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"The role of the Attorney General is not merely to support the government of the day, but to uphold the Constitution with unwavering fidelity." — Fali S. Nariman
The Attorney General of India, also known as Chief Law Officer is the chief legal advisor to the Government of India and its primary lawyer in the Supreme Court of India. This office holds significant importance in the Indian legal system and governance.
For UPSC aspirants, understanding the role, functions, and importance of the Attorney General is crucial as it forms an integral part of the polity and governance section of the syllabus. This article provides a comprehensive overview of the Attorney General of India, covering different aspects essential for your preparation.
The office of the Attorney General of India is constituted under Article 76 of the Indian Constitution, therefore it is a Constitutional Post. According to this Article:
The President of India appoints the Attorney General.
The Attorney General must be qualified to be appointed as a Judge of the Supreme Court. This means:
the person must be an Indian citizen and
must have either been a judge of a High Court for five years, an advocate of a High Court for ten years, or an eminent jurist in the President's opinion.
The term of office of the Attorney General is not fixed by the Constitution and they hold office at the pleasure of the President. This means that the AGI can be removed from office by the President at any time without needing to cite a specific reason.
He may also quit his office by submitting his resignation to the President. Conventionally, he resigns when the government (council of ministers) resigns or is replaced, as he is appointed on its advice.
The remuneration of the Attorney General of India (AGI) is determined by the President of India and is paid out of the Consolidated Fund of India.
The Attorney General advises the Government of India on legal matters referred to them by the President. This includes interpretation of the Constitution, laws enacted by Parliament, and other legal issues of national importance.
The Attorney General represents the Government of India in the Supreme Court and various High Courts in cases of significant importance. They also have the right to participate in the proceedings of Parliament, though without the right to vote.
The Attorney General performs any other legal duties assigned by the President under Article 143 of the Constitution. This can include tasks like appearing for the government in arbitration proceedings, international disputes, and other forums where the Government of India has a legal interest.
Conducts government litigation: The attorney general is responsible for conducting all government litigation, including both civil and criminal cases.
Issues legal opinions: The Attorney-General is authorized to issue legal opinions on any matter of law. These opinions are binding on the government.
Appoints and manages law officers: The Attorney-General is responsible for appointing and managing all law officers in the government, including the Solicitor General of India and the Additional Solicitors General of India.
Right of Audience: The Attorney General has the right of audience in all courts in India, as well as the right to attend the proceedings of both Houses of Parliament and their joint sittings.
Participation in Parliamentary Proceedings: The Attorney General has the right to speak and to take part in the proceedings of both the houses of Parliament and its committees but without a right to vote.
Not a Government Employee: The Attorney General is not a member of the Cabinet or a government employee. They do not enjoy the status of a minister.
Restrictions on Private Practice: The Attorney General can accept private legal work but cannot advise or hold briefs against the Government of India.
As Fali S. Nariman, a renowned jurist, once said, "The role of the Attorney General is to uphold the Constitution, not to defend the government at all costs."
The Attorney General plays a crucial role in upholding constitutional values and ensuring that the government's actions comply with the law.
They represent the government in legal matters, particularly in the Supreme Court and High Courts, which is essential for the defense of government policies and actions. Nani Palkhivala, a legendary lawyer, highlighted this by stating, "The Attorney General stands as the bridge between the government and the judiciary, ensuring the balance of power."
The Attorney General is often involved in cases that have a significant impact on public interest. They ensure that legal processes are followed and that justice is served, not just in favor of the government but also in the larger interest of society. Soli Sorabjee, a former Attorney General, emphasized, "The Attorney General must serve the public interest, transcending partisan lines."
Facilitator of Constitutional Mechanism
By advising the President and other governmental bodies, the Attorney General ensures the constitutionality of laws and executive actions, thus maintaining the integrity of the Constitution.
M.C. Setalvad was the first Attorney General of India and is remembered for his significant contributions to the Indian legal system. He played a crucial role in the early years of the Republic, advising on the framing of laws and the interpretation of the Constitution.
Landmark Case: A.K. Gopalan v. State of Madras (1950) - In this case, M.C. Setalvad defended the government's preventive detention laws. Although the Supreme Court upheld the laws, this case sparked a broader debate on personal liberty and due process, influencing later constitutional developments.
