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Attorney General Of India And Advocate General Of State: Provisions & Limitations

March 22, 2024 1292 0

Introduction

The Attorney General of India is the chief legal advisor and advocate to the Government of India. Appointed by the President, the Attorney General of India represents the government in legal matters and provides legal advice to government departments. Similar to the Attorney General of India, the Advocate General represents the state government in legal proceedings and provides legal counsel to government departments. 

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Constitutional Provisions:

Body Attorney General of India Advocate General of State
Article
  • Article 76, Part – V
    • Part of Union Executive
  • Highest law officer in the country
  • Article 165, Part -VI
    • Part of State Executive
  • Highest law officer in the state.
Appointment By President By Governor
Qualification Qualified to be Judge of SC i.e.

  • Citizen of India
  • Must have been a judge of some HC for 5 years or
  • An advocate of some HC for 10 years or
  • An eminent jurist, in the opinion of the president.
 Qualified to be Judge of HC i.e.

  • Citizen of India.
  • Must have been in judicial service of State for 10 years or
  • An advocate of HC for 10 years.
Tenure
  • Not fixed by Constitution 
  • Holds office during the pleasure of the President.
  • Not fixed by Constitution 
  • Holds office during the pleasure of the Governor.
Salary
  • Not fixed by constitution
  • As President may determine.
  • Not fixed by constitution
  • As Governor may determine.
Resignation
  • To the President.
  • Conventionally, he/she resigns when the government (council of ministers) resigns or is replaced. [UPSC 2022]
  • To the Governor.
  • Conventionally, he/she resigns when the government (council of ministers) resigns or is replaced.
Removal Procedure
  • Term of office is not fixed by the Constitution.
  • The Constitution does not contain the procedure and grounds for his removal.
  • Term of office is not fixed by the Constitution.
  • The Constitution does not contain the procedure and grounds for his removal.
Duties and Functions
  • Advice to the GoI upon legal matters.
  • To appear on behalf of the GoI in all cases in the SC/HC in which the GoI is concerned.
  • Represent the GoI in any reference made by the president to the SC under Art.143 of the Constitution.
  • Advice to state government upon legal matters.
  • Discharges the functions conferred on him by the Constitution or any other law.
  • Perform such other duties of a legal character that are assigned to him by the governor.
Other Aspects
  • The Attorney General of India is not a full-time counsel and does not fall in the category of government servants so he can do his private legal practice.
  • Right of audience in all courts in the territory of India.
  • Right to speak and to take part in the proceedings of Parliament or their joint sitting and any committee of the Parliament of which he is a member, but without a right to vote. [UPSC 2022]
  • He enjoys all the privileges and immunities that are available to a Member of Parliament.
  • Right of audience before any court of law within the state.
  • Right to speak and to take part in the proceedings of the state legislature and any committee of the state legislature of which he is a member but without a right to vote.
  • He enjoys all the privileges and immunities that are available to a Member of State Legislature.
Limitations on the Office of the Attorney General of India

  • He/she should not advise or hold a brief against the GOI.
  • He/she should not defend accused persons in criminal prosecutions without the permission of the GOI.
  • He should not be a director in any company or corporation without the permission of the GOI.
  • He must refrain from advising or representing the GOI in cases where he is called upon to do so.
Solicitor General of India
  • The Solicitor General of India and Additional Solicitor General of India assist the AGI in the fulfillment of his official responsibilities.
  • Only the office of the AG is created by the Constitution.
  • Art.76 does not mention the Solicitor General and Additional Solicitor General.

 

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Conclusion

  • The Attorney General of India and Advocate General of State serve as the principal legal advisors to the central government and state governments, respectively. 
  • They play crucial roles in providing legal counsel, representing their respective governments in legal matters, and upholding the rule of law. 
  • With their expertise and impartiality, they contribute significantly to the administration of justice and the functioning of the legal system at both the national and state levels.

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Related Articles 
Schedules of Indian Constitution Constitution & Constitutionalism
Constitution of India: Sovereignty Directive Principles of State Policy in India
Indian Citizenship Act Union and Territory

 

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