Article 165 of the Indian Constitution provides for the office of the Advocate-General for each State. This constitutional functionary serves as the principal legal advisor to the State government, similar to the Attorney-General of India at the Union level. The Advocate-General plays a crucial role in assisting the State executive on legal matters and representing the State in various legal proceedings.
The establishment of this office underscores the importance of having independent and expert legal counsel readily available to the State government to ensure that its actions are in conformity with the law and the Constitution. The Article outlines the method of appointment, necessary qualifications, the duties to be performed, and the tenure of this important office.
Original Text
- Advocate-General for the State.— (1) 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. (2) 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 such other functions conferred on him by or under this Constitution or any other law for the time being in force. (3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
Detailed Explanation
Article 165 establishes the constitutional office of the Advocate-General for each State of India.
Clause (1) stipulates the appointment process and qualifications for the Advocate-General. The Advocate-General is appointed by the Governor of the respective State. The person appointed must possess the qualifications required to be appointed as a Judge of a High Court. According to Article 217(2), a person is qualified to be appointed as a Judge of a High Court if they are a citizen of India and have held a judicial office in the territory of India for at least ten years, or have been an advocate of a High Court (or two or more such Courts in succession) for at least ten years.
Clause (2) defines the duties of the Advocate-General. The primary duty is to advise the State government on legal matters referred or assigned to them by the Governor. They are also tasked with performing other duties of a legal character assigned by the Governor. Furthermore, the Advocate-General must discharge functions conferred upon them by the Constitution or any other law in force. Essentially, the Advocate-General serves as the chief legal advisor to the State government and performs legal duties as required.
Clause (3) deals with the tenure and remuneration of the Advocate-General. Unlike many other constitutional offices, the term of office for the Advocate-General is not fixed. They hold office during the pleasure of the Governor. This means the Governor can remove the Advocate-General at any time, without assigning any reason. The remuneration received by the Advocate-General is also not fixed by the Constitution but is determined by the Governor. By convention, the Advocate-General usually resigns when the council of ministers resigns or is replaced, as they are appointed on the advice of the council of ministers and are expected to work in harmony with the government.
Detailed Notes
- Constitutional Post: Article 165 provides for the constitutional office of the Advocate-General for each State.
- Highest Law Officer: The Advocate-General is the highest law officer of the State.
- Appointment: Appointed by the Governor of the concerned State.
- Qualification: Must be a person qualified to be appointed as a Judge of a High Court. This means the person must be a citizen of India and either:
- Have held a judicial office for at least ten years in India; or
- Have been an advocate of a High Court (or High Courts in succession) for at least ten years.
- Duties:
- To give advice to the State government upon such legal matters as are referred or assigned by the Governor.
- To perform other duties of a legal character as assigned by the Governor.
- To discharge functions conferred by the Constitution or any other law.
- Essentially acts as the principal legal advisor to the State government.
- Term of Office:
- Not fixed by the Constitution.
- Holds office during the pleasure of the Governor.
- Can be removed by the Governor at any time.
- Conventionally, resigns when the State government (Council of Ministers) resigns, as they are appointed on the government’s advice.
- Remuneration:
- Not fixed by the Constitution.
- Receives such remuneration as determined by the Governor.
- Rights and Privileges (related, but primarily from Article 177):
- Has the right to speak and take part in the proceedings of the State Legislature (Legislative Assembly and Legislative Council where it exists).
- Has the right to speak and take part in the proceedings of any committee of the State Legislature of which he may be named a member.
- Does NOT have the right to vote in the State Legislature or its committees.
- Has the right of audience in all courts within the territory of the State.
- Enjoys all the privileges and immunities available to a member of the State Legislature (under Article 194).
Additional Comments
- The Advocate-General is the State’s counterpart to the Attorney-General of India at the Union level.
- The office is politically sensitive as the tenure is subject to the pleasure of the Governor, which in practice means the pleasure of the ruling State government.
- While the duties are primarily advising the government, the Advocate-General also represents the State in important legal cases before the High Court and Supreme Court.
- The rights conferred by Article 177 are significant as they allow the Advocate-General to participate in legislative proceedings related to legal matters, despite not being a member of the legislature.
Summary
Article 165 of the Indian Constitution provides for the office of the Advocate-General for each State. Appointed by the Governor, the Advocate-General must be qualified to be a High Court Judge. Their primary duty is to advise the State government on legal matters and perform other legal duties assigned by the Governor or conferred by law. The Advocate-General holds office during the pleasure of the Governor and receives remuneration determined by the Governor. Along with duties, the Advocate-General has rights, such as the right of audience in all State courts and the right to participate, but not vote, in the proceedings of the State Legislature and its committees.