{"id":218274,"date":"2021-10-05T15:37:15","date_gmt":"2021-10-05T10:07:15","guid":{"rendered":"https:\/\/www.indialegallive.com\/?p=218274"},"modified":"2021-10-05T19:00:36","modified_gmt":"2021-10-05T13:30:36","slug":"constitutional-role-advocate-general-punjab-aps-deol-article-165-amarinder-singh","status":"publish","type":"post","link":"https:\/\/www.indialegallive.com\/column-news\/constitutional-role-advocate-general-punjab-aps-deol-article-165-amarinder-singh\/","title":{"rendered":"The Conscience of the State"},"content":{"rendered":"\n
By Lokendra Malik<\/strong><\/p>\n\n\n\n The appointment of the advocate-general (A-G) in Punjab has triggered a debate about his constitutional role and powers in a state\u2019s administration. The A-G handles the legal matters of the state government. As per a well-established constitutional convention and practice, the chief minister installs his own man in the office of A-G.<\/p>\n\n\n\n A few days ago, the governor of Punjab appointed APS Deol as the new A-G. The appointment comes after the earlier A-G, Atul Nanda, quit after the resignation of CM Captain Amarinder Singh who had appointed him.<\/p>\n\n\n\n Under the constitutional scheme of things, Article 165 deals with the office of the A-G in a state. This provision corresponds to Article 76 that deals with the office of the attorney-general for the Union government. The only difference between these two articles is the absence of clause (3) of Article 76 which gives a right of audience to the attorney-general in all courts throughout India. But no such right is available to the AG.<\/p>\n\n\n\n The governor appoints a person who is qualified to be a judge of the High Court as the A-G on the advice of the chief minister. The age limit of 62 years for judges of High Courts, however, does not apply to the appointment of the A-G. The principal duty of the A-G is to advise the state government on legal matters referred or assigned to him. He holds his office during the pleasure of the governor and receives such remuneration as the governor determines. Admittedly, the A-G has no security of tenure, and the governor can remove him any time on the advice of the chief minister without assigning any reason.<\/p>\n\n\n\n In England, the office of the attorney-general is regarded as a political office in the sense that he is a member of the government and comes in and goes out with it. In India, the attorney-general has not, so far, been a member of the cabinet. The law minister looks after the legal matters in the cabinet, but the attorney-general and the A-G also resign on the resignation of the cabinet as a convention. However, the new government can retain the AG. It all depends on the equations between the AG and the CM and also the professional competence, integrity and credibility of the AG. As per Article 177 of the Constitution, the A-G is also entitled to take part and speak in the proceedings of the state legislature, but he is not entitled to vote there.<\/p>\n\n\n\n While the governor appoints the A-G and has no personal say in policy decisions, he can ask the chief minister to reconsider his decision if he finds something objectionable with the A-G\u2019s antecedents or eligibility. In a state, the chief minister is the real head of the government. A government can remain in power as long as it enjoys the support of the majority in the assembly. It is not accountable to the governor. However, the governor has the right to warn the government if it acts against the provisions of the Constitution. If the government fails to do so, the governor can report the matter to the president of India as per Article 356 of the Constitution, and the president has the power to dismiss the government. The A-G reports to the elected government and defends it in the courts of law. The governor can also seek the opinion of the A-G on important constitutional and legal issues.<\/p>\n\n\n\n Notably, there cannot be more than one A-G in a state. But the government has the power to appoint other lawyers to look after the legal matters of the government and may also give them any designation, including that of additional A-G, deputy A-G, assistant A-G, etc. Their designations are assigned in the exercise of executive powers of the state under Article 162 of the Constitution, not in the exercise of its constitutional power under Article 165. They are not constitutional functionaries but they hold special assignments based on the requirement. These appointments are mostly made because of political patronage and recommendations. Some states have many additional A-Gs. This practice should be deprecated and the appointments should be made only on the basis of merit.<\/p>\n\n\n\n