Chapter ~V

FUNCTIONS OF THE ADVOCATE GENERAL

 FUNCTIONS OF THE ADVOCATE GENERAL

Like most of the important Offices created under the

constitution of India, the framers of Indian Constitution have also made

some detailed elaboration regarding the functions of Advocate General of

States. In the light of the provisions relating to the function of Advocate

Generals of States, the Governors of concerned states have also given

instructions from time to time which have resulted in the expansion of

sphere of activities of Advocate General. The epoch-making decisions of

various High Courts and the Supreme Court have also contributed towards

clarifying the position of the Advocate General involving legal matters.

It is simply difficult to discuss about all types of functions

performed by the Advocate General. An attempt is being made to highlight

briefly about some of the important functions, privileges and rights of the

Advocate General. They can be discussed in the following way:

i. Constitutional functions;

ii. Functions of Law Officers undertheSupervision andguidance of

Advocate General;

iii. Advocate General acting as Public Prosecutor and power to appoint

Public Prosecutors;

iv. Power to withdraw unconditionallycriminalproceedings against an

accused (Nolle Prosequi);

v. Right to Pre-audience;

VI. Right to address the state legislature; and

 94

vii. Advocate General acting as Ex-officio Member and Chairman of

Advocate Welfare Fund and his function relating to Election to State

Bar Council.

Constitutional Functions

According to Article 165(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 the functions conferred on him by or under this Constitution or

any other law for the time being in force".1 In pursuance of Clause 2 of

Article 165 of the Constitution of India, the Advocate General of various

states have been broadly assigned the following functions:

1(a) He is to represent the State and its Officers in the Supreme

Court of India and in the High Court of concerned States in all

legal proceedings (Criminal, Civil, Revenue or otherwise)

where the interests of the states are involved.

(b) He is to conduct or see the proper conduct through other

Counsels of all such proceedings as are referred to above.

(c) He is to engage Juniors with him or other Counsels to conduct

such proceedings as are referred to above.

1. The draft Constitution, The Constitution of 1949 and the Constitution

of Today, S.CT~Sarkar and Sons Private Limited, Calcutta, P. 130.
(Year of publication is not mentioned).
 95

Such Juniors and other counsels shall be engaged at fees as

prescribed in the rules of such courts. In special cases fees other than

those prescribed may be fixed by Government in Consultation with the

Advocate General. All such engagements shall be approved by the

Government in accordance with the advice of the Advocate General.

2.(a) He is to represent the State in all proceeding - Civil, Criminal,

Revenue or otherwise in any Courts, Tribunal or other

authority in the state or outside wherein his services are

requisitioned by the government.

(b) He is to conduct or see to the proper conduct of all such

proceedings with the help of juniors or through other counsels

in all matters i.e Civil, Criminal, Revenue or otherwise in any

Court, Tribunal or other authority in the State or outside where

in his services are requisitioned by the Government.

3. He is to represent any Court of wards in the State in the

Supreme Court of India or in the High Court of concerned

state in any legal proceedings-Civil, Criminal, Revenue or

otherwise and to conduct the said proceedings himself or

through other counsels engaged by him.

 96

4. He represents a party in the Supreme Court of India or the

High Court of the state where in important public interests are

involved and conduct all such proceedings either himself or

through other Counsel.

5. He is to scrutinise draft bills, Government resolutions, rules

and regulations and other legislative matters and to see to the

Constitutionality of the same when so required.

6. He is to report the Government any flaws in any law, rules,

regulations and any such matter and suggest remedies for the

same.

7. He is to report to the government the results of all

proceedings conducted by him or under his direction and

suggest further remedies in the matter if necessary.

8. He has to assist any Court when his assistance is required by

the Court in connection with an proceedings pending before

that Court.

9. He has to report to the Government about the legal steps

necessary to protect public rights specially in the matters of

public charities and public nuisances.

 97

10. In general, he advices the government 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.

11. He looks to the legal aspect of all the materials to be placed

before Inquiry Commission and conduct and see to the proper

conduct of the proceedings before any Inquiry commission set

up by the State Government.

12. He advises in the matter of anti corruption pertaining to the

activities of the officials of the State when required to do so.

13. He also drafts or examines agreements on behalf of the state

in the matters of Inter-State interests and commercial interests

of the State when required to do so.

14. He advises in the matter of appointment of Law Officers to

represent government in Courts when required to do so.

In para 10 of the assignment of duties of Advocate General

under the Constitution of India, it has been mentioned that when the rights

granted to citizens are in jeopardy in the hands of the state, the state should

protect it or else the State would get unnecessarily involved in unworthy

 98

litigations. In order to avoid it, the Advocate General is to advice the

Government for the protection of such rights of individuals in the State.

Assignment of such a duty is necessary in order to maintain rule of law in

the State. In para 15, the Advocate General is required to advice about the

propriety of undertaking any litigation on behalf of the state. Even in the

past, such advice was always being sought from the Advocate General. All

notices by the litigants come to the Advocate General for his opinion.

Except the Advocate General surely nobody else is more competent to say

as to whether the state should undertake a particular litigation or not since

it is the Advocate General who ultimately has to defend the position of the

State before the High Court or the Supreme court. Lastly, in para 16, it has

been clearly mentioned that the Advocate General can be assigned such

other legal duties as shall be required by the State from time to time2.

Functions of the Law Officers under the supervision of Advocate

General

There is provision for appointment of Law Officers to assist the

Advocate General in legal matters. The most important function of the Law

Officers are3

(a) To assist the Advocate General in Government litigation in

drafting petitions, counters and grounds to appeal or revision

2. Notification of Law Department, Government of Orissa, dt. 12.6.1968.

It holds true in case of other States in Indian Federation.

3. Reference can be made to Notification of Law Department

23.4.1974, Government of Orissa.
 99

and in such other legal matters as are entrusted to them from

time to time by the Advocate General.

(b) To appear in such civil, criminal or other matters before the

High Court as are entrusted to them by the Advocate General

or the State Government in the Law Department, provided

that, Law Officers declared as Public Prosecutors alone shall

conduct criminal matters in the High Court.

Besides that, the Law Officers of the High Court shall be

precluded from

(i) Appearing against the State Government or Government

Officers of the Court of wards in any matter either before the

High Court or any other Court, authority or Tribunal.

(ii) Advising any ward without previous permission of Court of

wards.

(iii) Advising private parties in case in which they are likely to be

called upon to advise the government and shall not accept

any engagement or fee from private parties in which he

appears on behalf of the Government.

 100

(iv) Appearing in any contempt proceeding in favour of the

contemptor without sanction of the State Government.

(v) Defending accused persons in criminal prosecution unless

authorised by the government.

