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Tushar Mehta to represent Jay Amit Shah: What the service rules say about an ASG's role

The Government of India has granted permission to Additional Solicitor-General of India Tushar Mehta to represent Jay Shah, the son of BJP president Amit Shah, in a defamation case against the The Wire. Per Mehta, he is being consulted in the case and may even appear for Jay Shah and the defamation notice issued by Jay Shah's lawyers copied the attorney-general. On Monday, Shah filed a defamation case against The Wire over a report claiming his firm's turnover grew manifold after the party came to power.

At this point, it is important to examine what the Service Rules say about a matter in which an additional solicitor-general is to represent a private individual.

The conditions of service of an additional solicitor-general are determined by the Law Officer (Conditions of Service) Rules, 1987. Unlike the Attorney-General of India, the Solicitor-Generals of India are not constitutional functionaries and are appointed by the Central government via the Cabinet Committee on Appointments. The attorney-general, the solicitor-general and the additional solicitor-general are known as law officers.

 Tushar Mehta to represent Jay Amit Shah: What the service rules say about an ASGs role

File image of Additional Solicitor-General Tushar Mehta. Image courtesy: Amity University

Rule 5 of the Law Officer (Conditions of Service) Rules, 1987 lays out the duties of a law officer:

a) Giving advice to the Government of India and doing other duties of a legal character from time to time.
b) To appear for the Government of India before the Supreme Court and the high courts and represent the Government of India in Presidential References to the Supreme Court under Article 143 of the Constitution.
c) To discharge other functions that are conferred on a law officer under the Constitution or any other law made by Parliament.

Rule 8 of the Law Officer (Conditions of Service) Rules, 1987 provides for the restrictions of practice that happens when a person is appointed as a Law Officer of the Government of India. These are:

a) A bar on holding briefs for any party except the Government of India, a government of a state, governmental bodies like a government university, port trusts, government companies and departmental undertakings.
b) He cannot advise any party against the Government of India or a PSU or in any cases where the officer may be called upon to advise the Government of India or a PSU.
c) He cannot defend any accused in a criminal prosecution without prior permission of the Government of India.
d) He cannot accept any appointment in any company or corporation without the prior permission of the Government of India.
e) He cannot advise any ministry or department of the Government of India, any statutory corporation or any PSU unless there is a reference received through the Ministry of Law and Justice.

These conditions, however, can be waived by the Government of India under Rule 10 of the Law Officer (Conditions of Service) Rules, 1987. The government is empowered under these rules to waive these requirements when it considers that it is necessary or expedient to do so. The requirement is that these reasons be recorded in writing. However, there is a proviso to Rule 10 that states that provisions in Rule 8 shall not be relaxed in any matter where the Government of India or any Central government instrumentality is likely to be affected.

In the case of Shah, the parties involved may include the Registrar of Companies and the Indian Renewable Energy Development Agency Ltd which is an enterprise under the control of the Ministry of New and Renewable Resources. These two are instrumentalities of the State. The outcome of the Shah case could affect these instrumentalities.

Therefore, the reasons recorded in writing while granting permission under Rule 10 become important. The Ministry of Law and Justice should ideally disclose the order granting permission to the general public so that it is kept aware of the government's grounds for granting such permission.

Further, there is also the issue of propriety. In a case such as this, he may have a conflict of interest should any proceedings be launched against Shah by the government. This would mean that he couldn't advise the government on any potential proceeding against Shah arising from The Wire's allegations, as he had already advised him in a case against The Wire. Shah may, of course, waive the conflict.

The proper route in these circumstances would be for Mehta to resign as an additional solicitor-general while he is representing Shah. Once the case is over, he may take the post up again.

Read the full text of the Service Rules here:

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Updated Date: Oct 11, 2017 16:58:53 IST