Niren De served as the Attorney General during a critical period in Indian legal history. He was known for his expertise in constitutional matters and represented the government in significant cases.
Landmark Case: Bank Nationalization Case (1970) - Niren De played a key role in defending the nationalization of major banks in India against legal challenges, which had far-reaching implications for economic policy and governance.
Soli Sorabjee served two terms as the Attorney General of India and is renowned for his deep understanding of constitutional law and human rights.
Contribution to Environmental Jurisprudence: His advocacy extended to environmental protection, contributing significantly to the evolution of environmental jurisprudence in India.
Landmark Cases:
K.K. Venugopal, the former Attorney General, has been involved in several high-profile cases, including those concerning constitutional amendments and fundamental rights.
Landmark Cases:
Although Fali S. Nariman was not the Attorney General, his role as an Additional Solicitor General during the landmark Kesavananda Bharati case (1973) is noteworthy. The case led to the establishment of the Basic Structure Doctrine, which restricts Parliament's power to amend the Constitution. Nariman's arguments helped shape this crucial aspect of constitutional law.
Harish Salve is one of the most prominent lawyers in India, known for his expertise in constitutional, commercial, and international law. He served as the former Solicitor General during a critical phase in Indian jurisprudence.
Landmark Case: Vodafone Tax Case (2012) - Although not Attorney General at the time, Salve's earlier role as a senior advocate laid the groundwork for his involvement in this case, which dealt with taxation laws and had significant implications for foreign investments in India.
The Solicitor General of India assists the Attorney General and acts as the second law officer of the country. Although not explicitly provided for in the Constitution, the Solicitor General's role is crucial:
Functions: Assists the Attorney General in performing legal duties and represents the Government of India in courts.
Appointment: Appointed by the President on the advice of the Attorney General.
Importance: Plays a significant role in advising the government on legal matters and represents the government in important cases.
NOTE - It's a statutory body because there is no mention of a Solicitor general or additional solicitor general in any article of our Indian constitution.
It is a constitutional post created under Article 165 of the Indian Constitution. The AG is the highest law officer in the state and performs duties similar to those of the AGI at the state level. Here are key points regarding the Advocate General:
Appointment: The AG is appointed by the Governor of the State and holds office during the pleasure of the Governor.
Qualifications: Similar to the AGI, the AG must be qualified to be appointed as a Judge of a High Court.
Roles and Responsibilities: The AG advises the State Government on legal matters, represents the State Government in legal proceedings, and performs other legal duties assigned by the Governor or the State Government.
Remuneration: The remuneration of the Advocate General is determined by the Governor and paid from the consolidated fund of the state.
One of the main challenges faced by the Attorney General is maintaining independence and objectivity. Given that the Attorney General is appointed by the government, there are often concerns about impartiality and the influence of political considerations on legal advice.
During the prime membership of Jawaharlal Nehru, a proposal was put forward by the Central Government that the office of the Attorney General be merged with the office of the law minister. It did not materialize.
The dual role of being the government's legal advisor and engaging in private practice can sometimes lead to conflicts of interest. Striking a balance between these roles while maintaining professional integrity is a critical aspect of the Attorney General's responsibilities. Mukul Rohatgi, a former Attorney General, once remarked, "Balancing duty to the Constitution with loyalty to the government is the toughest part of the Attorney General's job."
The Attorney General has been involved in several landmark cases in recent years, including issues related to constitutional amendments, fundamental rights, and major policy decisions of the government. These cases often set important legal precedents and have a long-lasting impact on Indian jurisprudence.
There have been discussions about reforming the office of the Attorney General to ensure greater transparency and independence. Suggestions include fixed tenure, clear guidelines on private practice, and mechanisms to address potential conflicts of interest.
The Attorney General of India is a pivotal figure in the Indian legal and governance system. For UPSC aspirants, a thorough understanding of this office is essential, as it encompasses various aspects of the Indian Constitution, legal framework, and governance. By studying the roles, responsibilities, powers, limitations, and recent developments related to the Attorney General, aspirants can gain a comprehensive insight into this significant constitutional office, which is crucial for both the preliminary and main examinations.
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