Law and You > Constitutional Law > Attorney General of India and the Advocate General of a State
The Attorney General of India and the Advocate General of a State play crucial roles in the legal and constitutional framework of India, ensuring the smooth functioning of the judicial system at both the national and state levels. These positions are significant in providing legal counsel and representing the government in court proceedings.
The Attorney General of India is the highest-ranking legal officer in the country, appointed by the President of India under Article 76 of the Indian Constitution. The primary responsibility of the Attorney General is to advise the President and the Government of India on legal matters and represent them in the Supreme Court and other courts. The Attorney General holds office at the pleasure of the President and must be a person qualified to be appointed as a judge of the Supreme Court. On the other hand, the Advocate General of a State is the chief legal advisor to the government of the respective state. Appointed under Article 165 of the Constitution, the Advocate General represents the state government in legal matters before the state courts and provides legal opinions to the state authorities. Both positions ensure the proper interpretation and application of law, maintaining the constitutional order and governance in India.
Attorney General of India
Article 76 of the Indian Constitution under its Part-V deals with the position of Attorney General of India. According to Article 76 of the constitution. ย Attorney General of India is the highest law officer of India. As a chief legal advisor to the government of India, he advises the union government on all legal matters. He also is the primary lawyer representing Union Government in the Supreme Court of India. The Attorney General, like an Advocate General of a State, is not supposed to be a political appointee, in spirit, but this is not the case in practice. Solicitor General of India and Additional Solicitor General of India assist the AG in fulfillment of the official responsibilities. M.C. Setalvad was the first Attorney General of India.
Appointment & Qualifications
Attorney General of India is appointed by the President of India on the advice of the government. The qualifications for appointment are as follows:
- He/She should be a citizen of India.
- He/She should have been a judge of a High Court for 5 years or an advocate of a High Court for 10 years.
- Or, in the opinion of the President, He/She is an eminent jurist.
Term & Removal
The Constitution mentions no specified tenure of Attorney General. He/She can Hold office during the pleasure of the President. The Constitution also does not mention the procedure and ground of his removal. Thus,
- He can be removed by the President at any time
- He can quit by submitting his resignation only to the President
- Since he is appointed by the President on the advice of theย Council of Ministers, conventionally he is removed when the council is dissolved or replaced
Duties & Functions of Attorney General of India:
- Legal Advisor: Whichever legal matters are referred to him/her by the President, he/she advises the Union government upon the same. President keeps on referring him legal matters that suits his interest and Attorney General has to advise on those too.
- Representation in Courts: In any legal case where the government of India is related to, the Attorney General has to appear in the Supreme Court on its behalf. He also appears in the High Court if any case is related to the Government of India.
- Fundamental Rights & Constitutional Issues: He/she assists in cases related to constitutional interpretation and fundamental rights.
- Appears in References by the President: He has to represent the Union Government in any reference made by the president to the Supreme Court under Article 143 of the Constitution.
- Other Legal Duties: Apart from what President refers, he also performs the duties mentioned in the Constitution
Powers of Attorney General of India:โ
- The Attorney General (AG) of India is a part of the Union Executive.ย
- He/She is theย highest law officerย in the country.ย
- He/She has the right to audience in all courts in India.
- He/She can participate and right to speak in Parliamentary proceedings but cannot vote.
- Similar to Member of Parliament, he also enjoys all powers related to immunities and privileges.
- He is not considered as a government servant.
- He/She not a full-time officer; can practice law privately, but should not advise against the government.
Rights & Limitations
To avoid conflict of duty, there are a few limitations that are posted on the Attorney General which he should keep in mind while performing his duties:
- He/She should not advise or hold a brief against the Government of India.
- He/She should not advise or hold a brief in cases in which he is called upon to advise or appear for the Government of India.
- He should not defend accused persons in criminal prosecutions without the permission of the Government of India.
