The Leader of Indian Bar: Changing Horizons of the office of The Attorney-General for India

The Attorney General for India is a constitutional office and is held by a person qualified to be appointed a judge of the Supreme Court. The Attorney General continues in office “during the pleasure of the President,”[Article 76(4)] a dignified phrase that has its medieval origins in the notion of holding office “during good behaviour.” In actual practice it means until the AG enjoys the confidence of the Prime Minister and his Council of Ministers as the country is governed by the Parliamentary form of Government in which the Prime Minister is the real head of the Government and the President is only a constitutional head who is obligated to act on the aid and advice of the Council of Ministers headed by the Prime Minister in the exercise of his powers and functions conferred upon him by the Constitution. The President can only return the advice of the Council of Ministers once for its reconsideration but thereafter he is bound to act on the same. All the decision-making powers are vested in the Council of Ministers including the matters of appointing constitutional and executive functionaries in the Union Government. The A G is also one of them. The present paper deals with the changing horizons of the office of the Attorney-General for India in the light of contemporary developments.

The Attorney General gives advice to the Government of India upon such legal matters as may be referred, and performs such other duties of a legal character as may be assigned, to him by the President from time to time[Article 76(3)]. He also discharges the functions conferred upon him by or under the Constitution or any other law. According to the rules made by the President,[ Notification, 1950, S.C.J. Sec ] the Attorney-General in addition, is required to appear on behalf of the Government of India in all cases in the Supreme Court in which the Government of India is concerned; also, he represents the Government of India in any reference made by the President to the Supreme Court under Article 143. The Government of India may also require him to appear in any High Court in any case in which the Government of India is concerned.

In the performance of his duties, the Attorney-General has the right of audience in all courts in India.  He has the right to take part in proceedings of either House of Parliament, or their joint sitting, and any parliamentary committee of which he may be named as a member, but he does not have a right to vote under this provision(Article 88). He enjoys all the privileges which are available to a Member of Parliament. But he is not active in politics. He is supposed to be apolitical though reality is something different.

In United Kingdom, from where we have borrowed the institution of A G, the appointment of Attorney-General is ‘political’ in nature in the sense that it is conferred on a successful barrister who is a supporter of the party in power. He has sometimes been a member of the Cabinet though “it is generally regarded preferable that he should remain outside the Cabinet as the Government’s chief legal advisor”. O. Hood Phillips observes in this regard as follows:

The better opinion is that Attorney-General should not be in the Cabinet because of his quasi-judicial functions with regard to prosecutions, and also because it is desirable to separate the giving of advice from those who decide whether to act on the advice. Indeed it must be open to question in view of its unfettered discretion to refuse to initiate proceedings and his power to terminate criminal proceedings whether the appointment should be non-political.”

According to the practice followed in India so far, the Attorney-General is appointed on the basis of professional competence and not on political considerations.  He is a non-party man, is appointed because of his competence as a lawyer and he is not a member of the Cabinet. But it is beyond doubt that unofficially he holds political affiliations. In creating the office of the Attorney-General for India, the Founding Fathers sought to ensure that the Union Government received legal advice “free from the trammels of political or party associations.” The value of independent advice is enormous because the Government, like everyone else, must obey the Constitution and the law.

The office of the Attorney-General for India has a historical background. A legal adviser of independence and high standing, designated the Advocate General had for long been part of the administrative set up in the Provinces of Madras, Bombay, and Bengal. The Parliamentary law creating this office provided that the Advocate General would be appointed by the King by warrant and would “take on behalf of His Majesty such proceedings as may be taken by His Majesty’s Attorney-General in England.”  In practice the functions of the Advocate General were to advise the Provincial Governments on any legal problem which might be referred to him, to represent the Crown in original civil causes in the High Court to which the Crown was a party and also in any specially important criminal appeals in the High Court. Instances of his power to take such proceedings as might be taken by the Attorney-General in the United Kingdom were his power to enter a nolle prosequi, or to grant a fiat for review of verdict in criminal cases tried by the High Court in its original jurisdiction, and to protect public rights in such matters as public charities and public nuisances(Joint Committee on Indian Constitutional Reform: Report(1934), para 400). The Advocate-General had also certain functions conferred on him under various laws and the Advocate-General of Bengal functioned in addition as the Law Officer of the Government of India.

