Mains Practice Questions

Introduction

The Attorney General of India (AGI), provided under Article 76 of the Constitution, is the highest law officer of the country. However, questions about the office’s independence and functional limitations invite critical scrutiny.

Body:

• Constitutional Status:
  • Constitutional Position: Article 76 establishes the AGI as a constitutional authority, unlike the Solicitor General or Additional Solicitors General who are statutory.
  • Qualifications: Must be qualified to be appointed a judge of the Supreme Court.
  • Tenure: Holds office during the pleasure of the President, no fixed tenure is prescribed.
  • Not a Member of Cabinet: Unlike the Attorney General in some countries (e.g., USA, UK), the AGI is not a minister but has certain privileges of participation in Parliament.
• Powers:
  • Legal Advisor to Government: Advises the Union on legal matters referred to by the President (Art. 76(2)).
  • Court Representation: Appears on behalf of the Union in the Supreme Court and High Courts.
  • Parliamentary Role: Enjoys the right of audience in Parliament, though without voting rights (Art. 88).
  • Miscellaneous: To represent 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.
• Limitations:
  • No Executive Authority: Cannot participate in Cabinet decision-making.
  • Dependent on Government Reference: Cannot take up legal matters suo motu.
  • No Fixed Tenure or Removal Process: Complete dependence on the executive undermines independence.
  • Advisory Nature: Government may choose to ignore advice, weakening efficacy.
  • No fixed tenure or constitutional safeguards, holds office during the President’s pleasure.
  • Restrictions on Professional Conduct: He should not advise or hold a brief in cases where he is called to advise or represent the Government of India.
    • He should not defend accused persons in criminal prosecutions without prior permission of the Government of India.

Critical Examination

• Conflict Between Role and Practice: While the AGI’s constitutional mandate is to uphold the rule of law, in practice, the office often functions as the government’s chief defender in courts, thereby limiting its role as an impartial guardian of legality.
• Private Practice & Conflict of Interest: The provision allowing AGI to engage in private practice increases the risk of conflict of interest and dilutes public confidence in the independence of the office.
• Comparative Perspective: In India, the model prioritizes executive trust over institutional independence, with no fixed tenure or security of office.
  • In contrast, the UK Attorney General is bound by the principle that the ultimate client is the law itself, not the government, ensuring greater institutional independence and accountability.

Strengthening the Institutional Role of the Attorney General :

• Ensuring Security of Tenure and Independence: Granting a fixed tenure along with constitutional safeguards can insulate the AGI from executive pressure and strengthen autonomy.
• Regulating Private Practice: Restricting or carefully supervising private legal work would reduce conflicts of interest and enable the AGI to devote full attention to constitutional duties.
• Clear Separation of Roles: The advisory function (legal guardian of the Constitution) and the advocacy role (representing government in litigation) should be better delineated, possibly through a stronger Solicitor General system.
• Code of Conduct and Ethical Guidelines: Adopting a framework similar to the UK Law Officers’ Convention, where primacy is given to law and the Constitution over executive loyalty, would strengthen credibility.
  • India can also learn from comparative models (UK, Canada, CAG in India) for greater autonomy.

Conclusion

The Attorney General of India, embodies a delicate balance between being the government’s advocate and the Constitution’s sentinel. As constitutional expert Fali S. Nariman believed the Attorney General's duty is to uphold the Constitution with "unwavering fidelity," rather than just supporting the government of the day.