The interesting observations of the Chief Justice of India during the Commonwealth Attorneys & 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 is now more important than ever 'because of the complexity and increased length of litigation in this age.

In his inaugural address, delivered at the Commonwealth Attorneys & Solicitors General Conference (CASGC) 2024, Chief Justice of India D. Y. Chandrachud said executive accountability relies heavily on Law Officers' ethical behavior and responsibility. Elucidating, CJI said that Law Officers - such as the Attorney General for India, the Advocate General of State, the Solicitor General of India, and other Govt Pleaders - function not only as Government representatives but also as Court Officers.

"A crucial aspect of executive accountability rests on the ethical conduct and responsibility of Law Officers, who function not only as representatives of the Government but also as Officers of the Court."

In this regard, he gave an example of a former Attorney General Late Soli Sorabjee, who demonstrated a commitment to Justice by advising the Union when it lacked a valid legal case.

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. It is imperative that Law Officers remain impervious to the politics of the day and conduct themselves with dignity in Court, ensuring the integrity of legal proceedings.

But indeed, the duty of a lawyer is to the 'Cause of Justice' more than his/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 later 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-play 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 as follows;

"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."

Hon'ble Supreme Court of India has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of Justice. In [Dilbagh Rai Jarry Vs Union of India & Ors. 1973 (3) SCC 554] held that:
"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals.

But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.

The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in Court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic National Policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.

Again, in the context of prosecutors, the Hon'ble Supreme Court of India in ["Shakila Abdul Gafar Khan Vs Vasant Raghunath Dhoble & Anr.", 2003 (7) SCC 749] held 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 8th 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 can say that the prevalence of this attitude is alarmingly high in litigation related to the Union Territory of Jammu & Kashmir wherein the bureaucratic lobby not only attach too much prestige by getting over-involved 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.

The Law Officers should not only assist the administration of Justice but also uphold the honor of the legal profession through exemplary conduct from both within and outside the Courtroom. Ethics for Law Officers in legal practice encompass a wide range of principles, each offering valuable insights into decision-making. Virtue ethics, for instance, underscores the importance of cultivating moral character and pursuing excellence in every aspect of legal work. In the context of the Law Officers, this translates into a commitment to integrity, honesty, and professionalism in all endeavours.

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.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]