The Government of India Act, 1935, provided for an Advocate-General for the Centre as well as one for each Governor’s province. Their function was to give advice to the respective Governments on “such legal matters, and perform such other duties of a legal character as may from time to time be refereed or assigned to him.” It was not the intention of the Act that the office of the Advocate-General should, on the analogy of the Law Officers in the United Kingdom, have a political side to it; in fact the main objective was to secure for the Central and Provincial Governments the services of officers not only qualified to give legal advice but also entirely free from the trammels of political or party associations.

The memoranda on the Union and Provincial Constitutions prepared by the Constitutional Advisor, B. N. Rau, in May 1947, proposed to continue this practice; and accordingly they contained simple provisions in regard to the Advocate-General for the Union and the Advocates-General for the provinces. The relevant paragraphs of these memoranda provided for the appointment of persons, qualified to be judges of the Supreme Court or, in the Provinces, of High Courts, to give advice on legal matters that might be referred to them(Memorandum on the Union Constitution, May 30, 1947, clause 14; and Memorandum on the Provincial Constitution, May 30, 1947, clause 14).

The Union Constitution Committee and the Provincial Constitution Committee, at their meetings held separately during June 1947, accepted these clauses. The Provincial Constitution Committee, however, suggested that the Advocate-General for a Province should resign with the ministry by which he was appointed(Union Constitution Committee Minutes, June 30, 1947; Provincial Constitution Committee Minutes, June 8, 1947).

The Constituent Assembly approved the provision recommended by the Provincial Constitution Committee(CAD, Vol. IV, at 663). Later, when the clause recommended by the Union Constitution Committee came up for consideration, it was pointed out that there were three sets of duties which the Advocate-General had to perform-matters refereed to him, duties assigned to him and statutory duties under various Acts. Accordingly, the scope of the clause was widened by the addition of two latter categories of functions. Specific provision was also made conferring on him the right of audience in all courts in the Union of India.

The provision for the Provincial Advocate-General made in the Draft Constitution prepared by the Constitutional Advisor was accepted by the Drafting Committee without any change. It read:

• The Governor of each State shall appoint a person who is qualified to be appointed a judge of the High Court to be Advocate-General for the State.
• It shall be the duty of the Advocate-General to give advice to the Government of the State 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 Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
• The Advocate-General shall retire from office upon the resignation of the Chief Minister in the State, but he may continue in office until his successor is appointed or he is reappointed.
• The Advocate-General shall receive such remuneration as the Governor may determine.

The corresponding provisions regarding the Advocate-General for the Federation were, however, amended. The designation “Attorney-General for India” was adopted for this functionary to distinguish him from the Advocates-General in the United Kingdom and the United States of America. The draft finally approved by the Committee read:

63.(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.

When these articles came up for discussion before the Assembly, P. K. Sen urged that the Attorney-General and the Advocate-General should be members of the Council of Ministers. The office of the Advocate-General of a Province, as it then existed, he argued, nothing more than a bureau of legal advice whose opinion was often treated with scant courtesy by the Government. The Advocate-General’s position should be much higher and this could be done only if he had the status of a Minister. He favoured the Advocate-General of a State being also its Law Minister in order that he could maintain a high level in the legislative and executive structure of the Government by regulating, shaping and moulding policy in regard to legislation in all respects.( CAD, Vol. VIII, at 526-27).

Two amendments were moved by Naziruddin Ahmed: first, he suggested that the Attorney-General should retire from office on the resignation of the Prime Minister. He argued that the provisions governing the office of the Attorney-General for India and of the Advocates-General for the States should be the same; and since the Advocate-General of a State was required to retire from his office on the resignation of the Chief Minister of the State, the same principle should apply to the Attorney-General as well. He sought support for the view from the position in the United Kingdom where the Attorney-General was a member of the Ministry and had to retire from office with the Ministry(CAD, Vol.VII, at 1348). But when the articles about the Advocates-General came up for discussion, Naziruddin Ahmed moved an amendment for the deletion of the provision that the Advocate-General of a State should retire from office upon the resignation of the Chief Minister and suggested that his tenure, corresponding to that of the Attorney-General, would be during the pleasure of the Governor. This latter amendment was accepted by Dr. Ambedkar(CAD, Vol. VIII, at 524-25).