It should be noted here that, no Law Officer shall appear for

any other State Government or the Union of India without the specific

permission of the Legal Rememberance of government of concerned State.

Further Law Officer shall not4 hold any brief against Government or give

advice to private parties in cases in which he is likely to be called upon to

advise Government or Government Officers. The Law Officer is not to

appear or act on behalf of a plaintiff who has applied for permission to sue

in forma pauperis until the application for permission to sueformapauperies

has been decided by the Court. Further the Law Officer is not to undertake

the defence of any person to appear against the Government in any criminal

proceedings except in the criminal cases outside his jurisdiction where the

Legal Remembrance may grant him permission to appear against

Government on the specific condition that the work relating to the

Government cases in the Courts in the district which may be within his

jurisdiction does not suffer. Again a Law Officer is not expected to appear

4. Discussion in Orissa Law officers Manual, Cuttack Law Times, High

court Road, Cuttack, 2nd Edition, 1995, pp. 7-8. Theserules are also
applicable to other States in Indian Federation.
 101

for the defence in case in which he might have accepted brief prior to his

appointments unless permission is obtained from the Collector. Lastly, the

concerned Law Officer of a State is not to communicate directly or indirectly

to any person, any document or information which has come to his

possession in the course of his duties unless permission is obtained from

the Legal Rememberance.

Since 1985s two Administrative Tribunals - Central

Administrative Tribunal (CAT) and State Administrative Tribunal (SAT) were

established at the level of High Court. In order to defend the Government

in these Tribunals, Government Advocates and Standing Counsels were

duly appointed. They were working under the Law Ministry. In the month of

November 1995, the Government of Orissa have made it obligatory on the

part of the said officers to work under the Supervision and control of

Advocate General of the State. It was felt that due to absence of proper

coordination between the Department of Law and the said Officers, the

Government had to face defeat in several cases. There was also

unnecessary delay in the disposal of cases. So the latest notification of the

Government in the 1st week of November, 1995 has enhanced the position

and power of Advocate General. Moreover, when proposal for filing petitions

in Supreme Court are recommended to the State Government5

6, it is

obligatory to consult the Advocate General.

5. The Samaj, 7th November,1995

6. The Prajatantra 6th November, 1995

 102

The importance of Law Officers in the process of

administration of Justice has been amply highlighted in various judgements

delivered by Supreme Court and the State High Courts. In R.P. Singh Vs.

State of Uttar Pradeshfthe High Court of Uttar Pradesh took serious note

of the arbitrary removal of 26 State Law Officers at a single stroke of pen,

ban by the State Government on private practice of Law Officers,

instructions to the State Law Officers for maintenance of Diary and its

productions before Joint Legal Rememberancer, imposition of restriction on

State Law Officer both on Civil and Criminal side on their appearing on

behalf of Corporations, Public undertaking, Autonomous institutions,

Authorities and Boards by Government order.

The Hon’ble High Court considered the Law Officers as

holders of Public Office who could not be removed without any cause and

without giving them opportunities being heard in their defence. Some

procedure was to be adopted in case of termination of appointment of

Prosecutors where the consultation with the High Courts was necessary.

Further the Hon’ble High Court was of the opinion that while terminating the

engagement of state Law Office^it was mandatory to consult and get the

approval of the Advocate General of the State. It was also contended that

the order passed by the Advocate General of Uttar Pradesh in relation to

State Counsels could not be ignored by the Judicial Secretary-eum-Legal

7. A.D. Pravakar (ed) Allahabad Law Journal, Part 21 Vol. LXXXVIII

The A.I.R. Ltd., Congress Nagar, Nagpur, 1990, pp.977-1008.
 103

Remembrance, who is the Chief Law Officer of the Government. The court

held that the Governor could have amended modified or could have made

change in the rules but he has no power under Article 309 of the

Constitution of India to put an end to the services of 26 Law Officers,

particularly when the services still continued. So the rules applicable to any

public service, which have been continued under Article 313 of the

Constitution of India can not be substituted by mere administrative

instructions.

The decision of Supreme Court in Smt. Ram Sharma Vs. State

of Rajasthan and others8 (AIR 1967 S.C. 1910) has been cited where it

was held that the Government can not amend or Supersede Statutory Rules

by administrative instructions but if the rules are silent on any particular

point, the Government can fill up the gaps and supplement the rules and

issue instructions not inconsistent with the rules already framed. In case of

Union of India Vs. Majji Jangammayya and others9 (AIR 1977 SC 757) the

Supreme Court of India has given the similar views that, in the absence of

statutory rules that executive order or administrative instructions can be

made. Regarding the Government order compelling the Law Offices of Uttar

Pradesh to maintain diary and produce it before Joint Legal Remembrance,

the High Court treated the order as arbitrary and unreasonable. It was held

that the Joint legal Remembrances was just a subordinate Judicial officer

8. _lbid. P. 984

9. Ibid P. 985
 104

of the State, and no dignified counsel will accept the office of the State Law

Officer on the condition that his diary will be inspected by the subordinate

Judicial Officer of the State. The Advocate General who used to remain

present in the court could assess the work of the State Counsel to give

details of the cases in which may have appeared if necessary.

Although it is very difficult to obtain yearwise data regarding

the number of cases handled by the Advocate General from time to time in

various courts still then it can be observed that this office deals with a large

number of cases belonging to Writ, Civil, Criminal and Miscellaneous

categories. Of course, the percentage of cases belonging to different

categories may vary from State to State. From the data available from

Orissa regarding the number of cases dealt by the Office of the Advocate

General in the State High Court (Table V:l) clearly substantiates the

argument that the number of cases have been increasing from year to

10. It was not possible to get information regarding the approximate

number of cases dealt by this Office prior to 1991.
 105

Table V.l: Year wise data regarding the Approximate Number of

cases Dealt by the Advocate General of Orissa

Year Write Civil Cases Criminal Misc. Cases

cases Cases
(Original)
1991 9752 511 2461 12,000 above

1992 9900 540 2700 13,000 above

1993 9193 800 3000 13,070 above

1994 7495 852 2980 12,980 above

1995 9686 956 4002 14,000 above

1996 15142 1049 5673 17,070 above

1997 18609 5720 5441 19,180 above

1998 18,635 6000 5786 20,800 above

1999 18,805 6300 6344 22,332 above

Source: Office File of the Advocate General and data cited in The
Samaj' (Oriya Daily) on 23rd June 2000.

From the Table (V:l) cited above, it can be observed that in the

year 1991 the Number of Writ Cases, Civil Cases, criminal Cases and Misc,

cases were 9,752, 511, 2,461 and 12,000 respectively. There was marginal

increase in the number of various types of cases till 1995. Particularly in the

year 1996 the number of writ cases had increased to the tune of 15,142

from 9,686 in the year 1995. The number of civil cases had also increased
 106

to 5,720 in the year 1997 whereas in the year 1996, the number was 1049.

