Article 76 of the Indian Constitution establishes the office of the Attorney-General for India. This position is of paramount importance as it represents the highest law officer in the country, serving as the chief legal advisor to the Government of India.
The creation of this office ensures that the Union Government has access to expert legal counsel to navigate complex legal issues and represent the government in various legal forums across the nation.
Original Text
76. Attorney-General for India
(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
(2) 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.
(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India.
(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.
Detailed Explanation
Article 76 lays down the framework for the appointment, qualifications, duties, rights, tenure, and remuneration of the Attorney-General for India.
Clause (1): Appointment and Qualifications
- This clause mandates the President of India to appoint the Attorney-General for India.
- The person appointed must possess the qualifications required to be appointed as a Judge of the Supreme Court of India.
- According to Article 124(3), a person is qualified to be appointed a Judge of the Supreme Court if they are a citizen of India and have either:
- Been a Judge of a High Court for at least five years; or
- Been an advocate of a High Court for at least ten years; or
- Are, in the opinion of the President, a distinguished jurist.
Clause (2): Duties
- This clause outlines the primary responsibilities of the Attorney-General.
- Legal Advice: To advise the Government of India on such legal matters as are referred to him by the President.
- Legal Duties: To perform other duties of a legal nature assigned to him by the President.
- Constitutional/Statutory Functions: To discharge functions conferred on him by or under the Constitution or any other law. Examples include representing the Union Government in the Supreme Court and High Courts, and advising the government on international agreements and legal issues.
Clause (3): Rights
- This clause grants the Attorney-General a significant right: the right of audience in all courts within the territory of India.
- This means he can appear and be heard in any court, from the lowest subordinate court up to the Supreme Court. This right is exclusive to the Attorney-General among legal professionals representing the government at the highest level.
Clause (4): Tenure and Remuneration
- Tenure: The Attorney-General holds office during the pleasure of the President. This means he can be removed by the President at any time, without needing specific grounds or following a fixed procedure as is the case for constitutional functionaries with fixed tenure or those removed by impeachment. Traditionally, the Attorney-General resigns when the government that appointed him resigns or is replaced, though this is a convention, not a constitutional requirement.
- Remuneration: His remuneration is not fixed by the Constitution but is determined by the President.
Detailed Notes
- Appointment: Appointed by the President of India.
- Qualifications: Must be qualified to be appointed a Judge of the Supreme Court.
- Citizen of India.
- Judge of a High Court for 5 years, OR
- Advocate of a High Court for 10 years, OR
- Distinguished jurist in the opinion of the President.
- Chief Legal Advisor: Acts as the principal legal advisor to the Government of India.
- Duties:
- Give legal advice to the Government of India upon matters referred by the President.
- Perform other legal duties assigned by the President.
- Discharge functions conferred by the Constitution or other laws.
- Right of Audience: Has the right to be heard in all courts in the territory of India.
- Tenure: Holds office during the pleasure of the President (no fixed term).
- Removal: Can be removed by the President at any time.
- Remuneration: Determined by the President, not fixed by law.
- Not a Government Servant: Not considered a full-time government servant.
- Private Practice: Is allowed to undertake private legal practice, but cannot:
- Advise or hold a brief against the Government of India.
- Advise or hold a brief in cases where he is called upon to advise or appear for the Government of India.
- Defend accused persons in criminal prosecutions without the permission of the Government of India.
- Accept appointment as a director in any company or corporation without the permission of the Government of India.
Additional Comments
- The Attorney-General is the highest law officer in the country.
- He is assisted by a Solicitor General and several Additional Solicitor Generals, although these offices are not constitutional but statutory/administrative.
- Although not a member of the Union Executive or Parliament, the Attorney-General has the right to speak and take part in the proceedings of both Houses of Parliament and their joint sittings, and any committee of Parliament of which he may be named a member. However, he does not have the right to vote in Parliament (as per Article 88).
- The convention is that the Attorney-General resigns when the Council of Ministers resigns or is replaced, as he is appointed on their advice.
- His role is distinct from that of a minister; he is a legal expert advising the government.
Summary
Article 76 of the Indian Constitution establishes the office of the Attorney-General for India, the country’s highest law officer. Appointed by the President, the Attorney-General must be qualified to be a Supreme Court Judge. His primary duty is to advise the Government of India on legal matters referred by the President, perform other assigned legal duties, and discharge functions conferred by the Constitution or law. He possesses the unique right of audience in all courts throughout India. The Attorney-General holds office at the President’s pleasure and receives remuneration determined by the President. He is not a full-time government employee and can undertake private practice, subject to certain restrictions to avoid conflict of interest with his duties to the government.