By another amendment Naziruddin Ahmed proposed the addition of a new clause to enable the Advocate-General of a State to appear on behalf of his State, not only in all courts of the State but also in other courts within the territory of India, including the Supreme Court. The amendment was opposed by K. M. Munshi who saw no ground for equating the position of the Advocate-General for a State with that of the Attorney-General for India. The latter was really an Advocate-General functioning throughout India who had to go to any court in the country in order to appear for the Government of India, while the former was meant for his particular State and could have no locus standi as Advocate-General in any State other than his own.

This is a matter of fact that the A G is not required to be a political man but in actual practice the politics plays an important role in his selection. The A G is supposed to be an unbiased and objective man who defends the Government in the courts of law and is also recognized as a leader of the Bar. His paramount duty is to preserve the public interest. He is the guardian of the state interests in judicial process. The first A G M. C. Setalvad was a man of high legal acumen who held this office for more than 10 years and represented the Government in high profile cases which determined the constitutional destiny of the nation. Even in states, we had Advocates-General such as H. M. Seervai who made a great contribution to the legal profession. Mr. Seervai believed that a law officer should be committed to the cause of justice and not to the philosophy of Government. He condemned the notion of law officers “committed to the philosophy of the Government” as an “aberrant doctrine” that was: (a) unconstitutional and (b) opposed to the organization of the Bar. The Attorney General is expected not only to offer legal advice to the government but also act independently of it, where required. This is because by the nature of his duties, the Attorney General is the guardian of the public interest. But nowadays we do not have such men of high caliber and integrity.

The first AG, M.C. Setalvad, led by example in this regard when he appeared before the Chief Justice M.C. Chagla Commission inquiring into the Mundhra scandal in 1958. His severe comments on the conduct of then Finance Minister, T.T. Krishnamachari, and Chagla’s report itself led to the latter’s resignation. In the wake of the Commission’s report, one Member of Parliament criticized Mr. Setalvad’s independence: “The Attorney-General whom we sent to defend our case, became the prosecutor of the Finance Minister and, incidentally, of the Government.” Can we imagine such stand can be taken by the law officers of present generation?

Mr. Setalvad was a bold lawyer who set up fine precedents for the future generations. He was a scholar of high international repute. The life and mission of Mr. M.C. Setalvad contributed much in shaping the profession of law and other legal institutions in the independent India. He was a prolific writer and wrote several books. His books ‘War and Civil Liberties’, ‘Justice for the Common Man’, ‘Law and Culture’, ‘The Role of the United Nations in the Maintenance of World Peace’, ‘The Indian Constitution’ and several other books show his breadth and depth of vast knowledge and expertise in the field of law and other aspects of human life. He is probably the only Indian who was invited to give the Hamlyn Law Lecture – a prestigious lecture series in the United Kingdom. After he delivered the Hamlyn Law Lecture at London on October 17, 1960, the Times reported that: - “The powers of the courts in India in controlling arbitrary action by the administration were more far-reaching than in England, and perhaps he invoked at lesser cost and with greater expedition.” Do we not need such great man today who can enhance the prestige of the legal profession not only in our country but across the globe?

Setalvad’s autobiography – “My Life, Law and Other Things” – published in 1970 is a book which gives insight into information of various incidents that had happened right from 1919 to 1969. The legal philosophy developed by him was special relevance and must attract special attention in the era of globalization. Mr. M.C. Setalvad was born on the 12th November, 1884 in Ahmedabad and his early education was there. Later his father shifted to Bombay and he was admitted in the Wilson High School. He passed his matriculation examination in 1899 and in 1900 he joined the Elphinstone College in Ahmedabad. He passed his LL.B. examination in 1906. By this time his father had already acquired leading legal practice in the original side of the High Court of Bombay and he joined his father’s chamber. He became the Advocate General of Bombay in 1937 and served in that capacity till 1942. In 1947 he had the rare distinction and responsibility to represent India at the Radcliffe Commission that set out the determination of boundaries for the provinces of Punjab and Bengal, between India and Pakistan. He was also a Member to the delegation to the United Nations General Assembly that represented the issue of Indian inhabitants in South Africa. As is also well known he was appointed as the Attorney General of India after the commencement of the Constitution in 1950 and held that prestigious office for 13 long years.