So far as the trend for criminal and Misc. Cases are concerned, the rise in

the number has not been phenomenal all through the period for which data

is available i.e. from 1991 to 1999.

Advocate General acting as Public Prosecutor:

The Office of the Public Prosecutor is a Public Office and that

too of considerable significance. He/She is not just an Advocate engaged

by the Government. A writ of Quo-Warranto may lie against his/her

appointment if in appointing him/her, statutory provisions of rules are

contravened. However, before highlighting about the issue of Advocate

General acting as Public Prosecutor a brief reference to the meaning of

Public Prosecutor will not be out of context. Generally, Public Prosecutor

means "any person appointed under Section 24 of the Cr. P.C. and includes

any person acting under the direction of a Public Prosecutor".11 Section

24 says "for every High Court, the Central Government or the State

Government shall, after consultation with the High Court appoint a Public

Prosecutors and may also appoint one or more Additional Public

Prosecutors for conducting in such Court, any prosecution, appeal or other

proceeding on behalf of the Central Government or State Government, as

the case may be".

11. R.Nagaratnam, Sohani’s The code of criminal Procedure, 1973, 18th

Edition, Vol.l, Law Book Company, Allahbad, PP. 63-65.
 107

The combined effect of this Clause and Section 24 is that

there are four categories of Public Prosecutors viz.

i. A Public Prosecutor appointed by the Central Government for

conducting any proceeding in the High Court under Section

24(1)

ii. A Public Prosecutor appointed by the State Government for

conducting and proceeding in the High Court under Section

24(1).

iii. Public Prosecutors and Additional Public Prosecutors

appointed by the State Government for every district under

Section 24(2) .

iv. Special Public Prosecutors appointed by the Central or State

Government for a particular case or class of cases under

Section 24 (6). Thus a Person appointed by the Government

to conduct all prosecutions on behalf of the State is called

'Public Prosecutor' ,12

It should be noted here that, although the expression 'Public

Prosecutor' includes any person acting under the direction of the Public

12. Judicial Dictionary, Law Book Company, 8th Edition. Sunder Patel
Marg. Allahabad, 1980, P. 785.
 108

Prosecutor but the choice of the person who may so work under the

direction of the Public Prosecutor is not limited to the Law Officers

mentioned in Section 495(1) of the 1998 code viz. Advocate General,

Standing Counsel, Government Solicitor, Public Prosecutor or other Officers

generally or specially empowered by the State Government in this behalf

and even extended to a Deputy Government Advocate Section 495 (old) did

not control the definition of a Public Prosecutor under this clause.

All Government Advocates acting under the direction of the

Advocate General will also be included within the definition and shall be

Public Prosecutors. The appointment of a Public Prosecutor under Section

24 by the State Government is very much different from an engagement by

the Public Prosecutor of another person to act under his direction to conduct

the prosecutions. So an Advocate engaged not by the State or any Public

prosecutor as the Legal Remembrance but by the Collector of Customs is

not a Public Prosecutor.

Appointment of Public Prosecutor:

The appointment of a Public Prosecutor requires not merely

an executive decision but an executive action which has to be under Article

166 of the Constitution in the name of the Governor,13 If a High Court

13. R. Nagaratnam, The Code of criminal Procedure 1973 Law Book

Company Sardar Patel Marg, Allahabad 18th Edition vol. I 1984 pp.
143-150.
 109

exercises jurisdiction in more than one State, the State in which the High

Court is located will not be entitled to appoint the Public Prosecutor. It is the

State which is a party to the appeal in the High Court which has the right

to prosecute or defend the appeal by appointing the Public Prosecutor.

There shall be a Public Prosecutor for conducting any

prosecution, appeal or other proceeding on behalf of the Central

Government or the State Government in the High Court. Where the accused

has been convicted in a trial and he prefers an appeal, then notice in the

appeal will go only to the Public Prosecutor of the State in which the

conviction took place not to the Public Prosecutor of the State in which the

offense was committed.

Where the Governor has appointed the Advocate General to

be Public Prosecutor, he can sign and file an appeal in the High Court. The

order appointing a Public Prosecutor need not in terms clothes him with the

power to launch a complaint. An officer appointed under this section for any

of the purposes mentioned there is a Public Prosecutor within the meaning

of section 2(v) and entitled to make a complaint.

The mere fact that a person has been directed to present an

appeal does not involve his appointment as Public Prosecutor for the

purpose of the case and it is not permissible to draw such an interference

by implication. If the Collector of customs appoints an Advocate to conduct

 110

cases under the sea custom Act (now under the Custom Act, 1962), he can

not be Public Prosecutor under Section (2) even if his appointment was

made with the approval of the Rememberancer of Legal Affairs.

Regarding the qualification of a Public Prosecutor, it should be

noted here that only advocates of not less than seven years would be

eligible for appointment as Public Prosecutor or Additional Public

prosecutor. And, a person who has been in practice as an Advocate for not

less than ten years would be eligible for appointment as special Public

Prosecutor. Lastly, a Person conducting a prosecution, on behalf of the

Government in a High Court in exercise of its original criminal jurisdiction,

would also be a Public Prosecutor.

Public Prosecutor Represents the State and not the Public:

Generally the purpose of a criminal trial is to investigate the

offence and to determine the guilt or innocence of the accused. The duty of

a Public Prosecutor is to represent not the public but the State and this duty

should be discharged by him fairly and fearlessly and with a full sense of

responsibility that attaches to his Position. The guilty or innocence of the

accused is to be determined by the Tribunals appointed by law and not

according to the test of any one else. So the Public Prosecutor must

discharge his duties not as a representative of the complainant interest in

 111

the prosecution, but as a representative of the State which is interested in

all the members of the society including accused14

Public Prosecutor only Assistant to Advocate General when latter

Appears:

A reference to the precise of Standing order of the

Government relating to the Law Officers of the Government (G.C. No. 4100

Law (General) dated 6th November 1951) made under Article 165 (2) of the

Constitution of India would show that one of the duty of the Advocate

General is to give advice to the Government Pleaders, Public Prosecutor

and the Crown Prosecutor and similarly the Public Prosecutor is regarded

as the assistant to the Government and in case of difficulty may apply to

that office for advice. He is also to advice the Advocate General whenever

in a case pertaining to his duties he is requested to do so. The Advocate

General is further to assist the High Court whenever required by the Hon’ble

Chief Justice in case of Special importance or difficulty on occasions of

inquiries made by the Court in to the conduct of legal practitioners. These

standing order make it clear that the Advocate General is the Chief Law

Officer of the Government and the Public Prosecutor is regarded as the

assistant to the Advocate General.

