“The Attorney-General is the chief legal adviser and lawyer of the Government of India.” Discuss (15 Marks)

Mentor’s comment:

  • The question is a direct one. It requires to role and duties of the Attorney-General of India.
  • In Intro mention Article 76 of the Constitution which provides for the appointment of the Attorney-General.
  • In the body, elaborate on the appointment and the terms of office. Next, explain the roles and functions performed by him in representing the government.
  • Conclude by stressing the need for such post as the government is the biggest litigant in the Indian Courts.

Answer:

Article 76 and 78 deals with the Attorney General of India. The President appoints the Attorney General (AG). The person who is appointed should be qualified to be appointed a judge of the Supreme Court. That means, he should be a judge of some high court for five years or an advocate of some high court for ten years.

Attorney General:

  • He/she must be a person qualified to be appointed as a Judge of the Supreme Court, also must have been a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.
  • The term of office of the Attorney General is not fixed by the Constitution. 
  • Further, the Constitution does not contain the procedure and grounds for his removal. He holds office during the pleasure of the President. 
  • This means that he may be removed by the President at any time.

Attorney General as Chief Legal Advisor and Lawyer of GoI:

  • A law officer implies that the person is a lawyer. The Chief Justice of India is in no way a law officer, as the CJI is the head of the Judiciary as an organ of State, just as the President and the Speaker are heads of the other two organs of State – the Executive and the Legislature.
  • In layman terms, Chief Justice is a Judge and Attorney General is a Lawyer, both have distinct roles to play.
  • The Attorney General of India is the highest law officer of the country and he/she is the chief legal advisor to the GoI. 
  • He is responsible to assist the government in all its legal matters. 
  • He gives advice to the Government of India upon such legal matters, which are referred or assigned to him by the president under Article 143.
  • He performs such other duties of a legal character that are referred or assigned to him by the president.
  • He discharges the functions conferred on him by or under the Constitution or any other law.
  • In the performance of his official duties,
    • He appears on behalf of the government of India in all the cases in the Supreme Court in which the Government of India is concerned.
    • He appears on behalf of the government of India in any reference made by the president to the Supreme Court under Article 143 of the constitution.
    • He appears on behalf of the government of India in any case in a high court in which the Government of India is concerned, if the Government of India requires so.

Following are the Rights of the AG:

  • In the performance of his duties, he has the right of audience in all courts in the territory of India.
  • He has the right to speak or to take part in the proceedings of both the Houses of Parliament and their joint sittings but without a right to vote.
  • He has the right to speak or to take part in the meeting of any committee of the Parliament of which he is named as a member but without a right to vote.
  • He enjoys all the privileges and immunities that are available to a member of parliament.

Below mentioned are the Limitations placed on the Attorney General:

  • He should not advise or hold a brief against the Government of India.
  • He should not defend accused persons in criminal cases without the permission of the government of India.
  • He should not accept an appointment as a director in any company without the permission of the government.

Unlike the Attorney General of the United States, the Attorney General for India does not have any executive authority, but he is a part of the Union executive. Those functions are performed by the Law Minister of India. Also, he is not a government servant and is not debarred from private legal practice. 

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