The Chief Justice of India’s courtroom on January 24 witnessed an unprecedented showdown between the Solicitor General and the country’s top judge. While arguments are not new in courtrooms, the heated exchange between SG Tushar Mehta and CJI DY Chandrachud was over the duties of a law officer and the supremacy of parliament.
At the centre of the exchange was the 1981 amendment to the Aligarh Muslim University Act, which affirmed its minority status. The Allahabad High Court ruled against the grant of minority status to AMU in 2005. The matter reached the Supreme Court and a seven-judge bench of the Supreme Court started hearing on January 23.
When the SG told the court that he did not agree with the 1981 amendment that restored minority status to AMU, the CJI said, “Parliament is an eternal indestructible body under the Indian Union. Irrespective of which government represents the cause of the Union of India, parliament’s cause is eternal, indivisible and indestructible. We can’t hear the government of India to say that they don’t stand by an amendment to a law by the parliament, you have to stand by it.”
Mehta responded by stating that he was answering a constitutional question before a seven-judge constitution bench and he could choose what is right. The SG said, “As a law officer, it is my right, duty and entitlement to say that this view appears to be correct.”
Chandrachud responded to this by saying, “Mr. Solicitor, this will be radical because a law officer would be then telling us that he doesn’t abide by what parliament has done! Can we hear any organ of the Union government to say that notwithstanding a parliamentary amendment, I don’t accept it.”
The SG then asked the CJI if any law officer would have supported amendments to the Constitution brought in by the government during the internal emergency from 1975 to 1977. To this, Chandrachud said it was parliament that reversed the amendments brought in during the emergency. He stated that a law officer of the government cannot disagree with an act of parliament.
Senior advocate Kapil Sibal, who was present in the court, said that even during the internal emergency, the then attorney general did not disagree with the constitutional amendments. This led to an exchange between the two senior lawyers and came to a close after Chandrachud said it was interfering with the pristine dialogue the court was having during the hearing.
The clash leads to questions about the role and duties of an SG. While the above exchange is a rare instance where a law officer of the government has backed the judgment of the Allahabad HC over an amendment to law, there have been many instances where an SG has disagreed with the government that appointed him. Moneycontrol examines these aspects and cites some instances of disagreements between the SG and the government.
SG’s role and duties
The SG is the second in command to the attorney general of India – the second seniormost law officer of the government. Mehta has been the SG since 2018. He is also the second-longest-serving SG for any government. CK Daphtary served as SG for 13 years from 1950 to 1963, making him the longest-serving SG in India.
Prior to his appointment as SG, Mehta was an additional solicitor general for four years. In all, Mehta has represented the government for almost a decade.
Mehta has successfully handled a series of complex cases including those pertaining to Maratha reservation, same-sex marriage, Article 370, and reservation for economically weaker sections.
As a senior law officer of the government, Mehta is also the go-to lawyer for many state governments and central law enforcement agencies.
The Constitution does not contemplate the post of solicitor general. Article 76 of the Constitution speaks of the role of the attorney general.
However, the Law Officers (Conditions of Service) Rules, 1987, mentions the SG’s duties and responsibilities. An SG is appointed for three years, after which the government can request the incumbent to continue or appoint a new candidate. Mehta’s term has been renewed twice.
According to the rules, the role of an SG is
- to advise the government on legal matters and to perform other duties of a legal character assigned to him by the government.
- to appear in the Supreme Court or in any high court on behalf of the government in cases in which it is concerned as a party or is otherwise interested;
- to represent the government in any reference made by the President to the Supreme Court under Article 143 of the Constitution; and
- to discharge other functions as conferred on a law officer by or under the Constitution or any other law.
The only instance of an SG disagreeing with the government was in the 1980s, when K Parasaran, the lawyer who represented the Hindu side in the Ayodhya case, occupied the post. He had advised the government not to act on the demolition order issued to the Indian Express building as it was not compliant with law.
However, the government under then Prime Minister Indira Gandhi did not accept his opinion. Parasaran chose not to defend the government in court. He went to the extent of offering his resignation if the government forced him to appear in the case. Ultimately, Parasaran did not appear in the case.
In the past, some lawyers have resigned from the SG’s post over differences with the government or the political dispensation. Senior advocate Gopal Subramanium, who was SG from 2009 to 2011, resigned after the government fielded Rohinton Fali Nariman in a telecommunication case.
Nariman, who succeeded Subramanium, also resigned in 2013 over alleged differences with the government.
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