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DAILY
CLASS NOTES
Indian Polity
Lecture - 37
Attorney, Solicitor &
Advocate General || Governor
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Attorney, Solicitor & Advocate General || Governor
Attorney General of India:
Article 76 of the Constitution mentions the office of Attorney General for India.
The office of Attorney General is part of the Union Executive.
He is also known as the highest law officer of the country.
Article 76 says that the President shall appoint a person who is qualified to be appointed a Judge of the
Supreme Court to be Attorney General for India
It also says that, 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.
In the performance of his duties, the Attorney General shall have the right of audience in all courts in the
territory of India.
The Attorney General shall hold office during the pleasure of the President, and shall receive such
remuneration as the President may determine.
Note:
His age of retirement is not mentioned in the constitution. Hence, he can be reappointed as many times
as the Government desires.
His salary is also not defined in the constitution. He is remunerated on the case to case basis.
Limitation:
He cannot fight a case against the government of India.
He cannot defend anyone in a criminal case.
He cannot be a director in any company or cooperation without the permission of the government (to avoid
conflict of personal interest and constitutional duty)
Attorney General of USA:
In the USA, the AG is the chief lawyer of the government.
He also leads the Department of Justice.
He is the principal adviser to the President of the US.
He is appointed by the President and his appointment is confirmed by the senate (upper house).
He can be impeached by the US Congress. The President also has the power to remove it.
The Attorney General is part of the US cabinet, whereas in India, the Law Minister is part of the Indian
Cabinet (not the Attorney General)
Solicitor General:
The Solicitor General of India (SG) is the Law Officer under the Attorney General.
They assist the Attorney General in judicial matters in the fulfilment of his official responsibilities.
There are certain additional solicitor generals to assist the Solicitor General.
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However, only the office of the Attorney General is created by the Constitution. In other words, Article 76
does not mention the Solicitor General and Additional Solicitor General.
Appointment and Tenure:
He is appointed by the President of India.
His eligibility is similar to that of the Attorney General.
Solicitor General is a statutory post.
Solicitor General and Additional Solicitor General's office and duties are governed by Law Officers
(Conditions of Service) Rules, 1987 and not by the Constitution.
He is eligible for reappointment.
He can be removed at the pleasure of the President, so uncertainty exists in the tenure of office.
Duties:
The Solicitor General can appear in the Supreme Court or any High Court on behalf of the Government
of India.
Unlike the Attorney General, the Solicitor General does not tender legal advice to the Government of India.
His workload is confined to appearing in the courts on behalf of the Union of India.
Similarities between Attorney General and the Solicitor General:
The private practice of both the Attorney General and the Solicitor General is prohibited.
They cannot advise anyone against the Government or Government undertakings.
The fees of both officers are fixed per day and per case.
Advocate General:
Article 165 has provided for the office of the Advocate General for the States.
He is the highest law officer in the State. Thus, he corresponds to the Attorney General of India.
Appointment and Qualification:
He is appointed by the Governor of the concerned state.
He must be qualified to be appointed as the judge of the High Court.
The Constitution does not define any fixed term for the Advocate General.
He remains in office upon the pleasure of the Governor.
Tenure of Office:
There is no fixed tenure.
The tenure of the Advocate General depends on the pleasure of the Governor.
He can quit his office by submitting his resignation to the Governor.
By convention, he resigns when the government (Council of Ministers) resigns or is replaced, as he is
appointed on the advice of the Council of Ministers.
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Duties:
It shall be the duty of the Advocate General to give advice to the Government of the concerned State upon
such legal matters and to perform such other duties of a legal character.
He may also be assigned extra legal work if the Governor thinks so.
The Governor may, from time to time, refer or assign duties to him.
He must discharge the functions conferred on him by or under the Constitution or any other law for the time
being in force.
Rights of Advocate General:
He can take part in legislative assembly proceedings.
He cannot vote in any proceedings.
Article 177:
He has the right to speak and to take part in the proceedings of both the Houses of the state legislature or
any committee of the state legislature of which he may be named a member but without a right to vote.
He enjoys all the privileges and immunities that are available to a member of the state legislature.
Conclusion:
Attorney General submits his resignation to the President.
The Solicitor General and Additional Solicitor General submit his resignation to the law minister.
The Advocate General submits his resignation to the state Governor, which then sends it to the state cabinet.
Difference Between the Attorney General and the Advocate General:
Governor:
Article 153:
It talks about the office of the Governor.
There can be one Governor for each state (there can also be one Governor for two or more states).
Article 154:
The Governor performs executive functions of the state.
Article 155:
He is appointed by the President with a warrant and seal in his hand (it means that the President is the final
authority for appointment, his signatures are on his appointment letter.
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Article 156: (Term/ Tenure):
He shall have a 5 year term, but actually holds the office on the pleasure of the President.
He submits his resignation to the President.
The Governor can continue after 5 years until the new governor gets appointed.
Article 157: Qualification
He should have attained a minimum of 35 years of age.
He should be a citizen of India.
Article 158:
He cannot be a member of any house of the state legislature.
He should not hold any office of profit.
In case a person is governor of two or more states, then the president will decide the salary (it will be divided
among the state governments of the relevant states).
To ensure the non-partisan nature of the governor, his/her emoluments and allowances shall not be
diminished during his tenure (constitutional protection).
Article 159: Oath
The oath to the Governor is administered by the Chief Justice of the High Court.
Article 161: Pardoning Powers
The court has said that the Governor's power is to be used according to the decision of the council of
ministers.
Debates with Respect to the Office of the Governor:
Is he/she the agent of the Centre or the linchpin (very vital person) of the system?
History of Governor's Office:
In 1858: Governors were the agents of the crown.
In 1935: The office of the Governor was established to work according to the council of ministers, but with
special and discretionary powers.
From 1947-50: Constituent assembly debates:
Ambedkar referred to the governor as an ornamental figure, whose power should be limited and nominal.
