Highest law officer of the state

By
I Bobby Devaiah
20211BBL0012
BBA.LLB, Section 3

SUBMITTED TO
ASST.PROF. MOHAMMED SALEEM

SCHOOL OF LAW, PRESIDENCY UNIVERSITY

BANGALORE
KARNATAKA, INDIA
December 2022

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 TABLE OF CONTENTS

REVIEW OF LITERATURE

INTRODUCTION

RESEARCH QUESTIONS

OBJECTIVES OF RESEARCH

RESEARCH METHODOLOGY

CHAPTER 1

Variances between the Advocate General of the State and The Attorney General of

England

CHAPTER 2

Discretions of the Advocate-General in criminal matter

CHAPTER 3

Powers of the Advocate-General under the Code of Civil Procedure, the Patents and

Designs Act and the Lunacy Act

SUGGESTIONS AND CONCLUSION

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REVIEW OF LITERATURE

LOCUS STANDI OF ADVOCATE-GENERAL TO APPEAL UNDER THE ADVOCATES ACT, 1961 Author(s):
Lakshmi Swaminathan

The decision of the Supreme Court in Adi Pherozshah Gandhi v. H. M. Seervai raises a question about the
standing of the Advocate-General of a state to appeal under section 37 of the Advocates Act of 1961.
The Supreme Court ruled by majority that the Advocate-General was not a "person aggrieved" within the
meaning of the Act and therefore could not file an appeal with the disciplinary committee of the Bar
Council of India. This decision has implications for the ability of the Advocate-General to challenge
decisions made by disciplinary committees and raises questions about the scope of their powers

ADVOCATES-GENERAL IN INDIA Author(s): V. Rama Shenai

The Advocate-General for a state in India is a legal advisor appointed by the Governor of the state. It is
the duty of the Advocate-General to advise the state government on legal matters and to perform other
legal duties as assigned by the Governor or by law. The Advocate-General holds office at the pleasure of
the Governor and receives a salary as determined by the Governor. The position of the Advocate-
General for a state in India is distinct from that of the Attorney-General of England, as the Advocate-
General is not a member of the legislature and does not have the same level of influence. The Advocate-
General in India may also engage in private practice, whereas the Attorney-General in England is not
permitted to do so.

Introduction
The Constitution of India provides for the appointment of an Advocate-General for each state of the
Indian Union. As the term itself indicates, the Advocate-General is the General of Advocates. In other
words, he is the official head of the Bar and the first Law Officer of the state of which he is Advocate-
General. His position is cognate to that of the Attorney-General of England, the Attorney-General of
Ireland, and the Lord Advocate of Scotland with certain variances to be mentioned hereafter. Under
Section 55 of the Government of India Act, 1935, the Advocate-General was first appointed by the
Governor of the province and held his office during his pleasure. The Governor had the discretion to
exercise his powers with respect to the appointment and dismissal of the Advocate-General and to
decide on the remuneration of the Advocate- General. The salary and allowances of the Advocate
general were paid out of the revenues of the province. So, under the Government of India Act, the office
of the Advocate- General had no linking with the political wealth of the provincial government and the
provisions of that Act were so well enacted with a view to safeguarding for the provincial regimes " legal
advice from an officer of Law, not just competent to tender such advice but completely unrestricted
from the constraints of dogmatic or party associations and whose remuneration would not be based on
show of hands."

RESEARCH QUESTIONS

 Whether or not the Advocate-Generals discretion to grant permission can impact the individuals'
ability to seek legal redress for a breach of trust?

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  Whether we can confidently state that the Advocate-General decides any right of the parties in
according or refusing sanction?

OBJECTIVE

 To understand the history and differences of his counterparts.

 Discretions of the Advocate-General in criminal matter.
 The discretion of powers of the Advocate-General under the Code of Civil Procedure, the
Patents and Designs Act and the Lunacy Act.
 Locus standi of Advocate-General to appeal under the advocates act, 1961.

