Chapter-VII

CONCLUDING OBSERVATIONS
 CONCLUDING OBSERVATIONS

From the discussion in the preceeding chapters, it is clear that

in the constitutional systems of most of the liberal democracies some of the

legal offices like Attorney General, Solicitor General, Advocate General,

Additional Advocate General have been created for the purpose of smooth

administration of justice on behalf of the Government. It was thought that

thes^ officers can render legal advice to head of the State, Provinces,

Governmental Agencies and represent the Government in legal proceedings.

In federal form of Government, the Advocate General of a state was

expected to act as the legal advisor to the state Government. Apart form

defending the rights of citizens, he would grant sanction for or might himself

institute suits in cases of public nuisances or in regard to the better

management of trusts created for public proposes of charitable or religious

nature

The makers of Indian constitution were much influenced by the

British constitutional practices. In fact, the idea of having an Attorney

General at the centre was borrowed from Britain. The Office of the Advocate

General had existed in the Presidencies of Bengal, Madras and Bombay

since the first half of the nineteenth century. The Government of India Act

1858 provided that the appointments of Advocate General of several

Presidencies were to be made by her majesty by warrant under her sign

manual. The Government of India Act , 1935 had created the office of
Advocate General of the federation corresponding to the ’Attorney General’

of Britain.

There were debates and discussions over the issue of

appointment of Attorney General and Advocate General among the

members of the Constituent Assembly. Unlike Britain, the Attorney General

and Advocate General in India were not allowed to hold political or

ministerial Office. The constitutional makers of India did not incorporate the

American practice of election of Advocate General of states. Moreover, both

were conferred with the right to address the legislature and they could be

appointed as members of committees of legislature without the right to vote,

some of the provisions relating the office of the Attorney General and

Advocate General in the Draft Constitution of India were altered in the new

constitution which was finally adopted. In course of the working of the

Constitution in India, there has been expansion in the sphere of activities

of both Attorney General and Advocate Generals in legal matters due to the

written instruction given by the Governors from time to time within the

purview of provisions of Constitution, the decision given by the Apex Court

of India and the High Courts at State level.

As per the provisions of the constitution , various states of the

Indian federation have got the privilege of creating the office of the

Advocate General. Since the creation of the state of Orissa, the Office of

the Advocate General was created in the year 1948. Besides the Advocate
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General, there are other Law Officers of Government like Government

Advocates, Additional Government Advocates, Standing Counsel and

Additional Standing Counsels. All these Law Officers are associated with the

Office of the Advocate General. A look at the organisational structure of the

office of the Advocate General also shows that apart form twenty four law

officers, there are more than one hundred twenty six employees belonging

to various rank. Like any other state, appointment, dismissal and

remuneration of Advocate General are matters in respect of which the

Governor takes the decision being guided by the advice of the Council of

Ministers. The remuneration, retainer and fees of Advocate General and

other Law Officers have varied from time to time. Some of the occupants of

the office of the Advocate General in orissa like Sri Harihar Mohapatra, Sri

Gangadhar Rath, Barrister B.M. Pattanaik and Barrister Gobind Das have

been well acknowledged legal personalities in the Country.

The Advocate General performs various constitutional

functions like representing the state and its officers in the Supreme Court

of India and in any court, Tribunal or other Authority in orissa in all legal

ptoceodinys • Civil, Ciiminnl, Revenue oi olhetwise whole the iuleiests of

the state are involved. He has been made competent to look after the legal

implications of various resolutions and regulations and other legislative

matters and to see the constitutionality of the same when so required. He

has been also authorised to report to the Government about the legal steps

necessary to protect public rights specially in matters of public charities and

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public nuisances. He also drafts or examines agreements offbehalf of the

state in the matters of Inter-state interests and commercial interests of the

state when required to do so. The Advocate General reports to the

Government the results of all proceedings conducted by him or under his

direction and suggests further remedies in the matter if necessary. The

Advocate General can be also assigned other legal duties as shall be

required by the state from time to time.

Besides the above functions, the Advocate General enjoys the

power of 'Nolle Prosequi' (Power to withdraw unconditionally criminal

proceedings against an accused), right to pre-audience, right to address

state legislature. He also acts as the Public Prosecutor and appoints Public

Prosecutors. All Law Officers in the State act under the super vision and

guidance of Advocate General. The Advocate General also acts as the Ex-

officio member and Chairman of 'Advocate’s Welfare Fund'.

It can be observed from our discussion that unlike the

Government of India Act, 1935, the new constitution of India has given up

the practice of the state Governor acting in his individual judgement in

exercise of his power in relation to the appointment, dismissal and fixing of

remuneration of Advocate General. The Governor is to act with the advice

Co«jr>cal of
of theAministersand the salary of Advocate General is one the of votable

items in the state Budget.

