The Role and Powers of the Attorney General of India: Constitutional Safeguard for Legal Integrity

The Attorney General of India is the chief legal advisor to the government, as defined in Article 76 of the Constitution. Appointed by the President, the Attorney General plays a crucial role in representing the government in legal matters and providing legal advice. This position requires significant legal expertise, with the appointee typically being a former judge or an eminent jurist. The Attorney General ensures that the rule of law is upheld in India’s governance.

The Role and Significance of the Attorney General of India in Upholding Constitutional Law

Appointment ( Article 76(1) )

• • The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India. 

• Specifically, the appointee must be an

• • Indian citizen and
  • Must have served as a judge in a high court for a minimum of five years or
  • Practiced as an advocate in a high court for at least ten years, or
  • Be recognized as an eminent jurist according to the President’s judgment.

Term

• Term of Office: The Constitution does not specify a fixed term of office for the AG, nor does it outline the procedure or grounds for potential removal. 
• Appointment and Dismissal: The AG serves at the pleasure of the President, meaning they can be dismissed at any time. 
• Resignation Process: The AG has the option to resign by submitting their resignation to the President. 
• Tradition of Resignation: Traditionally, the AG tends to resign in tandem with the resignation or replacement of the government (council of ministers) since their appointment is based on the advice of the sitting government.

Salary

• The Constitution does not prescribe a set remuneration for the AG. 
• Instead, he receives the remuneration decided by the President.

Responsibilities and Roles ( Article 76(2) )

Principal Responsibilities of the Attorney General: As the principal legal advisor to the Government of India, the Attorney General (AG) is entrusted with the following responsibilities:

• Legal Advice to the Government: To give advice to the Government of India upon such legal matters, and 
• Additional Duties Assigned by the President: To perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and 
• Functions Under the Constitution: To discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
• Delegated Duties of the Attorney General: Additionally, specific duties have been delegated to the Attorney General by the President, including:
• Representation in Supreme Court: Representing the Government of India in all cases in the Supreme Court where the government is involved.
• Representation in Article 143: Acting as the representative of the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
• Appearance in High Court Cases: Appearing, as required by the Government of India, in any High Court for cases in which the government has a stake.
• Permission for Contempt of Court Petitions: As per Contempt of Courts Act of 1971, if a private citizen takes a petition to the SC regarding Contempt of Court, he has to take the permission of the Attorney General at the central level

Entitlements and Constraints

• Article 76(3): In the execution of his official duties, the Attorney General possesses the right of audience in all courts within the territorial jurisdiction of India. 
• Article 88: Moreover, he is entitled to speak and actively participate in the proceedings of both Houses of Parliament, their joint sessions, and any parliamentary committee of which he is a member, though without the right to vote. 
  • The Attorney General enjoys the same privileges and immunities afforded to a Member of Parliament.
• Status as a Non-Government Servant: He is not a government servant, and hence not debarred from private practice.
• Prohibition Against Conflicting Interests: To prevent complications and conflicts of duty, certain limitations are imposed on the Attorney General:
• Restrictions on Criminal Defense: He is prohibited from advising or representing the Government of India against its interests.
• • Without the permission of the Government of India, he cannot defend accused individuals in criminal prosecutions.
• Approval for Directorships: Acceptance of an appointment as a director in any company or corporation requires the prior approval of the Government of India.
• Conditions for Providing Advice: He is not authorized to provide advice to any ministry, department of the Government of India, statutory organization, or public sector undertaking unless the proposal or reference is received through the Ministry of Law and Justice, Department of Legal Affairs.

Solicitor General

• Role of the Solicitor General and Additional Solicitor General: Apart from the Attorney General (AG), there exist other legal officers within the Government of India, namely, the Solicitor General of India and the Additional Solicitor General of India. 
  • These officers play a supportive role in assisting the AG with the discharge of his official duties. 
• Constitutional Status: It is noteworthy that, while the position of the AG is constitutionally established, as outlined in Article 76, 
  • There is no explicit mention of the Solicitor General and Additional Solicitor General in the same constitutional provision.
• Statutory Framework: The positions and duties of the Solicitor General and Additional Solicitor Generals are governed by the Law Officers (Conditions of Service) Rules, 1987, which distinguishes them as statutory roles rather than constitutional ones. 
• Appointment and Term of the Solicitor General: The Solicitor General, appointed for a three-year term, extends legal advice to the government and is nominated by the Prime Minister-led Appointment Committee of the Cabinet.
• Parliamentary Participation: While the Attorney General possesses the right to partake in parliamentary proceedings without voting privileges, the Solicitor General and Additional Solicitor Generals lack the entitlement to participate in such proceedings.

Conclusion

As a beacon of legal expertise and constitutional integrity, the Indian Attorney General plays a pivotal role in safeguarding India’s legal framework. 

• Their impartial counsel and unwavering commitment to upholding the rule of law are essential for maintaining the balance between executive power and legal principles.

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