14. Decision of Ram Ranjan V.S. Emperor I.L.R. 42 case 422 Amrit Lai
V. Emperor I.L.R. 42 Case-957 See Notes to Section 286.
 112

Therefore, where Advocate Genera! is called upon to appear

in any case of importance, the Public Prosecutor can not be considered as

separately representing the state, and the Advocate General as a more

'amicus curiae’.15

The question is whether the State Government can direct the

Advocate General to present an appeal under Section 378 (i) of the code

without appointing them as Public prosecutor under Section 24(1).16 List

III of the seventh schedule to the Constitution of India in criminal procedure

including all matters included in the Cr.P.C. at the commencement of this

Constitution. Under Article 246 (2) Parliament has the power to legislate

with respect to any of the matters enumerated in list III. The Cr.P.C. 1973

has been enacted by the Parliament by virtue of the above power. As per

Section 378 (1) of the code if the State has to file an appeal before the High

Court against an order of acquittal, the State has to direct the Public

Prosecutor to Present the same. Public Prosecutor of a High Court is one

who is appointed by the State Government or the Central Government

under Section 24(1) of the code for conducting in that High Court any

prosecution, appeal or other proceeding on behalf of that Government. In

view of the definition contained in Section 2(U) of the code, a person acting

15. Tahadi Naryan V.S. State of Andhra Pradesh, A.I.R. 1960, Andhra
Pradesh at 13 (F.B), 1959 M.L.J. (Cr.) 524: 1960 Cr. L.J. 33.

16. Decisions of the Kerala High Court in a case State of Kerala V.S.
Kolarveetile Krishnan, 1981, 30,10.19-81.
 113

under the direction of a Public Prosecutor appointed under Section 24 will

also be a Public Prosecutor. The combined effect of all the above provisions

of the code is that if the State wants to file an appeal to the High Court from

an order of acquittal that has to be done only by a Public Prosecutor or a

person acting under his direction presenting the appeal to the Court. In

other words, no body else can present the appeal even if the State directs.

Section 378(1) being a provision which effects the liberty of the citizen, it

has to be construed sir icily. Nothing short of its full compliance has also to

be insisted. The procedure prescribed by the code has to be complied with

by all who invoke the criminal jurisdiction of a court. It has to be followed by

all who appear in such cases. The Advocate General of the state has no

exemption. As per Article 165(2) of the Constitution, 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 to or assigned to him. There is no

indication in Article 165 that when an Advocate General appears before a

civil or criminal court in the discharge of his duties as Advocate General, he

will not be bound by the procedure followed by that Court simply because

the rules framed by the State Government under Article 165(2) and (3) and

issued as per notification dated 1st November 1956 insist that the Advocate

General shall represent the Government in the High Court in important civil

and criminal proceedings. It will not give him the status and cloth him with

the powers of a Public Prosecutor of a High Court appointed under Section

24(1) of the Code. As long as the Advocate General is not appointed as

 114

Public Prosecutor under section 24(1) of the Code, he will not become a

Public Prosecutor of High Court. As far as Advocate General is concerned

no question of acting under the direction of a Public Prosecutor arises as

he is a Constitutional appointee.17

Although under Section 417 of the Old criminal Procedure

Code, it is the Public Prosecutor who is designated as a person to file an

appeal against an acquittal, the Advocate General also may do so if the

rules made by the State Government give him a required authority18

An Advocate General has the authority under Article 165 of the

Constitution read with the Andhra Pradesh Advocate General (Duties, Leave

and Remuneration) order 1961 to conduct criminal cases and he can be

called upon to appear in a criminal case either by the court or by the

Government, even if there is Public Prosecutor. In case of any flaw or

conflict in legal enactments, Advocate General should bring the same to the

notice of the Government. A private complain against some persons

including some officers of the State - the State also impleaded as a party

17. Details in V.R. Manohar (Editor). The Criminal Law Journals 1982,
All India Reporters Ltd., Nagpur, Volume 88, pp. 302-303.

18. Detailed discussion in V.R. Manohar and W.W. Chitaley, The AIR
Manual (Civil and criminal) 5th Edition, 1989 Vol.10, All India
Reporter Ltd., Post Box No. 209, Congress Nagar, Nagpur PP. 676-
678
 115

Advocate General who specifically so authorised is competent to appear on

behalf of those offices and there is no adverse interest.

The language of Article 165 does not expressly or by

implication prohibits the State Government from having any other counsel

to advice the Government. Therefore, appointment of a retired High court

Judge as legal advisor and senior counsel in the Supreme court for the

State Government does not conflict with the provision of Article 165 nor

does it tend to lower the dignity of the post of Advocate General.

An Advocate General is overall incharge of the State Counsel

in High Court. Hence it is incumbent upon the Judicial Secretary-Cum-Lega!

Remembrances in the State to adhere to his advice in so far as the state

Counsels are concerned. Advocate General could be asked by Government

to appear in Contempt Proceedings also.

The rules made by the State Government can not override

t
statuary provisions. Thus, departmental instructions to the Advocate

General by the Legal Department of the Government can not restrict his

statutory power under Section 92 of the code of Civil Procedure. If an

Advocate General is specifically authorised by the Governor to appear on

behalf of an accused in a criminal case (notwithstanding the provision of the

Kerala rules regarding duties, remuneration etc. of Advocate General) he is

bound to perform that function because that is constitutional duty fastened

 116

on him under Article 165. The general taboo created by the rules get

temporarily eclipsed until the specilic oidei issued by the Govemoi undet

Article 165 and Clauses 18 of part I of the rules is vacated.

Any concession made by the Government Pleader in the trial

court can not bind the government as it is obviously always unsafe to rely

on the wrong or erroneously or want on concession made by the Counsel

appearing for the State unless it is in writing on institution from the

responsible officer. But the same yardstick can not be applied when the

Advocate General has made a concession on behalf of the state since the

Advocate General makes the Statement with all responsibility.

In State of Rajasthan Vs. Smt. Manbhar 1981 Cr. P.R. 183

(SC)19 the question as to who should file an appeal against an order of

acquittal before the High Court on behalf of the State came up for

consideration before the Supreme Court. The case had arisen from

Rajasthan where the State Government by a notification dated 30.3.1974

appointed the Advocate General of the State to be a Public Prosecutor

under Sections 24 of the code. Then the Advocate General issued another

notification under Section 24 read with 52(a) directing that Law Officers of

the Government "including Deputy Government Advocate" shall have the

authority to act, plead and argue in all matters covered by the Code". The

Deputy Government Advocates accordingly presented the appeal from the

19. Ibid. P. 303

 117

order of acquittal. The High Court of Rajasthan refused leave under Section

378(3) of the Code on the ground that the appeal was presented by one

incompetent to do so setting aside the order refusing leave, the Supreme

Court held. It will be seen that under Sub Section (1) of Section 378, only

a Public Prosecutor can present an appeal to the High Court from an

original or appellate order of acquittal passed by any court subordinate to

the High Court, if so directed by the State Government. Again, for a person

to be a Public prosecutor it is necessary that he is either appointed as such

under section 24 or acts under the direction of a public prosecutor so

appointed.