 From the data cited earlier, regarding the number of cases

handled by the office of the Advocate General in Orissa it can be clearly

observed that the office of the Advocate General has been dealing with a

large number of cases - Writ, Civil, Criminal and Miscellaneous. The number

of cases have been also increasing from year to year. Of course, the data

cited here refer to various types of cases dealt in the High Court of Orissa

only. For instance, in the year 1991 more than nine thousand Writ cases,

five hundred eleven Civil cases and two thousand four hundred sixtyone

Criminal cases were handled, whereas in the year 1995 the number of writ

cases were almost same as in 1991 but there was almost two fold increases

in the number of Civil and Criminal cases. It is interesting to note that

except in 1994, the Writ cases did not vary much from the year 1991 to

1995. The number of Civil cases have been increasing from year to year.

So far as Criminal cases are concerned, their number have not increased

beyond three thousand except the year 1995. From the year 1991 to 1995,

the number of Misc. cases have not exceeded to more than fourteen

thousand. However, from the data available from the year 1996 to 1999, it

can be observed that the number of cases have been increasing

Particularty, there has been two fold increase of Wiit cases. In the year

1995, the total number of Writ cases were 9,686 whereas in 1999, the

number was 18,805. There has ben marginal rise in the number of Civil,

Criminal and Misc. cases. There number in the year 1999 has been 6,300,

6,344 and 22,322 respectively. So it can be argued from the data cited
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above that the office of the Advocate General has been playing an useful

role in handling growing number of cases on behalf of the Government.

In course of working of our political system since

independence, it has been observed that the Office of the Advocate General

has been highly politicised. Appointments to this office have been made on

political considerations and some of the incumbents have been behaving as

political agents of the Government in power. Although the Party-in-power is

competent to select the Advocate General of its choice, sum?of the qualities

like efficiency , honesty and integrity have not been given due weightage

in case of someof the incumbents holding the post of Advocate General

Although the Advocate General is appointed by the Governor

and remains in power as long as \tre enjoys the pleasure of the Governor,

for the discharge of functions and duties of his office, he is neither subject

to control of the Governor nor the state Government. Under the constitution,

he is free to exercise his discretion according to law and according to his

best ability in the manner in which he considers best. In practice, there has

been erosion of constitutional neutrality and integrity expected from the

Advocate General. It seems that common people are gradually loosing

confidence on the impartial role of Advocate General in legal matters. Most

probably the 'Merit System' in the appointment of Advocate General is going

to be replaced by the ’Spoil System’

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It is one of the constitutional privileges of the Advocate

General to address the legislature and take part in the proceedings of the

House without enjoying right to vote. It is very surprising to note that some

Advocate Generals have been prevented several times by the members of

the Legislative Assembly from expressing the view points on legal matters

freely. Some members of the State Legislative Assembly have not hesitated

to bring baseless allegations against the Advocate Generals.

It is a fact that Advocate General’s power to file cases against

those who are booked under public nuisance and wrongful act has not been

properly and impartially exercised because of political interference.The

modality of tackling this specific problem has neither been elaborated in the

constitution nor by the rules framed by the state Government from time to

time.

More over, in cases involving mismanagement under public

charitable and religious trust, the Advocate General fails to proceed

impartially because of fear of incurring the displeasure of party in power. It

is also unfortunate that there is no established principle or code of conduct

to determine the Constitutional status of the office of the Advocate General

of Orissa. Of course,six states in india have already granted cabinet status

to their Advocate Generals.

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As it has been earlier pointed out, the Advocate General is

competent to take legal steps to protect the interest of the Government

wherever it is found to be in jeopardy due to any illegal act of the state or

its officers. Moreover, he advises in the matter of anti-corruption pertaining

to the activities of the officials of the state when required to do so. From the

study of records and observations, one is very much sceptical about the

performance of the two above mentioned functions by the Advocate

General. It seems that most of the Officials who misuse their power and

adopt corrupt practices as a result of which the interest of the State is

affected have been successful in escaping strong legal action against them.

The successive Governments in power have not bothered to seek the

advice of the Advocate General in matters pertaining to corruption involving

officials of the State.