RESEARCH METHODOLOGY

The suggested study is originated on secondary data, gathered from earlier published research
papers, text books, journals and further external sources that report different research questions
associated to the concept of Absolute liability. The research for some of these studies was done
largely while some of these were constructed on secondary data.”
The data gathered for this research is qualitative in nature, and it is intended to re-examine data
sets in order to report the current research question of the locus standi of the Advocate General to
appeal under the Advocates Act. Through a case study of the landmark judgments, it aims to
understand powers conferred on the Advocate-General.

CHAPTER 1

Advocate-General for the state

165 Article – Advocate General for the State.
(1) The Governor of every State shall appoint such person as the Advocate General for the State
who is qualified to be appointed as a Judge of the High Court.
(2) It shall be the duty of the Advocate-General to advise the State Government on such legal
matters and to perform such other duties of legal character as may be assigned or assigned to him
from time to time. Governor, and to discharge the functions conferred on him by or under this
Constitution or any other law for the time being in force.

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(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive
such remuneration as the Governor may determine in the conduct of official business.
Linking and distinction of the position of the Advocate-General of a state with that of the Attorney-
General of England. In England, the Attorney-General is, more frequently than not, a member of the
House of Commons and a member of the Ministry though he need not essentially be a member of the
Cabinet, while in India, the Advocate- General, under the prevailing law, isn’t a member of the
Legislature. As a delegate of the Ministry, the Attorney-General of England exercises substantial impact
over the Ministry and is able to structure legislation according to his views. He shares " in a sense, in the
general duty to Parliament of the administration, as a whole for the legal assistance given to the Crown
". The Advocate-General in a state in India may not be able to exercise the same amount of influence as
the Attorney-Generals in England, for obvious reasons. The Attorney-General in England gets a
remuneration amounting to £ 10,000/- annually. In India, the Advocate-General is not allowed to engage
in private practice. They are allowed to privately practice law alongside their position as Advocate-
General, although the standing guidelines of some states prohibit them from taking cases against the
state. The Attorney-General in England holds the power to act as an adviser, advocate, litigant, and
controller of public litigation. While the Advocate-General in India also performs similar functions, it
should be noted that they do not have the same discretionary powers as the Attorney-General in
England. In matters where the Advocate-General's approval or permission is required, they can assess or
review frivolous litigation. In England, the Attorney-General was exercising quasi-judicial functions in
regards to appeals for the grant of patents under section 11(3) of the Patents, Designs and Trades Marks
Act, 1883. However, except for this limited extent, the determinations made by the Attorney-General are
only administrative in nature, despite some decisions suggesting otherwise. As far as Indian law is
concerned, I have not found any legally conferred judicial or quasi-judicial powers on the Advocate-
General. It should be noted that there have been some decisions stating that the Advocate-General in
India performs quasi-judicial functions when exercising powers under section 92 of the Civil Procedure
Code, but I respectfully disagree with these decisions.

Chapter 2

Discretions of the Advocate-General in criminal matter

Many statutes in England provide that prosecutions for offences thereunder can only be instituted

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with the consent or certificate of the Attorney-General or his Deputy, the Solicitor-General.
However, no such provision exists in India. The Attorney-General has the right to exhibit
criminal information ex-officio for misdemeanor. Under section 194 of the Criminal Procedure
Code, the Advocate-General may, with the previous sanction of the state government, exhibit to
the High Court against persons subject to the jurisdiction of the Court, information for all
purposes for which Her Majesty's Attorney-General may exhibit information on behalf of the
Crown in the High Court of Justice and that such proceedings may be taken upon every such
information as may be lawfully taken in the cases of similar instances filed by Her Majesty's
Attorney-General so far as the circumstances of the case and practice and procedure of the High
Court1 .
B) The Attorney-General in England has the right to stop a criminal prosecution at any time by
entering a nolle proseque without calling upon the prosecution to show cause why it should not
be done. In India, section 333 of the Criminal Procedure Code authorizes the Advocate-General
to inform the Court on behalf of the Government at any stage of the trial before the return of the
verdict that they will not further prosecute the accused upon the charge and all proceedings on
such charge against the accused shall be stayed and they shall be discharged of or from the same.
It is the right and privilege of the Advocate-General to move the High Court in connection with
matters relating to contempt of court and even when contempt proceedings are initiated by
private parties, the High Court usually relies upon the assistance of the Advocate-General.

