Wednesday, November 24, 2010

The legal eagles

Though the Indian bureaucrat would never admit that he doesn't always know the best, he does have to obtain legal advice sometimes and to engage advocates when the State is the litigant.

Who gives legal advice to the Government of India? Most matters are referred to the Legal Advisers in the Ministry of Law, which is a terribly under-staffed Ministry, housed in dark, cramped, depressing office space. At one point of time, the Ministry's Conveyancing Branch , which vets all, repeat, all the contracts and tenders to which the Government of India is a party, had only 2 officers. I doubt whether any manpower augmentation has since taken place. We do create new posts all the time, but these are in regulatory bodies or enforcement agencies where all the fun is. Who cares about musty old Ministry of Law?

The Ministry's Legal Advisers depend heavily and almost exclusively upon books. Think of the number of laws that have been enacted since Independence, and laws which were enacted before but remain on the statute book. Think of the thousands of amendments that have been carried out.Think of the lakhs of cases that have been decided and have become case law. The Legal Advisers are required to be acquainted with all this massive store house of information, and to keep abreast of developments. 

Do you visualise them seated before their computers, plugged into huge data banks that simplify their task of looking up the law (including amendments and case law) before they give advice? That's a laugh. What you will actually get to see if you step into their offices is the strange sight of the peon being buzzed to unlock the book case, remove the score or so of obstacles such as furniture that's been pushed back because of the paucity of space, and pull out a book or several books, as the case may be, hand it/them to the officer, then wait to put the book(s) back. Obviously, the Government has not chosen to invest in IT applications that would aid and assist the Legal Advisers. There are computers in every room but these are only used as word processors.

Training? Familiarisation with new laws? Exposure to international best practices? Participation in international conferences and workshops? The answer to all these quetions is an emphatic "No". Its as if they were children of a lesser God.

No wonder then that the Legal Advisers  are, by and large, a rather dissatisfied lot. Who can blame them?

When is legal advice sought? All substantive amendments of the law are required to be examined and approved by the Law Ministry. Whenever there is conflict between two or more laws, the matter is referred for legal advice. Sometimes, there are questions of interpretation of law that are referred to the Law Ministry. Of course, all contracts, Notices Inviting Tenders etc are required to be vetted by them.

Given the constraints that our legal advisers are working under, I think they are doing a great job, but we don't always get good advice. That's because we don't want it. What we really want is for the Legal Adviser to endorse the view we have already formed, or to place his stamp of approval on the draft contract or draft notification that's been sent to him.In fact, the endeavour always is to get the file examined by a Law Ministry officer who is either to busy to disagree or is amenable to persuasion and will sooner rather than later endorse the view expressed by the administrative Ministry. So the moment we get to know that the file has been marked to X, not Y, in the Ministry of Law we rush around trying frantically to get that undone.

The reasons are manifold. We don't like to concede that the Legal Adviser knows better than us, at least sometimes. Then, work is always rushed through at the last minute so the luxury of having the proposal scrutinised by the Law Ministry isn't really available. Sometimes, the political bosses have directed a particular course of action so the bureaucrat sees himself with no choice except to get it pushed through in the Law Ministry. Increasingly, the Government is setting up tribunals that provide attractive options for appointments to law officers, so we now see an element of quid pro quo also creeping in.So there we are --matters get referred to the Law Ministry, and are returned either with concurring notes, or rather routine, bland, meaningless observations, and only rarely, good, strong legal advice.

And so we plod along, with laws that could have been better drafted, contracts that needn't have had the loopholes that are later exploited, legal representation in the courts that needs to improve a thousand-fold before it becomes effective. Oh yes! the Government Counsels ---that's another story, deserving a post of its own.

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