It is also regrettable that uniform principles have not been

evolved for the creation of different types of posts in the office of the

Advocate General of orissa. There is also absence of uniform recruitment

rules governing the condition of services of the offices and staff members

of the office of Advocate General.Till to day, the Governments of Orissa

have not provided any independent building for the office of the

Advocate General, since this office has been accommodated in the High

Court building, there is acute shortage of space for this office. Moreover,

there is shortage of staff in proportion to work load. Excluding the Advocate

General, there are Twentyfour Law Officers and one hundred twentysix
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employees of various categories in the office. Taking into account the

growing number of cases, conscious people have been sceptical about the

ability of this office to handle properly these cases within a short span of

time. For instance in the year 1999, the total number of Writ, Civil, Criminal

and Misc. cases only have been around fifty thousand. The persistent

demand for creation of twenty Additional Sections and recruitment of around

hundred more staff members have been ignored by the Government.

The small Library in the verandas of the office of the Advocate

General is not well equipped. There is shortage of furniture in the offices.

The successive Governments in power have not made provisions for

adequate number of staff quarters for the employees of this office. Even

there is no provision for conference Halls & Bicycle-cum-scooter stand. The

retainer and fees prescribed for Law Officers is also very inadequate, From

the Budgetary allocation for the office of the Advocate General of Orissa

from the year 1996-97 to 1999-2000,(566 Table V: 1) it can be observed that

the amount earmarked is even inadequate to meet the non-plan

expenditure.

Taking into account the present scenario, the following

suggestions can be given. First, the mode of appointment of Advocate

General of the state should be changed. A committee consisting of the

Chief Minister, Chief Justice of High court and leader of the opposition

should prepare a panel of names out of which the Governor should appoint
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one as the Advocate General of the State. There is justification for involving

the chief justice of the High Court and the leader of the opposition because

apart form acting as the legal advisor to the Government in power, the

Advocate General is expected to perform some statutory functions. During

selection of incumbents, merit should be the sole criteria. The arrest of the

former Advocate General of Orissa Mr. Indrajeet Ray and his subsequent

release on bail in cases involving rape and murder substantiates our

argument for the need for involvement of Chief Justice and the leader of the

Opposition in the Assembly in the process of selection of Advocate General.

Like other high constitutional dignitaries, the present procedure of removal

of Advocate General should be framed in such a way by which the

Advocate General can act without any fear or favour. The legislature of the

state must be competent to remove him from office. Frequent change of

Advocate General with the change of Government in power has seriously

affected the course of administration of justice. The interest of the state has

been also affected. For this purpose, the provisions relating to the

appointment and removal of Advocate General can be suitably amended.

Second, the salary, retainer and fee of Advocate General

should be fixed up taking into account the corresponding increase in the

salary of other judicial officers of the state. The present practice of making

expenditure incurred for the office of the Advocate General as one of the

votable items by the state legislature should be given up. The entire

expenditure must be charged upon the consolidated fund of the state. The
retainer and fee of other law officers should be revised from time to time by
taking into consideration the price rise and other factors. They should be

given good salary, security of services, adequate opportunity for promotion,

facility for training, leave and satisfactory retirement benefits.

Third, the Government of Orissa must frame some principles

or evolve code of conduct to determine the constitutional status of the Office

of the Advocate General. There is also necessity of framing uniform

principles for the creation of different types of Posts in the office of

Advocate General. Promotional avenues must be created for the staff

members. There should be appointment of adequate number of staff

members by taking into consideration the growing work-load in the Office.

Fourth, the state Government should provide an independent

building for the office of the Advocate General. This Building must have
sufficient space to accommodate different sections, the staff

members,Library, Conference Hall and Recreation Centre. The Government

should also provide a Bicycle-Cum-Scooter stand for the convenience of the

staff members.

Fifth, the speaker of the state Assembly must ensure that the
Advocate General is not deprived of his right to address the members or

participate in the deliberation of the Assembly or participate as member of

any legislative committee. The Advocate General should be associated with

various committees of the Mouse where legal matters are involved.

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Sixth, in course of the wot king of tho Office of Advocate

General in various states, it lias been observed that the law officers

including the Advocate General do not remain accountable for their official

activities. It is time to initiate debates and discussion over this issue.

Attempts should be made to evolve modalities through which the Law

Officers can be made accountable and behave in a responsible way.

The constitutional makers were prudent enough to vest

enormous responsibility with the Advocate General of a state.Although he

is the head of an important organisation, common people do not know much

about him. If he is allowed to perform his duties as required under the

constitution on behalf of the state Government, ultimately the people will be

benefitted. The -number of litigacies in which the state is a party can

certainly be minimised. The growing expenditure incurred by the State for

this purpose can be reduced and diverted towards developmental

programmes benefiting the poorer sections of the state. Most probably

Shakespeare’s observation about true love (Sonnet No. 116) also holds

good true in case of Advocate General. To quote him,

"Whose worth is unknown,

although his height be taken"

Having regards to his high position when any statement or

word is made by him, the Court has always given priority to his statement

and acted on that.