The Advocate-General's powers under the "Letters Patent”

The Letters Patent of the High Court at Bombay, Calcutta and Madras grants the Advocate-General of the
respective state the authority to prefer original charges for trial by the respective High Court. Before the
Criminal Law Amendment Act of 1943, clause 26 of the Letters Patent of these courts empowered the
Advocate-General to certify that there was an error in a decision made by the High Court or that a point
of law decided by the court should be further considered. This power was similar to the power of the
Attorney-General of England to give his permission for a further appeal to the House of Lords in cases
involving a point of law of exceptional public importance. The decision of the Attorney-General in such
cases is final and cannot be challenged by mandamus. The Calcutta High Court ruled in Kurt Krug v.
Advocate-General2 that the refusal of the Advocate-General to grant a certificate cannot be challenged

1
1. A.I.R. 1933 Privy Council 124 (Dwarakanath v. Emperor)
2
I.L.R. 63 Calcutta 838 (See also R . V. Newton referred to hereafter).

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and is not subject to judicial review. Similar powers were granted to the Advocates-General of Bihar, the
Central Province and Berar, and the United Provinces by clause 19 of the Letters Patent of the respective
High Court. However, these provisions have been repealed by section 7(1) of the Criminal Law
Amendment Act of 1943.t

Chapter 3

Powers of the Advocate-General under the Code of Civil Procedure, the Patents and Designs Act and
the Lunacy Act:
(A) Sections 91 and 92 of the C.P.C, is so far as they are relevant provide as follows:

"91. Public Nuisances: - (1) In the case of a public nuisance, the Advocate-General or two or more
persons having obtained the consent in writing of the Advocate-General, may institute a suit though no
special damage has been caused, for a declaration and injunction or for such other reliefs as may be
appropriate to the circumstances of the case. (2) Nothing in this Section shall be deemed to limit or
other- wise affect any right of suit which may exist independently of its provisions.
92. Public Charities: - (1) In the case of an alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the court is deemed
necessary for the administration of any such trust, the Advocate-General or two or more persons having
an interest in the trust and having obtained the consent in writing of the Advocate-General may institute
a suit, whether contentious or not, in the principal civil court of original jurisdiction or in any court
empowered in that behalf by the State Government within the local limits of whose jurisdiction the
whole or part of the subject matter of the trust is situate to obtain a decree –
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what portion of the trust property or of the interest therein shall be allocated to any
particular object of the trust;

