DailyPost 2529
GOVERNMENT’S LEGAL BATTLE – AN AFTER THOUGHT
Government is the biggest litigant in the country. What is the nature of governance that makes it one fighting party, literally fighting against all others, in a variety of litigations for varying durations. Sometimes decades together. The only learning point which comes out from the present state of affairs is that the governments and governmental machinery is least bothered about the cases. How does it negatively impact them? Win or lose they are winner. The other party for sure suffers. Today we are not talking about the countless legal battles all over, but decisions which have been more impact making.
These decisions can be termed as policy decisions. Such decisions it is presumed would have gone through a razor-sharp legal eagles’ eye. The lawyer who finally represent the case in case of decision being challenged in court, are also available to the government when the decision is being taken. Are they consulted upon or is it a mechanical drill where they have to give their concurrence? Given the nature of legislative debates during the course of statutes being passed, it provides clarity to the nature of involvement they would be having in understanding the nuances of the legal angle in taking a decision on not?
Constitutional validity is what is talked in case of major decisions. Government at the centre or in the states have all the resources to get the best of constitutional brains to be nearly sure of the legal validity of the decisions. Leaving aside other major cases, today we have regular sitting of constitutional bench, hearing cases on a regular basis. Many a times the stand taken by the government is overturned. No one can ever deny that there can be few frivolous cases but given the nature of maturity the top court of land has, it is nearly sure, that such cases end up in nothing in a short trial.
The crux of the matter is that whether decisions are taken based on the other considerations; political or otherwise and then it left to the bureaucrats and government’s legal brains to weave legality out of it. The legal precision, depth and focus of the Supreme Court has to matched during the course of deliberations and documentation of such executive decisions. In major cases we find completely disjointed affidavits, having pains to prove the point. Facts and data with most minimal analysis was missing in a major case sometime back. There are times when the government lawyers find it to be an uphill task to defend the decision taken by the government. When decisions have to be taken, whatever come may, then legality becomes an afterthought. Whatever has happened has be proven legally right. It is the task of the government to see to it that hardly any of its decisions reach the court and if it does, it should fail.
EXECUTIVE AS AN ULTIMATE PRACTITIONER OF LAW CANNOT BE A PERPETUAL ERRANT.
Sanjay Sahay
Have a nice evening.