HC laments at inability of the standing counsel in providing legal assistance to the court – Calls for proper procedure of appointment
The State Government appoints standing counsels in District Courts, Revenue Courts & various Tribunals without any entrance tests or interviews. The appointments are purely political and whosoever is in the good books of the ruling party gets a chance to be appointed as the standing counsel. As soon as a new government of another party is formed, generally new standing counsels are appointed replacing the earlier ones, irrespective of their performance. Thus, there is no standard appointment criteria for appointment of standing counsels. The knowledge, legal acumen, oratory & legal research skills are generally nowhere considered for appointment for standing counsel.
Before deliberating on the subject, it would be relevant to understand that an advocate who appears before the court is first and foremost an officer of the court and is expected to discharge duties in that capacity.
Advocates have a bounden duty to assist the court in the administration of justice. They are required to present their cases honestly, fairly, and with utmost sincerity. Advocates being officers of the court have a duty to ensure that justice is served and that the truth is brought before the court. They are required not to withhold any material information from the court or mislead the court in any manner. They have a duty to be candid and forthright with the court. They must not misrepresent facts, cite false authorities, or present misleading arguments. Above all, they have a duty to be fully prepared for all court hearings with all necessary documents, evidence, and arguments and be ready to present their case before the court. They are also expected to do thorough research and note down applicable case laws so as to put up their case duly supported by binding case laws. They should also be familiar with the relevant laws, rules, and procedures applicable to their case, and must not cause any delays or adjournments due to their lack of preparation.
It is common knowledge that due to listing of numerous cases, the standing counsels are overburdened and this affects their performance. They do not get enough time to study the matter, muster the facts & research the applicable law. Consequently, they often cut a sorry figure in the court. Their endeavor is to seek adjournments and procrastinate the matters and very often they face the displeasure & criticism of the court.
Recently on January 8, 2024, two cases came up before the Lucknow Bench of the Allahabad High Court. One was Writ – C No. 1188 of 2023 titled Dileep Kumar Dube vs. Addl. Commissioner , Administration 2nd Devipatan Division, Gonda And 2 Others. The Second was Writ – C No. 84 of 2024 titled Mangala vs. State of U.P. Thru. Prin. Secy. Panchayat Raj, Lucknow And Others.
The Court noted with dismay that no assistance had been given by learned Standing Counsel in both the cases.The Court in the case of Mangala (supra) passed the following order:
“12. At this stage, the Court may also observe that no assistance has been rendered by Sri Mukesh Mohan, learned Standing counsel inasmuch as it is only the legal argument that has been raised by the learned counsel for the petitioner to which Sri Mukesh Mohan, learned Standing counsel initially sought time to seek instructions on the legal point or for having the case passed over. The writ petition itself was filed on Friday i.e 05.01.2024 and once only a legal point has been raised consequently, it was for the learned Standing counsel to have studied the matter and to have addressed the Court on the legal point as has been urged by the learned counsel for the petitioner.
13. This Court has repeatedly been observing that despite various opportunities having been given to the learned Standing counsel to address the Court on the legal points the learned Standing counsels have miserably failed to assist the Court on the legal points as are urged. This aspect of the matter cannot be ignored by this Court more particularly when repeatedly time has been granted to the learned Standing counsel to pull up their socks and address the Court on the legal point as are repeatedly being urged by the counsel who appear on behalf of the petitioner. This Court is constrained and pained to observe that no assistance is rendered by thelearned Standing counsels.
14. The Court is compelled to pass this order inasmuch as the entire previous week i.e from 02.01.2024 to 05.01.2024, the learned Standing counsels were warned that in case things are not set right at their end and assistance is not provided by them then the Court may be compelled to pass orders against them. However, it appears that the warning as issued by this Court, as usual have fallen on deaf ears.
15. Considering the aforesaid, let a copy of this order be placed by the office before the Principal Secretary (Law & Remembrancer) and the learned Advocate General within three days, and the views of the Principal Secretary (Law & Remembrancer) and the learned Advocate General as to how this issue of non assistance by the learned Standing counsel is sought to be addressed would be submitted before this Court within two weeks from today by way of filing of a personal affidavit by the Principal Secretary (Law & Remembrancer) containing the views of learned Advocate General also and to be placed before this Court by the next fixed for the said purpose alone which is 24.01.2024 failing which the Court may be compelled to summon the learned Advocate General and the Principal Secretary (Law & Remembrancer).”
The Court in the case of Dileep Kumar Dube (Supra) went further to direct the Principal Secretary (Law) thus:
“9. The Principal Secretary (Law) shall file his personal affidavit indicating as to how such Standing Counsels have been appointed which do not even have the legal acumen or knowledge of relevant case laws having a bearing on the cases being taken up and of informing the Court about judgements which have been passed from time to time by Hon’ble Apex Court and which have got a direct bearing in the matters which are being listed before this Court and as to how the piquant situation is to be addressed.”
Both the orders express utter dismay on the conduct of the standing counsels. Although, the statement of the Court is subjective and cannot be generalized, but it reveals the state of affairs as existing presently in the courts. It calls for urgent action on the part of the government. The government should devise a standard procedure which should include an eligibility test, interviews etc. before appointing standing counsels in all courts. Their performance should also be monitored on a regular basis and their reappointment should only be made on the basis of recommendations of the monitoring committee which should have a panel of retired High Court judges and senior advocates. This will certainly help bring in better equipped and responsible advocates as standing counsels and also help in unclogging the pendency in the Courts.