the AG to appear for the Kerala bar owners.

Despite the power of the Government to relax the provisions of the said Rules in appropriate cases, it is pertinent to note that only last year the Union Government had asked law officers, including the Attorney General and Solicitor General to refrain from taking up private legal cases, as it would dilute their focus from the government litigations.

In a letter to the law officers, the law ministry has said permission for taking up private cases could be sought only in "compelling" situation as their primary role is to defend the government in courts.

The law ministry had reminded them of Rule 8(1) of the Law Officers (Condition of Service) Rules, 1987 which clearly states that they cannot "hold briefs in any court for any party except the Government of India and other institutions enumerated therein."

The ministry was in fact re-asserting the directions give by it in similar office memoranda of the years 2011 and 2012.

"In spite of above instructions, requests from law officers seeking permission to appear in private cases are being received in routine manner. Sometimes, the number of requests is so large that it tends to take away sizable amount of time of law officers in private matters and in the process, their prime attention in government cases suffers," read the memorandum issued by Law Secretary P K Malhotra last year.

It asked the law officers to "restrain" from seeking permission to appear in private cases and said such requests in future should only be made for "compelling reasons and in exceptional circumstances.

In view of the above letter, it is baffling that the Union Government has gone back on its stated position and permitted the AG to appear for a private litigant for it is not discernible as to what compelling reason or exceptional reason existed to accord sanction to the AG to appear for bar owners.

The permission granted by the Union Government to the AG on behalf of bar owners seems all the more indefensible given the fact that Article 47 of the Constitution mandates the State to implement prohibition policy.

Therefore, the jury is still out on the propriety-moral, if not legal, of the Attorney General taking up brief on behalf of the private bar owners in their appeal against the liquor policy framed by the State of Kerala.

The case has been adjourned by the Apex Court to July 28 for further consideration.