The first Law Commission was headed by him (1955 to 1958) prepared several important reports and findings on issues such as; Liability of the State in Tort, Parliamentary Legislation relating to Sales Tax, Limitation Act, 1908, On the proposal that High Courts should sit in Benches at different places in a State, British Statutes Applicable to India, Registration Act, 1908, Partnership Act, 1932, Sale of Goods Act, 1930, Specific Relief Act, 1877, Law of Acquisition and Requisitioning of Land, Negotiable Instruments Act, 1881, Income-Tax Act, 1922, Contract Act, 1872, and Reform of Judicial Administration. There is much that we can learn from Sri Setalvad and his writings. They reflect not just his genius but his intellectual and professional honesty. The principles that he followed in his life are as relevant to us today as they were in his time and we cannot afford to bury them under the guise of pragmatism. We only need to look at Mr. Setalvad’s life to know that while following the highest of ethical principles we can still attain the greatest success in the profession.

The Attorney-General is the Chief Legal Advisor of the Government of India. His primary job is to give best legal advice to the Government and also to defend it in the courts of law. The first Attorney-General Mr. Setalvad advised the Government on several key issues during the initial phase which changed the contours of decision-making process in the Government. Soon after the commencement of the Constitution when first President Dr. Rajendra Prasad raised certain queries pertaining to the constitutional position of the President of India, Mr. Setalvad answered them sincerely. President Dr. Rajendra Prasad had some doubts about the Hindu Code Bill, who sent a note to Prime Minister Pandit Jawaharlal Nehru in which he raised generally the question of the President’s powers in respect of his assent to Bills and claimed that in giving assent to legislation, in sending messages to Parliament and in returning Bills to Parliament for reconsideration, the President could act entirely on his own discretion and independently of the Council of Ministers. He also, maintained that the Provisional Parliament did not have the authority to enact legislation affecting fundamental matters because it was indirectly elected and did not consist of the  representatives of the people elected at a general election. As a result of this note the Prime Minister asked Setalvad’s opinion on the whole question of the powers of the President under the Constitution. He went into the matter most carefully and reached the conclusion that the President was, under the Constitution, which had borrowed the British Parliamentary form of Government making the Cabinet collectively responsible to the Parliament, a strictly constitutional head. The Constitution provided that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions”. Having regard to the meaning of the expression ‘aid and advise’ in British constitutional law and practice it meant that the President was bound to act in accordance with the aid and advice tendered to him by the Council of Ministers. Mr. Setalvad referred to a number of authorities in support of his view. He stated that once this theory was accepted it would govern all presidential action except, perhaps, a few situations in which the Council of Ministers would not be capable of advising him by reason, for example, of it not existing when the President was supposed to discharge a particular executive function. He also contested the view put forward by the President that the Provisional Parliament did not represent the people of India because its members had been indirectly elected. He said that it was a continuation of the Constituent Assembly which had enacted the Constitution. It was a lengthy opinion, which, he believed, was circulated to all the States, who were also interested, because in certain matters, the Governor stood in reference to the Council of Ministers in the states in the same position as the President in reference to the Union Government. The view which Mr. Setalvad then took was accepted and has since been acted upon as a matter of convention by the Union Government. The Supreme Court a few years later in a decision by and large endorsed the view that Mr. Setalvad had expressed in his opinion.

There were at least two occasions on which Attorney-General Setalvad was consulted personally by Dr. Rajendra Prasad in regard to the powers of the President. Though, he had, for the time being, given way in the matter of the Hindu Code Bill, he continued to hold the views previously expressed by him. When the Hindu Law Legislation made progress and was ripe for being presented to him for his assent he felt perturbed and wanted to know whether he could, acting in his capacity as President, put forward his opposition to the proposals in the Bill so as to prevent them from being passed by Parliament. In the interview which he had with him he pointed out to him what he thought was the constitutional position of the President. He could, like the British monarch, try and persuade his Ministers and, persuasion coming from so high a quarter would undoubtedly carry great influence as it had done many a time in British constitutional history. But if such persuasion failed, he told him that he was bound to act according to the advice of his Ministers.

