ADVOCATE GENERAL OF THE STATE
Author: Aaradhya Shrivastava, School of Law Jagran Lakecity University, Bhopal
The Constitution makers had decided to adopt the same pattern of Parliamentary System of Government in the States, i.e. a replica of Government at the Union. The only difference in this system is that the Constitutional head of the government in the state i.e. the Governor is not elected, either directly or indirectly, rather he is appointed by the President. This has been done in order to maintain the unitary spirit of the federation that is Union of India alive. Part VI of the Constitution containing Articles 153 to 167 deals with the government in the States, except in the state of Jammu & Kashmir. The state executive consists of the Governor, the Chief Minister, the Council of Minister and the Advocate General of the state. Jammu and Kashmir related provisions are dealt with in Article 370, under the Part XXI titled Temporary, Transitional and Special Provisions.
Article 165 of THE INDIAN Constitution talks about the Advocate- General for the State-
Article 165- Advocate-General for the State,-
- The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a 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 hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
Corresponding to the office of the Attorney-General at the Union level (article 76), Article 165 provides for an Advocate-General for each State appointed by the Governor i.e., in effect by the Ministry. The Advocate-General is the Chief Law Officer of the State and by long standing convention he is entitled to precedence in the matter of audience in all courts in the State in the same manner as the Attorney-General of India gets precedence in all courts throughout India vide article 75(3), although it is not specifically mentioned in article 165. The work of Advocate General is the same in the state as of the Attorney General at the union level.
Clause (a) gives the provision that it is the duty of the Governor of each state to appoint Advocate General for their state. It is important to mention that the person who is appointed as the Advocate General should also be qualified to be appointed as the judge of the High-Court of that State.When considering the qualification of a person for appointment as an Advocate-General, the question is only whether he is qualified to be appointed as a Judge of the High Court as laid down in article 217 (2), and not whether he has attained the age at which he would have to retire had he been appointed a Judge of the High Court.
Clause (b) tells about the duties of the Advocate General of the state. The Advocate General of the state has the duty to provide advice regarding all legal matters and to do other such duties of legal character which may be assigned to him by the Governor from time to time.
Under Clause (c) holding office during the pleasure of the Governor means during the pleasure of the Ministry. Therefore, although the Constituent Assembly had rejected the proposal to require the Advocate-General to retire with the Ministry that appointed him, a convention has grown for every Advocate-General to resign from his office whenever there is a change of Government in the State.
Duties and Functions
Below are the duties and functions of the Advocate General:
(1) He gives advice to the government of the state upon such legal matters, which are referred or assigned to him by the Governor.
(2) He performs such other duties of a legal character that are referred or assigned to him by the Governor.
(3) He discharges the functions conferred on him by or under the Constitution or any other law.
Following are the rights of the Advocate General:
(1) In the performance of his official duties, he has the right of audience in any court in the State.
(2) He has the right to speak or to take part in the proceedings of the state legislature but without a right to vote.
(3) He has the right to speak or to take part in the meeting of any committee of the state legislature of which he is named as a member but without a right to vote.
(4) He enjoys all the privileges and immunities that are available to a member of the state legislature.
However, there are certain limitation put on the Advocate General so as to prevent the conflict of interest between Government and himself
Limitations on him to prevent conflict of interest and complications:-
1. He should not advise or hold a brief against the Government of state.
2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the Government of state.
3. He should not defend the accused person in criminal prosecutions without the permission of the Government of the state.
4. He should not accept appointment as director in any company or corporation without the permission of the Government of state.
The post of Advocate General is a post provided by the Constitution of India. It is the same as the post of the Attorney General at the union level. Advocate General is appointed by the Governor of the respective state, so as to take advice in legal matters. It is the duty of the Advocate General to provide advice to the state government as to when required. He is the one who represents the state in courts. The fee of the Advocate-General for appearing before the court on behalf of the Government may be settled between him and the Government but there is no provision to the effect that it cannot be changed to the disadvantage of the Advocate-General.
However, it is not a full-time post and he can engage in private legal practice. He can also be reappointed or is eligible for any other government appointment after ceasing to hold office.