Attorney General of India – Article 76 of Indian Constitution

ATTORNEY GENERAL OF INDIA – ARTICLE 76 OF INDIAN CONSTITUTION

The position of Attorney General of India is dealt under Article 76 of the Indian Constitution is the highest law officer of India. He is the chief advisor to the Government of India who advises the Union Government on legal matters and appears before the Supreme Court of India as the primary lawyer of the Union Government. The Attorney General is distinct from the Union Government and he can appear before any court within the Indian Territory.

Appointment of the Attorney General of India

Attorney General of India is appointed by the President of India on the advice of the Government.

The qualifications required are S/He must be a person who is qualified to be appointed as a judge of the Supreme Court i.e.

  1. S/He should be a citizen of India; and
  2. S/He should have been a judge of some high court for a period of five years or an advocate of some high court for the period of 10 years; or
  3. S/He must be an eminent jurist in the opinion of the President.

Term of Attorney General’s Office

There is no specified tenure or fixed term as such mentioned in the Constitution of India; though

  1. S/He can resign from the office of the Attorney General by submitting the resignation to the President of India;
  2. S/He can be removed by the President of India at any time;
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Duties and Functions of the Attorney General of India

The Attorney General of India is bound by the following duties as such

  1. To advise the Government of India, legal matters pertaining to the governance;
  2. To advise the legal matters which are referred by the President of India;
  3. To discharge functions conferred by the Constitution of India;
  4. To appear representing the Government of India pertaining to legal matters before Supreme Court and High Courts;
  5. To represent the Government of India on matters refereed by the President under Article 143(Power of President to consult the Supreme Court) of the Constitution.
  6. Attorney General is an ex-officio member of Bar Council of India.
  7. Attorney General of India alone has the right to set in motion contempt of court proceedings against a person in Supreme Court of India.

Limitations of the Attorney General of India

  1. S/He cannot hold proceedings, advise or hold a brief against the Government of India.
  2. S/He cannot defend the accused person in criminal prosecutions without prior permission of the Government of India.
  3. S/He does not fall under the ambit of government servants.
  4. S/He cannot accept the offer as a director in any corporation or company without the permission of the Government of India.
  5. S/He has no right to vote in the parliamentary proceedings where can participate in the proceedings.
  6. S/He is not barred from undertaking private practice.
  7. S/He enjoys all the privileges and immunities as that of the Member of Parliament.

The first Attorney General of India was M.C SETAVAD and the 15th and the current Attorney General of India is KK Venugopal.

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Attorney General vs. Solicitor General

  1. The Solicitor General is subordinate to the Attorney General to India and the second highest law officer of India.
  2. The Solicitor General of India is appointed for the period of three years whereas the Attorney General is appointed for an indefinite term and holds office till the pleasure of the President of India.
  3. The post of Solicitor General is merely statutory but the Post of Attorney General of India is a mandatory constitutional post.

Advocate General vs. Attorney General

  1. Attorney General of India is appointed by President of India and belongs to the Central Government whereas the Advocate General is appointed by the Governor and belongs to the Central Government.
  2. Advocate General holds office till the pleasure of Governor of the State whereas the Attorney General holds office till the pleasure of the President of India.
  3. Both the Advocate General and Attorney are constitutional posts.

Political Controversies circled around Attorney General of India

The government in power relies on the Attorney General of India to held and sought after the litigation against the government in complex politico-legal issues being conferred with the duty to represent the Union Government before the Courts. In the process, the Attorney General had found them involved in dilemmas.

  1. In defending the Indira Gandhi’s government preventive detention power under the Maintenance of Internal Security Act during the imposition of emergency in India where the Attorney General Niren De’s statement continues to be a dark mark in the office of Attorney General.
  2. When Ram Jethmalani hold the power as the Law Minister and took a different stand from that of the Government before the Supreme Court on the case of Sri Krishna Commission report, the then Attorney General Sorabjee was heavily criticized for the different contentions from the same Government during the Vajpayee rule.
  3. When Milon Banerjee was the Attorney General of India, he was in good terms with the then law minister H R Bharadwaj where his legal team member was assigned to go to London in order to coordinate with the Crown prosecution service to facilitate with the de-freezing of the Ottovia’s bank account into which the much infamous Bofor’s deal kickback money was accumulated thus stating before the Crown that there were no evidence linked to the kickback money source.
  4. The current Attorney General of India has also faced difficulties in consonance with the NDA led government’s Rafale Deal which was stated to be stolen from the defence ministry by the public servants who were in office either present or past. When the SC asked on what the Government has did so fare in the process of regulation, he clarified that the Government would not take actions against the lawyers or journalists and the photocopies of the original defence documents marked secret were used by the petitioners.
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Conclusion

Attorney General is a crucial post for the Union Government to seek advises and defend them in the legal proceedings has often been not spared for the politicization in concurrence with the Ruling government.

Author: Aathira Pillai,
Dr. D. Y. Patil College of Law, BLS LLB 4th year

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