The appointment of the Advocate General (AG) in Punjab has triggered a debate about the constitutional role and powers of the Advocate General in the state administration. As per a well-established constitutional convention and practice, the Chief Minister installs his own man in the office of the Advocate-General because the latter handles significant legal matters of the government. A few days ago, the Governor of Punjab appointed Mr. A. P. S. Deol to the office of the Advocate-General of the State of Punjab, after Atul Nanda’s resignation. Let me elaborate on the constitutional role, duties, and powers of the Advocate-General at some length.
Under the Indian constitutional scheme, Article 165 deals with the office of the Advocate General in a State. This provision corresponds to Article 76 that prescribes the appointment of the Attorney-General for the Union Government. The only difference between these two articles is the absence of clause (3) of Article 76 which gives a right of audience to the Attorney-General in all courts throughout the territory of India. No such right is available to the Advocate-General. For becoming an Advocate-General, a person should be eligible to be a judge of the High Court. But the age limit of 62 years, which is the retirement age of High Court judges, does not apply in the case of the appointment of the Advocate-General. The Governor appoints the Advocate-General on the advice of the Chief Minister, the real head of the government collectively responsible to the Legislative Assembly.
The AG holds his office during the pleasure of the Governor and receives such remuneration as the Governor determines. Admittedly, the AG has no security of tenure, and the Governor can remove him at any time on the advice of the Chief Minister. In other words, the AG is a political appointee who holds his office at the pleasure of the Chief Minister of the state. In the United Kingdom, the Attorney-General is a part of the government and comes in and goes out with it. But in India, the Attorney-General or the Advocate-General are not parts of the government. As a convention, they resign on the resignation of the Cabinet. As per Article 177 of the Constitution, the AG is also entitled to take part, and speak in the proceedings of the State Legislature, but he is not entitled to vote in the legislature.
As mentioned earlier, the Governor appoints the Advocate-General on the advice of the Chief Minister and has no personal say in these kinds of policy decisions. However, the Governor can ask the Chief Minister to reconsider his decision if he finds something objectionable with the AG’s antecedents or eligibility. In addition to this, the appointment of the AG can also be challenged in the Supreme Court/High Courts through quo warranto proceedings as he holds a public office of great constitutional importance. The Advocate-General reports to the elected government and defends it in the courts of law as and when required. The Governor can also seek the opinion of the AG on some constitutional and legal issues by taking the government into confidence.
The principal duty of the AG is to advise the State Government on such legal matters as referred or assigned by the government to him. He defends the government in the courts of law, particularly in the High Court. Sometimes he also appears in the Supreme Court on behalf of the state government. In addition to this, the AG also discharges several other statutory functions such as giving consent to initiate the contempt proceedings and performing certain duties under the Criminal Procedure Act, and the Advocates Act. He is also the leader of the bar and is supposed to protect the collective interests and dignity of the bar. In our country, many eminent lawyers have held this office in several states with great distinction. Some of them have also graced the bench of the Supreme Court.
Notably, there cannot be more than one Advocate-General in a state at a time. However, the state government has the power to appoint other lawyers to defend legal cases of the government in the courts of law, and may also give them any designation, including the designation of Additional Advocate General, Deputy Advocate-General, Assistant Advocate-General, etc. Such lawyers are appointed and their designations are assigned in the exercise of executive powers of the state under Article 162 of the Constitution, not in the exercise of its constitutional power under Article 165. They are not constitutional functionaries. They hold special assignments based on the government’s requirements. Mostly, these kinds of appointments are made because of political patronage and recommendations by politicians. Some states have several Additional Advocate-Generals, Deputy Advocate-Generals, and Assistant Advocate-Generals. For appointing these kinds of law officers, the government does not even consult the Advocate-General. The government exercises full discretion to hire/fire these people. They come by the back door and also go by the same door when their patrons lose power. Thus, such appointments are always temporary, and can be terminated at any time without assigning any cause.
The Advocate General is closely connected to the government and reflects the legal thinking of the government. In some cases, the Supreme Court has also observed that AG’s relationship with the government is essentially that of an advocate and a client about his appearance in the courts and arguing the case before the courts on behalf of the government, and the fees for such matters may be settled between the government and the AG by rules or notifications. Since the AG represents the government in the courts, a statement made by him in the courts binds the government, and if the government does not honour his statements, the AG will have no option but to resign from his office.
Given the above discussion, the Advocate-General holds a very significant position in the State Government, and his opinions matter a great deal. But along with powers also come heavy responsibilities. The states should appoint brilliant lawyers to the office of the AG who could act without fear or favour for protecting the rule of law, constitutionalism, and judicial independence. The AG should not act like a caged parrot. He should not hesitate to speak the truth to his political masters if they exercise powers against the constitutional norms. He is an officer of the court and should be committed to the Constitution and the laws that ensure a controlled government.
