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The Attorney General: Agent of the Government or Guardian of Constitutional Integrity?

In this paper I have tried to examine the role of Attorney-general of India, it talks about what are all the roles and duties of attorney general is and what are all the problems exists for this post. It mainly talks about the extent of the role of Attorney-general. It talks about how this office of Attorney-general came into existence and what was its original purpose, and how now this post has now been subjected to political menace. It talks about whether the Attorney-general has to just take up the government cases and represent them or to also consider guarding the public interest.

India is the largest democracy in the world with the longest written constitution as well. The constituent assembly i.e. the authors of the constitution tried their best to draft the constitution in a way that it can show the way to the people for centuries, but as they were also humans and had their own limits. It was humanly impossible to foresee all the problems and draft the constitution according to it. When we feel the constitution is ambiguous in a certain problem, then we turn to judiciary for its interpretation.

When the judiciary interprets any part of the constitution, then it becomes law of the land which extends to the whole India and is binding upon everyone unless the parliament makes a law contrary to it. There has been instances where the law makers i.e the legislature tries to misuse the law according to their whims and fancies and to their convenience. If something has not been elaborated in the constitution then it is the duty of the judiciary to interpret it, to ensure that the government doesn't misuse it, for instance when Ms. Indira Gandhi used the constitution to declare a national emergency just to save her political position when it was threatened.

As we know that all the government's transaction is done under the name of the president which is provided under Article 77 of Indian constitution and whenever there is a dispute due to the business of government and a suit is filed against the government then the president himself cannot appear in the court for it, so the provisions of Article 76 of Indian constitution provides that:
  1. The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General for India.
  2. 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, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
  3. In the performance of his duties the Attorney General shall have right of audience in all courts in the territory of India
  4. The Attorney General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.

The office of attorney has always been in controversy as, the functions of attorney general is not clearly defined in the constitution. The provisions of article 76 of the Indian constitution hints that attorney general is just a legal representative of the government but when we apply the general prudence and examine the role of the government then its main objective is of public good, so as being a legal representative of the government attorney general's main objective should be of guarding of the public interest to restrain public nuisances and prevent excess of power by public bodies.

Literature Review
Attorney general is the legal representative of the government appointed by the president of the country. India is a socialist state whose main objective is societal or public good, all the things done by the government should be directly or indirectly for the public good and for the benefit of its citizens. Basically, attorney general is just like a lawyer hired by a client to represent him/her in the court, but in this case the client is none other than the government.

The Attorney General is the highest law officer of India. Article 76 of the Constitution of India, 1950 provides an advisory role for attorney general to counsel the Government in legal matters. Along with being the primary legal advisor, the attorney general also appears on behalf of the government in the Supreme Court and various other courts as well. In the case of P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC 167, the then Minister of Law, Justice and Company Affairs P. Shiv Shankar had made a speech making fierce allegations to the effect, that the Supreme Court was composed of elements from the elite class, that because they had their `unconcealed sympathy for the haves' they interpreted the expression `compensation' in the manner they did. He submitted, that the Supreme Court held, that the said was an expression of opinion about an institutional pattern.

It was submitted, that even in spite of such serious allegations made, the Court found that the case of proceeding for contempt was not made out. the respondent, Shri P. Shiv Shiv Shanker, who was a former judge of the High Court and was the Minister for Law, Justice and Company Affairs delivered a speech which was said to be contemptuous. A petition was filed by the petitioner P. N. Duda who was an advocate but Court declined to initiate contempt proceedings. It was held that Shri P. Shiv Shanker was not guilty of contempt of Court.

In the above case supreme court made a very important observation that attorney general is a "friend, philosopher, and guide of the court,"[1].

Statement of problem
The post of attorney general is held only by the pleasure of the president which in turn indicates that its main control is within the hands of the council of ministers, by this we can understand that when there is an involvement of legislature in any matter then there's always politics in play. As discussed attorney general should keep in mind public interest while he is doing his duty as attorney general, whether he can do his duty properly when politics is in play or not.

Research question:
  1. Whether there is enough independence for attorney general to pursue public good?
  2. Whether attorney general is free from the control of the cabinet?

Research methodology
The current study is mainly based on data and information gathered from several cases decided by the Supreme Court, websites, journals, etc. Doctrinal method has been used to study and examine this research.

Inception Of The Office Of Attorney-General

Inception Of The Office Of Attorney General In England
England follows the system of monarch and has a long history of it. King is the sovereign and all the governmental work used to happen in his name, he had the control of all the legislature, executive and the judiciary. he could not appear in his own courts in person to plead his case where his interests were concerned. It was necessary that he appoint some qualified person to appear in his behalf. At first it was the practice for the King to appoint an attorney for a particular court or for a particular cause.