The Supreme Court further held, "A Deputy Government

Advocate being a person so authorised under the notification dated 25th

September 1974 above mentioned is thus a Public prosecutor having full

competence to present an application under section 378 of the code. In this

view of the matter, the High court was not justified in throwing out the

application presented to it as one having been filed by a person

incompetent to do so".

A contrary view has been taken by the High Court of Mysore.

In Government of Mysore vs. Gulam Mohammed (AIR 1953 Ngs. 42) (1953

Crl. L.S. 1040) a preliminary objection was taken by the Counsel for the

accused that an appeal from acquittal presented by the Advocate General

of the state who was authorised generally to appear before the High Court
 118

in ali criminal cases was informed incompetent. Rejecting the contention the

High Court held, "we are not impressed with the argument but it is not

necessary for the purpose of this case to depend upon the provisions of the

code to decide the question, in view of the appeal being filed after the

constitution of India came into force and Article 165 States that the

Advocate General had to perform such duties as are assigned to him. It is

not and can not be disputed that if the duties assigned to him enable him

filing the appeal, the Objection must fail. With respect, we express our

inability to accept the above view of the High court of Mysore as

correct .

Right to Enter Nolle Prosequi:

Before discussing about this right of the Advocate General, it

is quite relevant here to refer to the meaning of the term 'Nolle Prosequi’.

‘Nolle Prosequi’21 is a proceeding in the nature of an undertaking by the

Plaintiff when he has misconceived the nature of the action or the party to

be sued or to for bear to proceed in a suit altogether or as to some part of

it or to some of the defendants. It differs from a 'non props' which puts a

Plaintiff out of the Court with respect to all the defendants (Wherton) in

criminal actions, the Public Prosecutor or the Government may enter a ‘nolle

prosequi’ which means an unconditional withdrawal of a criminal proceeding

against an accused. It is a finality to the proceedings.

20. Ibid P. 304

21. K.J. Aiyar, Judicial Dictionary, Op Cit.

 119

As defined in the legal Dictionary, a 'nolle proseque’ (to be

unwilling to prosecute) puts an end to the indictment on which the accused

person is brought before the Court. So the accused can not be proceeded

against on the same charges but the rule does not affect the legality or

otherwise of any proceedings taken there after by the Government against

him. It does not affect the judgement on the merits and it is not equivalent

to a pardon nor an acquittal, for the purpose plea of autrefois acquit.22

In England, the right to enter ‘nolle proseque' belongs to the

Attorney General. It is a valuable safeguard to the individual against the

continuance of vexatious prosecution.23 In India, since the administration

of justice is a State subject, the power is conferred not upon the Attorney

General of India but upon the Law Officers of the State. The power which

is statutory is shared by the Advocate General in the High Court and the

Public Prosecutors in Courts subordinate to the High Court under S.S. 333

and 494 of the criminal procedure code respectively. The points of

differences in the two cases can be explained in the following way:

(a) A Public Prosecutor can not withdraw from a prosecution

without the consent of the Court but the Advocate General

22. Quoted from Hari Mohan Sinha and Dheeraj Narula, Legal
Dictionary, Allahabad Law Agency, Allahabad, 1991, P. 362.

23. Mac Dermott, Protection from Power, 1957 pp.25,35 quoted from
commentary in the constitution of India, Op. Cit P.248.
 120

does not require the consent of the court i.e. High Court

session.

(b) The effect of entering 'nolle proseque' by the Advocate

General is to discharge the accused; it does not amount to

acquittal unless the Presiding Judge otherwise directs (S.333).

The effect of a withdrawal from prosecution by the Public

Prosecutor differs as it is made before the charge is framed,

it effects a discharge, in other cases, it amounts to acquittal.

In Article 165 (2) which deals with the duties of the Advocate

General, there is no indication that when an Advocate General appears

before a Civil or Criminal Court in the discharge of his duties as Advocate

General, he will not be bound by the Procedure followed by the Court.

Simply because the rules framed by the State Government under Article

165 (2) and (3) and issued as per notification dated 1st November 1956

insist that the Advocate General shall represent the Government in High

Court in important civil and criminal proceedings, it will not give him the

status and clothe him with the powers of a Public Prosecutor of the High

Court appointed Under Section 24 (1) of the code. As long as the Advocate

General is not appointed as a Public Prosecutor Under Section 24(1) of the

code he will not become a Public Prosecutor of the High Court.24 As far

24. M.L. Sarin (ed.) A Compilation of Crimes, 1986, Void, Vinod

Publication Post-1002, Church Road, Kashmere Gate, Delhi, P. 292.
as the Advocate General is concerned, no question of acting under the

direction of a Public Prosecutor arises as he is a Constitutional appointee

and it will be awkward for him. If the Advocate General is appointed as a

Public Prosecutor Under Section 24 (1) of the Code acting under his

directions, the additional Advocate General can function as Public

Prosecutor. As long as the Advocate General or the Additional Advocate

General is not a Public Prosecutor of the High Court, neither of them can

present an appeal to the High Court from an order of acquittal even if the

State Government directs.

Right of Pre-Audience:

There is no provision in the Article 165 corresponding to Article

76(3) under which the Attorney General shall have in the performance of his

duties the right of audience in all courts in the territory of India.25 The

Advocate General of a State has no Ex-Officio right of audience in the

courts of other State but in the particular State of which he is the Advocate

General. He has a right of Pre audience over all other Advocates Under

Section 8 (4) of the Bar Council Act. 1926 (1) and under O.U.R, 15 of the

Supreme Court Rules 1950.26 The Attorney General of India, after him the

Solicitor General of India and after him the Advocate General of a State

25. D.D. Basu, Constitutional Law of India Prentice Hall of India Pvt.
Ltd., New Delhi, 3rd Edition 1983 P. 167.

26. D.V. chitaley and S. Appu Rao, The Constitution of India with
Exhaustive, Analytical and Critical Commentaries, The All India
Reporter Ltd. 2nd Edition, Vol. Ill, P. 312.
 122

appearing as such had precedence over all other Advocates in the Supreme

Court. This provision does not find a place in the Supreme Court Rules

1966 Section 23 of the Advocate Act 1961 which now determines the right

of pre-audience. Under Sub-Section (1),(2) and (3) of that Section, the

Attorney General, after him the Solicitor General of India shall have the right

of Pre audience over all other Advocates. After him under Subsection (4),

the Advocate General of a state shall have the right of pre audience over

all other Advocates and the right of pre-audience among Advocate General

"Inter Se" shall be determined by their respective seniority.27 Section 50

of the Advocates Act 1961 does not repeal the whole of Section 8 of the Bar

Council Act 1926 but only so much of it as relates to the admission and

enrolment of legal practitioners.

