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UPSC Essentials: One word a day – A-G, the constitutional post

Who is an AG? This constitutional office which is back in news is not only relevant for Prelims but Mains too. Let us also ponder on the question if the AG is just another lawyer defending the government before the judiciary or is the institution more than that? Don't miss the MCQ and Post Read Q&A.

upsc, attorney general, A-G, KK Venugopal, Mukul Rohatgi, one word a day, upsc essentials, upsc current affairs, solicitor general, gs II, polity upsc, sarkari naukri, government jobsMukul Rohatgi has declined the government’s offer to be Attorney General as the term of the incumbent A-G, K K Venugopal, ends on September 30. (File image)

Take a look at the essential concepts, terms, and phenomena from the static and current parts of the UPSC-CSE. The Post Read Q&A will help you to self-evaluate your retention memory after reading the article.

Word: A-G (Attorney General)

Subject: Polity

Relevance: This is one of the most important constitutional post in news. For Prelims, its functions and facts become relevant. Know briefly about other related offices- Solicitor General and Advocate General. Let us go beyond the term most importantly, for Mains GS II, and dig into an interesting analysis for instance to answer- AG is whose counsel really? What was Constitutional Assembly Debate around the post? What is the ethos of Constitution with respect to such posts? etc. 

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Why in news?

—Senior Advocate Mukul Rohatgi has declined the government’s offer to be Attorney General (A-G) for India after “second thoughts”. Rohatgi, who had earlier agreed to take up the position, told The Indian Express on Sunday (September 25) that there was “no specific reason” for changing his mind.

—The term of the incumbent A-G, K K Venugopal, ends on September 30. He is 91 years old, and on his third extension. Venugopal has conveyed to the government that in view of his advanced age, he would not be able to continue after the end of his current term.

—Venugopal was appointed the 15th AG of India in 2017. He succeeded Mukul Rohatgi who was AG from 2014-2017.

Who is the Attorney General for India?

—The Constitution of India places the post of the A-G on a special footing. The A-G is the Government of India’s first law officer, and has the right of audience in all courts of the country. The Attorney General (AG) of India is a part of the Union Executive.

Article 76 of the Constitution provides for the office of AG of India.

Appointment, eligibilty, term of office and duties

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—Appointment and Eligibility: AG is appointed by the President on the advice of the government.

Under Article 76(1), the A-G is appointed by the President from among persons who are “qualified to be appointed a Judge of the Supreme Court”.

Article 76(4) says “the Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.”

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Simply put, A-G must be a person who is qualified to be appointed a judge of the Supreme Court, i.e. He or she must be a citizen of India and 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.

—Term of the Office: Not fixed by the Constitution. Procedures and grounds for the removal of AG are not stated in the Constitution.

A-G holds office during the pleasure of the President (may be removed by the President at any time).

—Duties: Article 76(2) of the Constitution says “it shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President”.

The A-G is also supposed to “discharge the functions conferred on him by or under this Constitution or any other law for the time being in force”.

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Simply put, A-G advices Government of India (GoI) upon such legal matters, which are referred to her/him by the President.

A-G perform such other duties of a legal character that are assigned to her/him by the President.

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A-G appears on behalf of the GoI in all cases in the Supreme Court or in any case in any High Court in which the GoI is concerned.

A-G represents the GoI in any reference made by the President to the Supreme Court under Article 143 (Power of the President to consult the Supreme Court) of the Constitution.

What else you should know about the A-G?

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Under Article 88, the “Attorney-General of India shall have the right to speak in, and otherwise to take part in the proceedings of, either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member”.

However, he or she doesn’t have the right to vote in the House.

Also, the A-G for India is not, like the A-G for England and Wales and the A-G of the United States, a member of the Cabinet.

A-G enjoys all the privileges and immunities that are available to a member of Parliament.

A-G does not fall in the category of government servants. A-G is not debarred from private legal practice.
However, A-G should not advise or hold a brief against the GoI.

The remuneration of the Attorney General of India is not fixed by the Constitution. He receives such remuneration as the President may determine.

The post of the A-G has been occupied by some of the finest jurists in India’s history. The first two incumbents of the post were the legendary M C Setalvad and C K Daphtary.

Soli Sorabjee served as A-G twice, in 1989-90 when V P Singh and Chandra Shekhar were Prime Ministers, and from 1998-2004 under Atal Bihari Vajpayee. Milon K Banerji was also A-G twice, from 1992-96 under P V Narasimha Rao, and from 2004-09 when Manmohan Singh was PM. Mukul Rohatgi was A-G from 2014-17 before Venugopal took over.

Solicitor General of India and Additional Solicitor General of India assist the AG in fulfillment of the official responsibilities. Corresponding Office for Attorney General in the states is Advocate General (Article 165).

Who are Solicitor General and Advocate General?

Solicitor General is the second highest law officer in the country.He is subordinate to the Attorney General of India, the highest law officer and works under him. He also advises the government in legal matters. Solicitor general is appointed for period of three years by Appointment Committee of Cabinet chaired by Prime Minister.

So,unlike the post of Attorney General for India, which is a Constitutional post under Article 76 of the Constitution of India, the posts of the Solicitor General and the Additional Solicitors General are merely statutory.
Currently, the Solicitor General of India is Tushar Mehta.

The Advocate General is appointed by the Governor of the State, who must be a person qualified to be appointed a judge of a High Court. That is, he/she must be a citizen of India and must have held a judicial office for a period of ten years or been an advocate of a high court for ten years. The Constitution does not fix the term of office of the Advocate General and it does not contain the procedure and grounds for his/her removal. The Advocate General holds office during the pleasure of the Governor of the State, which means that he/she may be removed by the Governor at any time.

—Important articles with respect to Advocate General are:

Article 165- Advocate-General of the State

Article 177- Rights of Advocate-General as respects the Houses of State Legislature and its Committee

Article 194- Powers, privileges, and immunities of Advocate- General

Beyond the word for Mains perspective:

Is the government client of the A-G? Whose counsel is A-G really? Is the AG just another lawyer defending the government before the judiciary or is the institution more than that? A larger question arises regarding the constitutional institution of the AG, its independence and its relationship with the political executive. Answering these puzzling questions C Raj Kumar , Khagesh Gautam came up with striking arguments in The Indian Express.

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 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.

The Union Cabinet is answerable not only to the Parliament but also to the judiciary, and in the ultimate analysis, to the people.

Who tells the Union Cabinet that their proposed actions are possibly unconstitutional or at least of suspect constitutionality?

Certainly not the Cabinet itself.

Actions taken by successive Union Cabinets, regardless of their political complexion, have been found unconstitutional and struck down by the courts.

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.

‘AG’ and the Constitutional Assembly Debate

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.

AG and the spirit of 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.

Point to ponder: Is A-G government’s counsel or country’s counsel?

MCQ:

Which of the following statements is not true with respect to the office of A-G?

a) Procedures and grounds for the removal of AG are not stated in the Constitution.

b) The remuneration of the Attorney General of India is not fixed by the Constitution. 

c) Attorney-General of India shall have the right to speak in either house of Parliament.

d) A-G for India is not a member of the cabinet like the A-G for United States.

Answer to the previous MCQ: One word a day – Collegium (a)

Post Read Q&A

Could you recall what you read?

  1. What are the duties of Attorney General and how is he different from S-G?
  2. What was the debate about Attorney General in the Constitutional Assembly?
  3. ‘The AG is “Attorney General for India”, not attorney general for the government of India.’ What does it mean?
First published on: 27-09-2022 at 04:13:31 pm
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