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(f) Authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require".
(B) Section 26 (2) (a) of the "Patents and Designs Act" empowers the Advocate-General and any other
person with his consent to move for the revocation of a patent. (C) Section 39 of the Lunacy Act, IV of
1912, empowers the Advocate-General to make an application for an inquisition whether a person
alleged to be a lunatic is of 4 unsound mind and incapable of managing his affairs
A question that has become important since the establishment of the Indian Republic is whether the
power of the Advocate-General under certain laws is administrative or quasi-judicial in nature. The High
Courts of Travancore-Cochin and Pepsu have ruled that the power of the Advocate-General under
section 92 of the Civil Procedure Code is quasi-judicial. This view is in opposition to the views held by
other High Courts in India and the courts in England. The oldest Indian decision on the matter, holding
that the power of the Advocate-General is administrative, is that of the former Punjab Chief Court 3. The
High Courts of Nagpur4, Allahabad5, and Rajasthan6 have also ruled that the functions of the Advocate-
General are merely administrative in nature.
A straightforward interpretation of the sections discussed above, without the assistance of prior
decisions, leads to the inevitable conclusion that the Advocate-General's functions are not judicial or
quasi-judicial in nature. This is what Chief Justice Scott stated in the case of Sulaiman Haji v. Sheik
Ismail7:
The Collector under Section 93 of the G. P. G. acts as the Advocate-General of the Presidency Town
with regard to his Collectorate. Therefore, a suit that requires his consent is one that he would be able to
file on his own behalf as a public officer tasked with protecting public charities as the representative of
the Crown. He does not have the right to consent to the institution of a suit by two individuals claiming
an interest in the trust unless it is a suit that he would consider justified for him to file on behalf of those
two individuals in his own capacity as a public officer.
This clear statement should have put an end to the debate, but it seems that the decisions of the
Bombay High Court in Abubaker v. Advocate-General 8 and the Pepsu High Court in the Pepsu case were
not taken into consideration. When discussing the jurisdiction of the Attorney-General in relation to
3
Dhian Das v. Jagat Ram, 1910 Punjab Records Civil No. 104, Page 365 : 8 Indian Cases 1160.
4
Nansobeg v. Gulam Hussain and Others, A.I.R. 1951 Nagpur
5
Swami Santhananda v. Advocate-General , A.I.R. 1955 All.372
6
Shrimalilal Kashival v. Advocate-General , A.I.R. 1*955 Raj. 166
7
7. I.L.R. 39 Bom. 580 at 585
8
[1902] App. Gas, 165 at 16

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relator actions, Lord Halsbury, L.G., in London County Council v. Attorney-General, made the following
observation This clear statement should have put an end to the debate, but it seems that the decisions
of the Bombay High Court in Abubaker v. Advocate-General and the Pepsu High Court in the Pepsu case
were not taken into consideration. When discussing the jurisdiction of the Attorney-General in relation
to relator actions, Lord Halsbury, L.G., in London County Council v. Attorney-General, made the following
observation:
The initiation of litigation and the determination of whether it is a suitable case for the Attorney-General
to pursue are completely outside the jurisdiction of this or any other court. This is a matter that the law
of this country has placed solely in the hands of the Attorney-General. I mention this, even though it has
not been raised in this case, because I believe it is very important not to cast any doubt on the
jurisdiction or the independent exercise of it by the highest legal officer.
As was determined in Attorney-General v. Cocker Mouth 9, "except for the purpose of costs, there is no
difference between the ex-officio information and an information in both cases the Sovereign, as parens
patriae, sues through the Attorney-General". These statements make it clear that the functions of the
Attorney-General in relator actions are administrative and are not judicial or quasi-judicial in nature.
At this point, it may be relevant to discuss the reasons why the judges of the Travancore-Cochin High
Court and the learned Single Judge of the Pepsu High Court came to the conclusion that the power
exercised by the Advocate-General is quasi-judicial. In the case of Abubaker Adam Sait v. Advocate-
General of the Travancore-Cochin High Court, the Advocate-General of the Travancore-Cochin state had
denied permission to the beneficiaries of a public charitable trust to file a suit for the removal of the
trustees of the trust. The Advocate-General made this decision after hearing evidence and the parties
involved. The aggrieved parties appealed to the High Court under Articles 226 and 227 of the
Constitution to review the records of the proceedings before the Advocate-General, to overturn the
order issued by him, and to obtain the necessary directions. The Advocate-General argued that: (1) he
was not subject to the jurisdiction of the High Court under the Articles of the Constitution invoked by the
petitioner, and (2) his order could not be overturned by a writ of certiorari because he was not
performing quasi-judicial functions under Section 92 of the C.P.C. It was in response to the second
argument that the judges of the Travancore-Cochin High Court ruled that the Advocate-General was
exercising quasi-judicial powers. After quoting from the judgment of the Supreme Court in State of
Bombay v. Khushaldas Advani10, which discussed the distinction between judicial and quasi-judicial acts,

9
(1874) L.R. 18 Eq. 172.
10
A.I.R. 1950 S.C. 222.

