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A lose-lose battle for state

Being embarrassed in court has become something of a regular occurrence for the state government. The latest instance is Friday's ruling in the James Laine Shivaji biography case, where the Supreme Court's upheld an earlier high court order quashing the state's ban on the controversial book.

mumbai Updated: Jul 11, 2010 02:45 IST
Ketaki Ghoge

Being embarrassed in court has become something of a regular occurrence for the state government.

The latest instance is Friday's ruling in the James Laine Shivaji biography case, where the Supreme Court's upheld an earlier high court order quashing the state's ban on the controversial book.

As protests erupted across the state, with activists demanding that the US author's allegedly defamatory book on the Maratha warrior king be kept out of the state, the government was preparing to fight another high court ruling — against its Best-5 SSC admission norm for Class 10 students.

And just recently, the state was reprimanded by the Centre over the Belgaum border dispute row.

These mounting losses in big-ticket cases — all of them controversial issues close to the average Maharashtrian's heart — are beginning to cause major embarrassment to the government.

Meanwhile, official records show that the state government has lost about 80 per cent of the court cases it has been involved in.

So what's going so wrong with state's legal strategy?

"The government needs to take the effort to get a good legal team in place. And that is only possible if legal appointments — for pleaders and public prosecutors — are done on the basis of merit and not as political and caste favours,” said a former legal advisor to the government.

But it's not just legal strategy that is going wrong. Officials says populist decisions are also being announced without the research and ground work to justify them or carry them through, and sometimes without even the requisite approval from the state's Law & Judiciary Department and advocate general.

In the case of the ban on Laine's biography, for example, the government disregarded legal opinion in favour of populist sentiment.

"If we had not banned the sale of the book and just asked the publishers to remove the allegedly offensive content, it would have worked better," admitted a senior bureaucrat. "In any case, the author and publishers tendered an apology. They would have removed a few paras and matter would have ended there, but our politicians wanted to go to an extreme."

Similarly, a state minister pointed out that in the case of the Best-5 scheme, the Education Department did not seek legal opinion before issuing a Government Resolution.

Another senior lawyer pointed out that the government should perhaps begin by raising the abysmally low fees paid to government pleaders, prosecutors and even the advocate general.

The state government, though, says its legal system is not solely to blame.

"It's not that we don't have legal expertise. Besides the advocate general, we also hire senior counsel for important cases. But, sometimes the state government's stance is supported by public sentiment but is still not ratified by the judiciary," said Law & Judiciary Minister Radhakrishna Vikhe Patil.

He did not dispute the 80 per cent failure rate, though, and said he has set up a committee to look at how this can be reduced.

The committee has also been asked to examine how the state's involvement in smaller disputes can be minimised so the legal team can focus on the bigger cases.

"There is definitely room to strengthen the legal advisory system of the government," agreed Chief Secretary J.P. Dange.