But this attorney was more than an ordinary attorney. He was the representative of the President, looking after the interests of the King in the King's own court, who was present in the eyes of the law. The post of attorney general became very prestigious and the office of attorney general grew very rapidly during 16th and 17th century.

Later attorney general was summoned to consult on bills and points of law in the House of lords. And then attorney general started sitting in the House of common. During the constitutional struggles the Attorney General emerged as legal adviser to the President. Attorney general by himself or any of his deputy gave advice to different departments of the government and represented them in courts.

Inception Of The Office Of Attorney General In India
The Indian constituent assembly adopted the Indian constitution on 26th November 1949 and it came into effect from 26th January 1950, but the provisions for Attorney general dates back to the British colonial era, the office of the attorney general was first introduced in the Government of India Act, 1919.

Attorney general was called as advocate general. The provision for the office of Advocate General was in section 114 of the act this provision provided Advocate General's for each of the presidencies in British India. Then later on the Government of India Act, 1935 was enacted.

This act established the position of Advocate General for India. His function was to give advice to the government on legal matters and perform such other duties of a legal counsel as may from time to time given to him. The provision of this section has been substantially incorporated in article 76 of the Indian constitution and the change of name from Advocate General to Attorney General. The constituent assembly believed that the position and functions of the attorney general were so important that they dedicated Article 76 of Indian constitution for it.

Role Of Politics In The Office Of Attorney General

Attorney general is appointed by the president under Article 76 of the Indian constitution, which says that president can appoint any person who is qualified enough to be a supreme court judge as Attorney general. When the term "appointed by president" comes then the doctrine of pleasure comes into effect, The Origin of the pleasure doctrine was discussed in the case of Union of India v. Tuslsiram Patel, that:
"Servants Of The President Hold Their Appointments At The Pleasure Of The President Or Durante Bene Placito (During Good Pleasure Or "During The Pleasure Of The Appointor") As Opposed To An Office Held Dum Bene Se Gesserit ("During Good Conduct"), Called Quadiu Se Bene Gesserit ("As Long As He Shall Behave Himself Well")[2].

The doctrine of pleasure indicates that attorney general has to comply with everything what the president says, which in turn is an indication that attorney general's actions are indirectly influenced by the council of ministers, as we know that president has to act according to aid and advice of council of ministers under Article 74 of the Indian constitution. And even the case of B.P Singhal v. union of India supreme court held that "The President is bound to act in accordance with the advice of the council of ministers"[3]. So we can say that attorney general's actions has to be in accordance to what council of ministers want.

If attorney general's political ideology is not in accordance with that of the ruling party, then the council of ministers and president will lose confidence in him, and it may lead to his removal as well.

In many instances we have seen that the ruling party favors and tries to cover up the mistakes done by their party members, they do it by taking the help of the attorney general, we can see it in the TAJ CORRIDOR case, where the court had ordered registration of FIR against Ms. Mayawati and others when an application filed by amicus curiae Krishan Mahajan and a petition filed by Ajay Agarwal alleged that Crores of rupees were being siphoned out of the Rs 175-crore project, which was yet to receive environmental clearance.

After the CBI completed its investigation, it had sought an opinion of the Attorney general as to whether it should prosecute Mayawati on the basis of evidence gathered by it. But the attorney general advised not to prosecute Mayawati which was shocking to all. The CBI and the investigating officer insisted that they had everything required to prosecute her. But later supreme court ordered to prosecute Mayawati and criticized the attorney general for his "his advice was to kill the case".

This is only one of the many instances where politics has played a role in the attorney general's office, this shows how much political influence is present and how it can become a major hindrance for attorney general to ensuring public good while performing his duty.

The legislative seeks legal advice from attorney general just as a client seeking legal advice from his advocate. In the beginning attorney general just acted as a legal representative for the president but as time progressed, the role of attorney general became wider and wider.

When the role of attorney general evolved, politics entered the office of the attorney general which is leading to obstruction in the duty of attorney general. there is no legislative or constitutional basis for the independence of the Attorney General and that his functions as custodian of the public interest are not clearly defined.

It would certainly help improving this situation if the duties and responsibilities office of the Attorney General is carefully defined and that the independence of the Attorney General in the exercise of such functions be given by way of a statue. Attorney general should act as an overseer of the executive branch. Attorney general should keep an eye on the government and its agencies so that to prevent unlawful prosecutions and abuse of power. Attorney general must keep in mind the public interest and refrain from political loyalty which may deviate him from doing his duty.

Index Of Authority
  • · Article 74 of the Indian constitution
  • · Article 76 of the Indian constitution
  • · Article 77 of the Indian constitution
  • · Section 114 of Government of India Act 1919
  • P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC 167
  • Union of India v. Tuslsiram Patel AIR 1985
  • B.P. Singhal vs Union Of India & Anr AIR 2010 SC 296

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