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administrative action, and the learned judges cited the factors that led them to conclude that the
Advocate-General performed quasi-judicial functions:
The grounds presented in support of the request for permission to file the suit may include whether
there has been a breach of the trust, whether the alleged breach is initially well-founded, whether there
is a case for seeking the court's direction on the administration of the trust, and whether the individual’s
requesting permission have an interest in the trust. These are matters that require a decision after
careful investigation. In order to determine whether there has been a breach of trust, it is necessary to
investigate the truth of the allegations. In doing so, the Advocate-General must approach the question in
controversy in a judicial manner and make a decision after considering the facts and evidence.
In addition to the specific requirements of Section 92, other elements that are typically assumed to be
involved in the Advocate-General's exercise of discretion are: (1) a decision by him that affects the
alleged rights of the individuals who seek permission to file the suit, and (2) a judicial approach in making
that decision. Of course, the Advocate-General must also determine whether the individuals who apply
for permission have an interest in the trust. If they do not have an interest in the trust, the question of
granting permission does not arise. However, even having an interest in the trust does not automatically
entitle them to the permission they have requested, even though it is a necessary condition for the
exercise of discretion in their favor.
Again, it must be noted that the aggrieved party only has a right to do so conditional on securing the
permission of the Advocate-General. Ultimately, the right to preserve the public trust and ensure that
public funds are used to achieve its objectives is a right that a beneficiary can claim along with others. If
anything, it is a right that a person has as a member of the public, rather than a personal right arising
from any specific harm to them. When the Advocate-General files a suit or consents to a suit being filed
by the relators, he acts in the public interest. The statement in the previous passage that beneficiaries
also have the right to file a suit in case of mismanagement in order to set things right seems overly
broad. In England, it is well-established law that the Attorney-General is the only person who has the
right to bring a civil suit for an infringement of a public right. There is no reason to believe that the law in
India is different, particularly since it is based on English law. With all due respect, it is submitted that the
conclusion of the Travancore-Cochin High Court that the Advocate-General performs quasi-judicial
functions under Section 92 of the C.P.C. is based on assumptions.

Conclusion

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It is worth noting that in certain circumstances, the High Courts in India may not be powerless. The
discretion granted to the Advocate-General, the first legal officer of the state, whether under Section 91
or 92 of the Civil Procedure Code, is accompanied by a duty to exercise that discretion legally and
properly. If the Advocate-General withholds permission in a capricious or arbitrary manner, without
regard to relevant considerations or for an improper purpose, or under the influence of another body, or
in furtherance of a predetermined policy, or based on a misunderstanding of his powers, or in bad faith,
it will be considered as no exercise of discretion at all and will be subject to the supervisory jurisdiction
of the High Courts under Article 226 of the Constitution of India, which can be remedied by the award of
a mandamus to reconsider the matter and fulfill his statutory duties. An important aspect of the duties
of the Advocate-General is the various tasks assigned to him and others in similar positions in other
jurisdictions. As the chief legal officer of the state, he combines the roles of legal adviser and promoter
of law and justice. As a legal adviser, he is expected to keep his government out of trouble. Normally,
every government respects the law and maintains the rule of law, so the Advocate-General may simply
act as a legal adviser. However, if a government engages in activities that are contrary to the law, it will
put the Advocate-General in a difficult position. If he only acts as a legal adviser to a government that is
prone to illegal and unconstitutional activities, he will not be acting in the public interest. In this
situation, he will have to fulfill his role as a promoter of law and justice. While hesitance on his part may
cause him to lose public respect, asserting his right to promote law and justice may result in the loss of
his office.

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