A legal dispute had arisen between Bombay Bar Association

and Bombay Bar Council Vs. Mr. Tara Porewala (who was the Acting

Advocate General) in 1865 in the matter of pre-audience of the Acting

Advocate General. In that case it was conceded that prior to the

Government of India Act 1858 no right of preaudience at the Bar was

enjoyed by the Advocate General and therefore a fortiore no such right was

enjoyed by the Acting Advocate General. But of course before the Act of

1858, the Advocate General was the servant of the East India Company and

not of the crown. But in course of time a general right of Pre-audience has

27. The Advocate Act, 1961 (25 of 1961), modified upto the 1st Dec.
1966, The Manager of Publications, Delhi, 1966, pp. 14-15.
 123

been conceded to the Advocate General. Probably that was done by

treating his office as analogous to that of the Attorney General in England.

So far as the Acting Advocate General is concerned, he has been conceded

a right of Pre-audience when appearing for the Crown, but not when

appearing for a Private litigant.

It should be noted here that the Sub Section (3) of the

Government of India Act 1915 deals with an acting Advocate General. It

provides that on the occurrence of a vacancy in the Office of Advocate

General or during any absence or deputation of an Advocate General, the

Governor General-in-Council in the case of Bengal and the Local

Government in other cases may appoint a Person to act as Advocate

General, and the person so appointed may exercise powers of an Advocate

General until some person has been appointed by His majesty to the office

and has entered on the discharge of his duties or until the Advocate

General has returned from his absence or deputation as the case may be

or until the Governor General in Council or the Local Government as the

case may be, cancels the acting appointment. The above provision was the

first statutory recognition of an Acting Advocate General. Mr. Coltmun for

the Bar Association and S.R. Chimanlal sctalvad for Bar Council although

had referred this and argued that the above act provides that the person

appointed as acting Advocate General may exercise the powers of an

Advocate General. But they pointed out the amending act of 1927 (Section

2) which amended Section 8 of the Principal Act of 1926. Under this Act, in
 124

Sub Section 4 of the provisions it has been mentioned that the respective

rights of pre-audience of Advocates of the High Court shai! be determined

by seniority. Further, it provided that the Advocate Genera! shall have pre­

audience over all Advocates. The King’s Counsel shall have Pre-audience

over all advocates except the Advocate General.

So the above provision says that the respective rights of pre­

audience of Advocates of the High Court shall be determined by seniority

and the only qualification upon that is in the case of the Advocate General

and King's Counsel. They want to clarify it that Advocate General in that

provision means the actual holder of office and does not include the Acting

Advocate General. Although the Acting Advocate General has been entitled

to a right of Pre-audience in respect of crown business, actually he has

been enjoying it not by virtue of the office but by virtue of the principle that

in the king’s court the king’s business must come first.28

The Right of Advocate General to Address Either House of State

Legislature:

In British Parliament, Ministers who are members of one

House can not address the other House. Our Constitution has made a

departure in this respect and Article 88 and 177 confer upon every minister

a right to address the House or either House and to take part in

28. V.V. Chitaley, All India Reporter 1932 (Bombay Section), All India
Reporters Office, Nagpur, C.P. PP. 71-77.
Proceedings without right to vote. It also covers the case of the Minister

who belongs to one House addressing another House.

Likewise, these Articles also confer on the Advocate General

of the States, a right to take part in the proceedings of either House, or its

committees, but provide that, he will not vote by reason of the right

conferred by those Articles.29 Thus his power and position were extended

from merely technical to the politician arena.30 The right of a Minister to

address a House of which he is not a member and the right of the Advocate

General to address both Houses without being under an obligation to be

members of the legislature at all, would raise the Questions whether the

ministers and Law Officers are entitled to the privileges of the legislatures.

Article 105(4) and 190(4) expressly confer the privilege of the legislature on

such Ministers and Law Officers. For instance, on the 31st March 1967, Mr.
Harihar Bahinipati, a Member of the Legislate Assembly from Puri

Constituency of Orissa raised a privilege motion in the Orissa Legislative

Assembly on the question of Advocate General’s right whether he can take

part in the proceedings of the House? But the Hon'ble Speaker had not

allowed to discuss about that question because that was not a privilege

motion according to him and at that time he said that he will give his

29. H.M. Seervai, Constitutional Law of India, N.M. Tripathy pvt. ltd.
Bombay, 1968, P. 830.

30. V.V. Mishra, Evolution of the constitutional History of India (1773-

1947), Mittal Publication, B-2/19B, Lawrence Road, Delhi, 1987 P.
176.
 126

decision on that matter after examining the questions. So. on 21st July,

1967, the Hon'ble Speaker had given his rulings in the following way.

In course of discussion, the Speaker had referred31 to the

occasion when the Attorney General appeared in the Loka Sabha and took

part in the proceedings of the House. During discussion on the Gold control

Bill when several members in the Loka Sabha desired that the Attorney

General should be invited by the Speaker to appear before the House, it

was observed by the Speaker of Loka Sabha that he had no power under

the Rules to make a request to the Attorney General to address the House.

It was for the House to express its opinion. After the House had expressed

its desire it was for the Government to respond to it. If the Government was

of the opinion that there was no necessity and the majority of members felt

that there was no difficulty in calling him and he was to be called, then it

was upto the members to exercise their vote as they liked but no power was

vested in the Speaker to call or ask the Attorney General to come over to

the House to address.

The Speaker further observed that the Attorney General can

e >
appear in the House Suo Motu and the right to take part in the proceedings

of the House was given to him under Article 88 of the Constitution. On a

reference to Lok Sabha it was further observed that normally the Attorney

31. Detail discussion in Orissa Legislative Assembly Debates 21,7.67

PP.1-2.
 127

General attends the House when his presence was necessary. That was

arranged by the Government.

Secondly, as for the allotment of seat for the Attorney General

was concerned, no seat has been allotted to him. Whenever he attends the

House, he occupies one of the vacant seat. Article 88 corresponds to

Articles 177 so far as it relates to the Advocate General in the State. One

seat was to be made available for the Advocate General in the House.

