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Attorney General For India: Roles And Restrictions

Central Government has decided to extend the tenure of Attorney General of India, K.K. Venugopal by another year i.e., 30th June 2022[i]. As we all know, the Attorney General of India is a constitutional position that serves as the country's highest legal authority.

But what does the Attorney General's function include, and what does this constitutional position imply?
Article 76[ii] of the Constitution talks about the post of Attorney General for India and it basically says that the Attorney General is to be appointed by the President of India and as to who can he appoint, the provision says that any person qualified to become a Supreme Court judge can be so appointed.

This brings us to the qualification. As stated in Article 76, the Attorney General can be anyone qualified to serve on the Supreme Court, which basically means they must be an Indian citizen who has served as a judge in a High Court of any Indian state for at least 5 years or as an advocate for at least 10 years or be an eminent jurist in the President's opinion. These are the requirements for becoming a Supreme Court Judge, and they also apply to become an Attorney General.

Attorney General: Central Government's Attorney?

Article 76 of the Constitution of India states that it is the Attorney General's responsibility to provide legal advice to the Government of India. They can also represent the government in any court around the country. K.K. Venugopal, the current Attorney General of India, is representing the central government in a number of important cases, including the constitutional challenge to the repeal of Article 370, the central government's handling of the COVID-19 pandemic, and the case challenging Section 124A of the Indian Penal Code, which criminalises "sedition." K.K. Venugopal is also responsible for successfully defending the central government in the Rafale case in 2018 and in the Constitutional challenge to Aadhar card.

Additionally, Article 88[iii] of the Constitution enables the Attorney General to participate in legislative proceedings as well as the proceedings of any parliamentary committee to which he may be appointed, with the exception that Attorney Generals do not have the power to vote. This is what the Attorney General of India's job includes.

Friends, Philosopher And Guide Of The Court

An Attorney General is a "friend, philosopher, and guide of the court," according to the Supreme Court in "P.N. Duda versus V. P. Shiv Shankar & Others on 15 April 1988."[iv] However, in B.P. Singhal vs Union of India & Anr on 7 May 2010[v], the Supreme Court stated that there is undoubtedly an element of lawyer-client relationship between the Attorney General and the Union Government.

As a result, the Attorney General's office is exempt from the Right to Information Act. What this really implies and boils down to is that, for example, if there is any communication or legal advice between the Attorney General and the Government on any legal matter, such information cannot be required to be disclosed under RTI.

Can Attorney General Represent Private Parties?

The question here arises that can Attorney General represent private parties? Rule 8 of the Law Officer (Conditions of Service) Rules, 1987[vi] bars law officers from representing any party other than the Central Government or the State Government or any University, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), any Corporation owned or controlled by the State, and anybody or institution in which the Government has a preponderating interest.

It also bars them from advising any party against the government of India so if there is litigation involving the government, they cannot advise the other party in that case. Rule 8 also bars them from defending an accused person in a criminal prosecution or accepting any appointment to any office in any company or corporation or even advising any ministry without the reference of the law ministry.

These are the things which Attorney General is barred from doing. But Rule 10 of the Law Officer (Conditions of Service) Rules, 1987 also allows the Central Government to relax these provisions if it thinks it is necessary to do so. Only exceptional condition here being that Rule 8 cannot be relaxed for a matter where the Government of India or any Central Government institution is likely to be affected.

Thus, several law officers including the Attorney General would apply for special permissions to relax this rule from time to time to appear for private parties. But there was also an office memorandum[vii] issued in 2011, 2012, and 2014 claiming that law officers which include the Attorney General as well, have been requesting permissions to appear in private matters in a routine manner and they also said that sometimes the number of requests are so large that it tends to take away a sizable amount of time of the law officer in private matters and their prime attention in government matters suffer.

Thus, these memorandums had asked law officers to restrain themselves from asking for permission to appear in private matters and said that while such requests were not barred, the request should be made for compelling reasons and in exceptional circumstances. But it did not define what the compelling reasons or exceptional circumstances could be. This bit has been a matter of controversy in the past as well.

For example: In 2017, then Additional Solicitor General, Tushar Mehta was granted Government permission to represent Amit Shah's son when he had filed a criminal defamation case against a news website which brought a controversial report about Jay Shah's financial dealings. Tushar Mehta was granted Government permission to represent Jay Shah in that case which led to Rahul Gandhi taking a dig at BJP by calling it a state legal help.

Then Union Minister had to clarify that Tushar Mehta had sought law minister Ravi Shankar Prasad's permission to appear for Jay Shah and that the approval was since granted. The Law Minister also clarified to the media that an Additional Solicitor General can appear in a matter between two parties after taking permission from the authorities. That is what the position is and has been in the past as well when several Attorney Generals, including Mukul Rohatgi, M.C. Setalvad, C.K. Daftari, and Soli Sorabjee have exercised this option and obtained permission from Central Government to represent private parties in different cases.

Is The Extension Of The Tenure Of Attorney General Valid?

Notably, the Constitution does not specify the tenure for the post of Attorney General so the first Attorney General for India, M.C. Setalvad held the post for 13 years. But the Law Officer (Conditions of Service) Rules, 1987 do say that a law officer shall hold the office for a term of three years, and they can be reappointed after this initial three-year period for another term for a maximum of another three years.

Also, their appointment can be terminated by either side, i.e., the Government or the law officer with a three months' notice. For example, K.K. Venugopal was also first appointed as 15th Attorney General of India on 1st July 2017 for a period of three years but when his three-year term ended last year, it was extended by another year now he has been given another extension.

In conclusion, an Attorney General is a friend, philosopher, and guide. But more importantly, he is the topmost lawyer in the country. And with that kind of power, comes the greater responsibility of not only defending any matter of the government inside the courtroom, but the reputation of government in front of the entire country.

End-Notes:
  1. K K Venugopal reappointed as attorney general for a year, The Economic Times, 30th June 2021, https://economictimes.indiatimes.com/news/india/k-k-venugopal-reappointed-as-attorney-general-for-a-year/articleshow/83997638.cms
  2. Article 76 of Constitution of India, page 43. https://legislative.gov.in/sites/default/files/COI_1.pdf
  3. Article 88 of Constitution of India, page 47. https://legislative.gov.in/sites/default/files/COI_1.pdf
  4. P.N. Duda vs V. P. Shiv Shankar & Others on 15 April, 1988, AIR 1208, 1988 SCR (3) 547
  5. B.P.Singhal v. Union of India and another [(2010) 6 SCC. 331
  6. Law Officer (Conditions of Service) Rules, 1987, https://legalaffairs.gov.in/sites/default/files/Service%20Rules_0.pdf
  7. Appearance of law officer in private cases Document, https://legalaffairs.gov.in/sites/default/files/Appearance%20of%20law%20officer%20in%20private%20cases%20Document%20%281%29.pdf

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