- He/She should not accept appointment as a director in any company or corporation without the permission of the Government of India
Advocate General of a State
The Advocate General (AG) of a State is the highest law officer in a state and performs a role similar to the Attorney General at the state level. Article 165 of the Constitution of India provides for the office of the Advocate General.
Appointment & Qualifications
Advocate General (AG) of a State is appointed by the Governor of the State. ย The qualifications for appointment are as follows:
- He/She should be a citizen of India.
- He/She should be eligible to be appointed as the judge of the High Court; i.e. he must meet one of the following eligibility criteria:
- A barrister having experience of more than 5 years.
- A civil servant with an experience of more than 10 years along with an experience as a servant in Zila Court for at least 3 years.
- A pleader over 10 years in any high court
- He shouldnโt be more than 62 years of age, as is the age qualification for a High Court Judge.
Term and Removal:
- Theย Constitution does not fix the term of Advocate General in India.ย He remains in the office during the pleasure of the Governor.
- Theย Constitution does not contain the procedure and grounds to remove the Advocate General of State.ย Governor can remove him/her at any point in time.
- He/She can resign from the public office by submitting the resignation letter to the state governor.
- Conventionally, when a council of ministers of a state government resigns, the advocate general of state too puts down his papers.
Duties & Functions
The major duties and functions of the Advocate General of State are mentioned below:
- Legal Advisor to the State Government: He/She is responsible to advise the state government on the legal matters that the governor refers to him.
- Represents the State Government in High Court and Supreme Court: In any legal case where the state government is related to, the Advocate General has to appear in the Supreme Court on its behalf. He also appears in the High Court if any case is related to the State.
- Performs legal duties assigned by the Governor: He also has to perform all the duties legal characteristics as are assigned to him by the state governor.
- Constitutional Duties: He is bound by the Constitution for such duties and functions as is mentioned therein or any other constitutional law.
Powers of Advocate General:
- Underย Article 177 of the Constitution, an Advocate General for the State has theย right to speakย and to take part in the proceedings of both the houses of the State legislature or any committee of the State legislature of which he may be named a member,ย but without a right to vote.
- He enjoys all the privileges and immunities that areย available to a member of the State legislature.
- He/She has the right to audience in all courts in the state.
- He/She is not a full-time officer and can engage in private practice.
Differences between Attorney General & Advocate General
| Attorney General | Advocate General |
| Article 76 of the Indian Constitution deals with the Attorney General of India. | Article 165 deals with the office of Advocate General of India. |
| Attorney General of India is the highest law officer of India. | The Advocate General of State is the chief law officer of the state. |
| The legal matters of the union or the central government are referred to the Attorney General of India. | Legal matters of the state are referred to the Advocate General. |
| Appointment is done by the President of India. | Appointment is done by the concerned Governor of the state. |
| Represents Government of India in Supreme Court & High Courts. | Represents State Government in High Court & Supreme Court |
| He has right to audience all the courts in India. | He has right to audience all the courts in the state. |
| He can attend Parliament but cannot vote | He can attend Legislature but cannot vote |
| There is no fixed tenure but serves at Presidentโs pleasure | There is no fixed tenure but serves at Governorโs pleasure |
Conclusion:
In conclusion, the positions of the Attorney General of India and the Advocate General of a State are vital to the legal and constitutional machinery of India. They ensure that the government, both at the central and state levels, operates within the boundaries of law and upholds the rule of law in various judicial matters. The Attorney General, as the chief legal officer of India, plays a critical role in advising the government, representing it in court, and safeguarding the interests of the nation before the Supreme Court. Similarly, the Advocate General serves as the legal advisor for the state government, offering counsel and representation in state courts.
Both positions are integral to maintaining the proper functioning of Indiaโs democratic framework, ensuring that legal advice and representation are provided to the government while upholding constitutional principles. These offices are an embodiment of the system of checks and balances, contributing to the broader goal of justice and accountability within the governance structure. With their independence and expertise, the Attorney General and Advocate General help preserve the integrity of legal processes, ensuring that the rule of law prevails at all levels of government in India.