The Speaker had further pointed out that "In our Legislative

Assembly, copies of all communications regarding Assembly sessions and

matters coming up before the House, which are sent to the members, are

also sent to the Advocate General. I think, all doubts will be set at rest if the

procedure obtaining the Loksabha is also followed here subject to any

decision above about the availability of the seat for the Advocate General

in this House".

On 15th September 198332 Mr. Bijaya Mohapatra, a Member

of the Legislative Assembly from Patkura Constituency of Orissa had raised

a point of order on the issue regarding the presence of Advocate General

in the House. On that matter Hon’ble Speaker had given his rulings by

stating that Article 177 is very clear. It deals with rights of Ministers and

32. Orissa Legislative Assembly Debates, The 15th September 1983, 8th
Assembly, Vol. VIII, No.7 Assembly Secretariat, Bhubaneswar.
 128

Advocate General in respect of their presence in the House. The Advocate

General even Suo Motu can come to the House or if the House wants it by

a motion. The practice and procedure of Parliament (by Kaul and

Shankdhar, Page 127, Volume-I) says Members may give notice of motion

asking the Advocate General to be present in the House in connection with

a certain Bill or Business before the House. Such notice are admitted and

it is for the House to take decision there on. The position is this. The

Advocate General may attend the House on his own or at the request of the

House or on a motion passed by the House if they wish to hear him on any

matter before the House.

Advocate General’s Function Relating to Advocate’s Welfare Fund and

Election to Bar Council of the State:

The Advocate General is the Ex-Officio Member and Chairman

of Advocates' Welfare Fund Trust Committee. This Trust Committee holds

the amount and assets belonging to the Advocate’s Welfare Fund in trust,

and it sends periodicals and Annual Report to the State Government and

the Bar Council in the prescribed manner. This Committee administers the

fund of the Advocates and has such other acts as are or may by required

to be done under this act and the rules made there under. The Secretary

of the Bar Council is the Ex-Officio Secretary of this Committee.33

33. Manmath Nath Mohanty, Advocates welfare Fund Act 1987 with
Rules Advocates Welfare Fund Trust Committee, Cuttack PP. 4-6.
 12ft

According to the Section 6(2) of the Indian Bar Council Act of

1926 (XXXVIII of 1926) and referring to this rules framed by the High Court

of Judicature, of Orissa.34 the Advocate General of Orissa has also certain

functions in the election of members to the Orissa State Bar Council. He

has to fix the day and hour for receiving the nomination papers, for scrutiny

of such nomination papers and above all the day and hours for counting of

votes. That nomination papers shall be scrutinised by the secretary on the

date and hour specified before by the Advocate General. The Secretary

may submit to the Advocate General any nomination paper to the validity

of which he may have any doubt and in this case the decision of the

Advocate General shall be final. Elections and all matters relating there to

provided for by the rules shall be conducted by the Advocate General with

the help of the Secretary or of such Person as the Bar council may appoint

to discharge the duties of the Secretary. The Secretary or such person may

however, with the approval of the Chairman appoint any person or persons

to assist him in conduct there of on the day and at the hour appointed for

the scrutiny and counting of votes, envelopes received from the voters not

later than the day and the latest hour fixed for the Poll or deposited in the

ballot box provided on the day and during the hours fixed for the Poll shall

be opened one by one and if the declaration paper is not in order, he shall

reject the declaration paper and shall keep it attached to the corresponding

ballot paper cover unopened. If the Advocate General is satisfied that the

34. Rules of the High Court of Orissa 1948 Volume II, Superintendent,
Orissa Govt. Press, Cuttack 1967, Pp. 35-41.
declaration paper is in order, he shall put the corresponding ballot paper

cover separately to be opened after the scrutiny of all the declaration

papers. No person shall be present at the scrutiny and counting of votes

except the Advocate General of Orissa, the Secretary and such person or

persons as the Advocate General may appoint to assist him. It should be

mentioned here that only the candidates may remain present if they so like.

In the event of an equality of votes the Secretary shall draw lots in the

presence of the Advocate General for the purpose of deciding the priority

between candidates having the same number of votes. A list of candidates

declared elected to the council shall be prepared and signed by the

Secretary and submitted by him to the Advocate General who shall clarify

the same by his signature and the same shall be filed as of record by the

Secretary. Copies thereof shall be published in the Orissa Gazette and sent

to the Advocate General and President, High Court Bar Association to be

affixed as they may direct. It should be noted here that, at any time within

30 days from the date of publications aforesaid of the said list, the Advocate

General may refer in writing to the Committee Constituted by three

members to be nominated by the chief Justice, two of whom shall be judges

of the High court and one, a member of the Bar other than the Advocate

General, for any question relating to the validity of the eleiction of the

candidate declared to have been elected to the Council.

 131

In case of the punishment of Advocates 35 for their

misconduct under section 35 of the State Bar Council Act, the disciplinary

Committee of the State Bar Council shall fix a date for the hearing of the

case and shall cause a notice there of to be given to the Advocate General

of the state and to the Advocate concerned. After hearing the views of

concerned Advocate and Advocate General of State, the Disciplinary

Committee may prescribe any punishment to the concerned Advocate.

Although, it is not binding upon the Advocate General of State to appear

before the Disciplinary Committee of the State Bar Council, he may appear

himself or through any Advocate on his behalf before the Disciplinary

Committee.

Under Section 37 of the Bar Council Act, any person or the

Advocate General of State have aggrieved by the order of the disciplinary

Committee of the State Bar Council, within Six days of the date of

communication of the order to him, he may appeal to the Bar Council of

India against the decision or orders of State Bar council. Likewise, under

section 38 of the Bar Council Act, any person or Advocate General of State

may appeal to the Supreme Court against the decision of Bar Council of

India or State Bar Council.

35. Enrolment And Legal Ethics of Advocates Orissa State Bar Council,
cuttack-1999, pp. 5-8.
 Under Section 9(1) of the Orissa University Act of 1989, the

