The Attorney General: Court’s Supreme Officer

Vaibhav Dwivedi,

Associate Editor,

Legit.



A law officer is an officer of the ‘Court’ and not of the Government. Though their task is to advise the Government on legal matters, there is a greater responsibility upon them of assisting the court in upholding the ‘rule of law’. A law officer’s task is certainly not to toe the Government’s line[i].

The Attorney General for India is the senior-most law officer of the ‘Court’. Constitutionally, A.76 of the Constitution of India deals with the office of the ‘Attorney General for India’. Since the office has a mention in the Constitution, it stands as a constitutional body, unlike the office of the Solicitor General of India, which does not find a mention in the Constitution. Conventionally and as a matter of practice, what applies to the office of the Attorney General, applies to the office of the Solicitor General as well. The President appoints the Attorney General in the exercise of the powers conferred on him under A.76(1) of the Constitution. As a matter of Constitutional requirement, a person for being considered to be appointed as an Attorney General shall be eligible to be appointed as a judge of the Supreme Court of India [A.76(1)].

The Attorney General appears for the Government of India before various courts where the Government of India is involved as a party or otherwise interested[ii] and performs such other duties of legal character as is given to him from time to time by the government or is bestowed upon him by or under the Constitution [A. 76(2)]. He has a ‘right to the audience’ before all courts in India [(A.76 (3)]. Being a law officer like any other, he has a ‘right of pre-audience’ by virtue of Section 23(1) of the Advocate’s Act, 1961. The right to ‘pre-audience’ presupposes the right to ‘audience’. The Attorney General enjoys his office during the pleasure of the President and seeks such remuneration as decided by the President from time to time [(A.76 (4)].

The Attorney General has the privilege of participating in the proceedings of either house of Parliament or of a joint sitting of Parliament or of a Parliamentary Committee of which he may be appointed a member. However, he does not have a right to vote (A. 88). In Britain, the Attorney General is a political person, one who has an inclination towards the party in power. But in India, an Attorney General is appointed only on the basis of his competence in Law, or at least such a practice appears to have been followed for years on paper. Except the right to vote, An Attorney General enjoys all the perks that a Member of Parliament does.

The Attorney General appears for the Government of India when a representation is made by the President to the Supreme Court under A. 143 of the Constitution which is the advisory jurisdiction of the apex court of the land. Being the top law officer of the country, he acts as an administrative head among the law officers for the Central Government inter alia and exercises the incumbent position to distribute cases among the officers that are to be argued.

Section 15 of the Contempt of Courts Act, 1971[iii] has a provision which speaks of initiation of a Criminal Contempt proceeding for Contempt of Court on the motion of the Attorney General for India. This provision in itself throws light of the gravity of importance of the office of the Attorney General in assisting the Court to uphold the Rule of Law.

Rule 8(1) of the Law Officer(Condition of Service) Rules, 1987[iv] restricts the Attorney General or any other law officer from holding briefs for any party before any court except the Government of India, Government of any State, Universities, Government Colleges, Schools, Government aided or managed Hospitals, local authority, Public Service Commission, Port Commissioners, a Government-owned Company, any corporation owned or controlled by the State, anybody or institution in which the Government has a preponderating interest.

References

[i] https://www.theweek.in/news/india/2020/05/30/opinion-tushar-mehta-should-know-his-job-is-not-to-toe-govt-line.html?fbclid=IwAR2by1U-Qh7RKYmk3jf9WvAnSJFCXL3kWGyjp9DSLiHy_3xr0_NeQk16kbw [ii] Rule 5(b) of Law Officer (Condition of Service) Rules, 1987. [iii] http://legislative.gov.in/actsofparliamentfromtheyear/contempt-courts-act-1971 [iv] http://legalaffairs.gov.in/sites/default/files/Service%20Rules_0.pdf

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