The second occasion arose, after Krishna Menon had become the Defence Minister and certain appointments made by him of high military officers had caused considerable dissatisfaction. Dr. Rajendra Prasad sent for him at the Raj Bhavan at Bombay. His question was whether, as President in whom the supreme command of the Defence Forces of the Union was vested, he could send for individual Army officers and elicit information from them. The answer which Mr. Setalvad gave was a firm negative.  He said that the President could, through his Council of Ministers, or through the Defence Minister, send for any member of the armed forces he wished to meet but could only interview him in the presence of the Minister[M. C. Setalvad, My Life, Law and Other Things, 1970, Reprinted 2012, at 172].

So, this was the juristic personality of Mr. Setalvad who advised the high constitutional functionaries on issues of great importance. The opinion which Mr. Setalvad gave to President Dr. Rajendra Prasad was by and large accepted and followed and was also endorsed by the Supreme Court in its judgments. The Attorney-General holds a high stature and is supposed to advise the Government on issues of high importance. He should be thoroughly well-versed in all branches of all so that he could tender an objective advice to the Government. After Setalvad, this office has been held by a number of reputed jurists such as C. K. Daphtary, Niren De, S.V.  Gupte, L.N. Sinha, K. Parasaran, Soli Sorabjee, G. Ramaswamy, Milon K. Banerjee, G. E. Vahanvati and Mukul Rohatgi. By and large, this institution has performed well in our country barring a few instances when the Attorney-General fully toed the line of the Government. During the 1975 Emergency the then Attorney-General Niren De replied to a question by Justice H. R. Khanna that during the Emergency period no right to life was available to the people. Similarly, in 2005, when the UPA Government was planning a possible coalition with Mayawati, Milon K. Banerjee’s opinion absolving Mayawati in the Taj corridor case was ignored by the Supreme Court. In a direct condemnation of the Government which asked the CBI to heed Attorney General Milon Banerjee’s opinion and close the case against Mayawati, the Supreme Court told the agency not to go solely on the AG’s opinion and place all evidence before it.

In 2009, Milon K. Banerjee’s opinion absolving Ottavio Quattrocchi in the Bofors scandal has also been viewed as “devaluing and eroding the Attorney General’s position”.

During the UPA-II Government (2009–2014), the conduct of Attorney General Goolam Vahanvati was criticized in a number of cases. In 2G spectrum scam, he became the first Attorney General in India's history who had to testify as a witness in a corruption case in a trial court. In late April 2013, in Coal-gate scandal, Vahanvati was accused of misrepresenting facts in the top most court of India. Again in the same case, Vahanvati’s role came under scrutiny after allegations of impropriety and coercion emerged from his junior law officer, Harin P. Raval, who resigned from the post of Additional Solicitor General as a result.

In view of the foregoing discussion it is submitted that the office of the Attorney-General is very important in the constitutional scheme of the country. The person who is appointed as an Attorney- General should be highly competent to protect the interests of the state.  As he is the leader of the Bar, he should not follow the directions of the Government blindly which go against the legal profession. He must not be committed to the philosophy of the Government but should be committed to the cause of justice. He is a messenger of Rule of Law, and not of Rule of Men. He should be courageous and should not surrender before the Government as Niren De did in 1975 Emergency. He should have a sense of commitment to the cause of justice, and not to the cause of individuals sitting in power corridors. He should promote rule of law and good governance in a representative government system. He is a defender of the human rights. The Government should also utilize his talent by taking his opinions on key issues which come up before it. For example, recently there is an issue pertaining to the exercise of power by the Lieutenant-Governor of Delhi which has been agitated in the courts of law. The Government did not refer this matter to the Attorney-General for taking his view. It should take the view of Attorney-General on this matter. Besides this, even the President can also consult him on this issue and if he is not satisfied with his view, the matter can be referred to the Supreme Court under Article 143 of the Constitution for its opinion. The Attorney-General can help the President in taking important decisions on several issues such as mercy petitions, use of Article 356 of the Constitution, appointment of judges, appointment of Governors, appointment of Vice-Chancellors etc. The President can rely on his opinion as it is highly authentic as he is guardian of the public interest, defender of the Bar, and a protector of the rule of law. He is not an active politician. His opinion merits serious consideration. The first Attorney-General Mr. M. C. Setalvad is a great example of the effectiveness of the institution of Attorney-General. Let us have people like him in this august office.

Dr. Lokendra Malik is an Advocate at Supreme Court of India and a well known author.