Advocate General of Orissa is an Ex-Officio member of the Senate.36 In

Utkal University, there are some Deans of various faculties like Arts,

Science, Commerce, Medicine, Education, Engineering and Law. According

to the amended rule of the Syndicate of Utkal University 1990 (Act 56) the

Advocate General of Orissa is a Dean member of the faculty of Law.37

Legal Services and Authorities Act, 1987 passed by Parliament

covers Legal Aid, Lok Adalats and Legal Assistance Services. The twin
institutions38 are intended to secure the operation of the legal system in

order to promote social justice, particularly the weaker section of the society

who because of economic and other disabilities cannot afford the cost of

delays involved in the normal court proceedings. The Advocate General has

an important role at state level to look after this important aspects. Hence

the Advocate General of Orissa has been made a member of State Law

Sahayak Advisory Board.39

36. Mentioned in 54th Annual Report 1996-97, Utkal University,

Maharaja Sriram Chandra Utkal University Press, P.3

37. Ibid, p. 18.

38. B.R. Agarwala, Our Judiciary, National Book Trust, India, New Delhi,
1993, p. 165.

39. The Samaj , 6.12.1996.

 The Advocate General has the duty to represent the

Government in the High Court in Proceedings Civil or Criminal Original or

Appellate in which Government is a party provided of course he has been

so directed specially by the Government. It is equally true that the Advocate

General is debarred from accepting a brief in any Criminal case in any

court. But it is to be remembered that the Advocate General is bound to

perform such other duties of a legal character as the Governor would assign

to him from time to time.40

The Advocate General is also bound to discharge the functions

conferred on him by or under the Constitution or any other law for the time

being in force. These are Constitutional duties which the Advocate General

is bound to discharge. Therefore, if the Advocate General is specifically

authorised by the Governor to appear on behalf of a person, who is an

accused in a criminal case not withstanding the above provisions in the

rules, the Advocate General is bound to perform that function because that

is a constitutional duty fastened on him under Article 165 of the constitution

notwithstanding contrary provision in the rules.

The Governor of the State of Kerala had directed the Advocate

General to appear and defend the chief Minister in a criminal matter. (T.A.

40. M.V. Pylee, Constitutional Government in India, Fourth Edition, 1984,

S. Chand and Company Ltd., Ram Nagar, New Delhi, p.410
 134

Rajendran Vs. P.V. Aggalan).41 It could not be decided whether Advocate

General acted either legally or illegally with malafied intention in doing so

on behalf of the Chief Minister.

In the case cited above involving the Chief Minister of Kerala,

the petitioner Mr. T.A. Rajendran had challenged the legal steps taken by

the Advocate general of the State in defending the Chief Minister in a

criminal case. He argued that the Advocate General had acted illegally and

with malafide intention on behalf of Mr. Karunakaran.42 The Petitioner in

this connection had referred to specific rules regarding the duties of

Advocate General which have been already discussed above.

Placing reliance on the rules, the petitioner submitted that in

as much as these provisions inhibit the Advocate General in defending,

prosecuting criminal cases in the High court on behalf of an accused

person, the Advocate General should be declared to have acted illegally in

filing the case (M.C. 37/85) on behalf of Sri Karunakaran. He further

submitted that the Advocate General acted malafide in not impleading the

State as a party to the said Case. The petitioner held that the Advocate

General by the said intentional act has effectively circumvented the existing

41. V.R. Manohar(ed) The Criminal Law Journal 1986, Cri. L.J. All India
Reporter Ltd, Post Box No. 209, Nnagpur, P. 1287.

42. Case No.1885 Vide G O. (Ms) 26/85/law dt.11.2.85 in the Chief

Judicial Magistrate, Trivandrum.
 135

provisions regarding his duties and functions. Further he submitted that

these arguments at the first blush are attractive but on the deep probe in to

them, it can be seen that they are hollow without any substance.

The provisions aforesaid do show that the Advocate General

has the duty to represent the Government in the High Court in proceedings

- Civil or criminal, original or appellate in which Government is a party

provided of course, he has been so directed specially by the Government.

It is equally true that the Advocate General is debarred from accepting a

brief from any private person in any criminal case in any Court. These

provisions in the rules have created a taboo in the Advocate General

accepting a brief from any private person in any criminal case in any Court

of his own accord. But it should be remembered that the Advocate General

is bound to perform such other duties of a legal character, the Governor

would assign to him from time to time. He is also bound to discharge the

functions conferred on him by or under the constitution or any other law for

the time being in force.

These are constitutional duties, the Advocate General is bound

to discharge, and therefore, if the Advocate General is specifically

authorised by the Governor to appear on behalf of a person who is an

accused in a criminal case notwithstanding the above provisions in the

Rules, that the Advocate General is bound to perform that function because

that is a constitutional duty fastened on him under Article 165 of the

Constitution. The general taboo created by tire Rules thus get temporarily

eclipsed until the specific order issued by the Governor in the exercise of

power under Article 165 of the Constitution and Clause 18 of Part I of the

Rules is vacated.

As the order of the Governor is not under challenge, the

Government order issued by the Governor in the exercise of the

constitutional powers vested in him, it can not be said that the Advocate

General acted either illegally or with malafide intention in filling M.C. 134/85

in the court on behalf of Sri Karunakaran. According to the Rule in force in

West Bengal,43 by reason of his office, the Advocate General is debarred

from:

a) advising or holding briefs against the state;

b) defending accused persons in criminal prosecution;

c) advising private parties in cases in which he is likely to be

called on to advise government; and

d) accepting appointment as Director in any company without

sanction of the Government.

We can discuss about the status of Advocate General under

Article 165 Clause 3 and also refer to the Government of India Act 1935 in

43. D.D. Basu, Commentary in the Constitution of India, Volume 3 S.C.

Sarkar & Sons Pvt. Ltd., College Square, Calcutta, 1963 P. 249
 137

order to have a clear cut perspective regarding the type of changes which

have been introduced.

Under the Government of India Act 1935, the Office of the

Advocate General had no connection with the political changes in the

Provincial Government. He enjoyed a tenure during the Pleasure of the

Governor acting in his individual judgement. The reason behind this security

of tenure were given thus. "Our main object is to secure for the provincial
government legal advice from an Officer, not merely well qualified to tender

such advice but entirely free from the trammels of political or party

associations; whose salary would not be votable who would retain his

appointment for a recognised period of years irrespective of the political

fortunes of the government or governments with which he may be also
associated during his tenure of office".44

Under Sub Section (4) of Section 55 of the Act of 1935, the

Governor had to act in his individual judgement in the exercise of his

following powers in relation to the Advocate General (i) appointment; (ii)

dismissal; (iii) remuneration. But under the constitution the position is

different. Sub section 4 of Section 55 of the Act of 1935 has not been

adopted. As a result in all the above matters, the Governor is to act with the

Advice of Ministers. Further, the Salary of the Advocate General is not

44. C.F.J.P.C. Repoii vol. I para 400 P. 239 Quoted from Commentary
Constitution of India Volume 3 D.D. Basu S.C Sarkar & Sons, C
pvt. Ltd. Calcutta, p. 249.
 ! 3B

charged upon the consolidated fund of the state and will thus be subject to
vote of the Assembly.45 On this point, the position of Advocate General

differs from that of the Attorney General. The Advocate General will not thus
be independent of the Government of the Day as he was under the Act of
1935.46

45. M. Hidayatullah (Ed.) Constitutional Law of India, Vol.2 Arnold

Heinnemann (India) Pvt. Ltd. Sabdarjang Enclave, New Delhi, 1986.

46. D.D. Basu, Op. Cit., P. 249.