The Attorney General for India (AG) recently made some statements about the Sabarimala litigation pending before the Supreme Court. Some say that the AG should not have made those statements. Without going into what the AG should or should not have said on the issue, a larger question arises regarding the constitutional institution of the AG, its independence and its relationship with the political executive. Is the AG just another lawyer defending the government before the judiciary or is the institution more than that? Who is, after all, the AG’s client?
Article 76 of the Constitution deals with the AG’s office. It says that the President can appoint a person who is qualified to be a Supreme Court judge as the Attorney-General for India. The AG advises the government on such legal matters as referred or assigned by the President, has the right of audience in all courts in the country, holds office at the pleasure of the President and receives such remuneration as the President determines. The President is generally bound by the “aid and advice” of the Council of Ministers.
Effectively, therefore, the Union Cabinet decides who should be appointed the AG, what matters be referred or assigned to him for legal advice, his remuneration and lastly, whether he should continue to hold office. But can we, on this basis, conclude that the client of the AG is the government? It would have been an easy conclusion to arrive at except for the word “for”. The Constitution does not provide for Attorney General of India. It provides for Attorney General for India. This would seem to indicate that the AG’s client is not the government but rather the people of India.
The government as a legal entity is a complex thing to understand. In theory, we elect our legislators every five years, the political party that wins the most seats in the legislature gets to form the government and continues to hold office as long as it enjoys the confidence of the legislature or until its term ends. But the public offices held by our elected representatives are also offices established by our Constitution. The Union Cabinet is answerable not only to the Parliament but also to the judiciary, and in the ultimate analysis, to the people.
Actions taken by successive Union Cabinets, regardless of their political complexion, have been found unconstitutional and struck down by the courts. To say that every Union Cabinet and Parliament will on its own abide by the Constitution is to ignore James Madison’s advice in Federalist No 51: “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”
Who tells the Union Cabinet that their proposed actions are possibly unconstitutional or at least of suspect constitutionality? Certainly not the Cabinet itself. The Cabinet might agree to do something because of its political desirability or compulsions. The President can refuse to follow the advice of the Cabinet but only once. (Though one of us has written elsewhere that the President is not necessarily bound to follow an unconstitutional advice given by the Cabinet.) So, are we to let the Cabinet and the Parliament do whatever they want and leave the legal aspects to be examined at a later date by the courts? There is no reason to arrive at this dangerous conclusion. Because we have the AG.
In our system, the AG is supposed to discharge the high constitutional office independent of the political executive that appoints him. Many eminent lawyers have discharged this office with great distinction. During the Constituent Assembly debates, K T Shah had moved an amendment to draft Article 63 (that became Article 76) proposing that the salary of the AG be determined by law. Salaries of all ministers as wells as MPs are determined by law. Shah wanted the AG’s salary to be protected by legislation because he wanted to ensure that his salary is not altered to his detriment during the time he holds office. The amendment did not carry, but it gives us food for thought. Perhaps Shah’s amendment was motivated by the experience of the first US Attorney General, Edmond Randolph. Randolph had to sustain a private practice even after being appointed as the AG. He had no clerk, no files, no furniture, and no office space, and was especially unhappy about the low pay. This continued for decades. In fact, Madison’s AG William Pinkney chose his lucrative practice in Baltimore over the AG’s office. In 1859, Edwin Stanton (President James Buchanan’s AG) had a handsome annual practice of $ 40,000 but as AG his annual salary was $ 8,000.
Alexander Hamilton in Federalist No. 79 said, “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” The framers of our Constitution were sensitive to this. They ensured that the salaries of high court and Supreme Court judges can’t be reduced during the term of their offices. Shah wanted a similar protection for the AG. This was at a point of time when it was clearly understood that we will not be following the British system where the AG is a cabinet member. The hidden Hamiltonian logic behind Shah’s amendment indicates that the AG was being envisaged as an independent office.
The AG is “Attorney General for India”, not attorney general for the government of India. In that, the AG is special for he acts “for India” and not the government. There is a constitutional expectation on the AG and other legal officers to exercise independent judgement and provide wise counsel to the government, notwithstanding who appointed them or what advice is being expected from them. This makes the task of the AG very difficult and indeed delicate. The fact that constitutionally the AG has to be as good as a Supreme Court judge clearly demonstrates the framers intent. The AG ought to be a pivotal institution that helps the government act in accordance with the rule of law. In our system, the AG is obliged to speak truth to power and help the government to adhere to the Constitution.
Let us not forget the sage advice of B R Ambedkar: “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.” Our Constitution is one of the finest in the world but we need upright people in high constitutional offices to uphold its promise. The AG is such an office since the Attorney General for India represents the people of India. Professionally speaking, the AG has to be good enough to be appointed a Supreme Court judge and must discharge his office in that spirit.
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