The Wire: New Delhi: Saturday, July 04 ,2020.
One must remember that the Attorney General's post is, at the best and worst of times, 'for' and not just 'of' India.
A terse notification from the Union Ministry of Law and Justice (UMLJ) on June 29 said, “The President is pleased to re-appoint Shri K.K.Venugopal, Senior Advocate as Attorney General for India for a period of one year w.e.f. 1st July, 2020.”
The emphasis is mine.
When I read the phraseology of the notification, I was relieved. It correctly reproduces the one adopted in Article 76 of the Constitution: Attorney General for India.
Despite the President’s correct and meticulous reference to the AG’s office, other authorities have not been so fastidious.
The UMLJ itself in its latest Annual Report refers to his office as the Attorney General of India. The Ministry’s website too uses ‘of’ rather than ‘for’, while referring to the AGI’s office at several places.
The Delhi high court’s division bench of two judges too in 2017 had referred to the office as the Attorney General of India while declaring that it is not a public authority for the purpose of Right to Information Act. The Delhi high court’s single judge, however, used the two expressions ‘for’ and ‘of’ interchangeably to describe the AGI’s office, although he was inclined to declare it as a public authority, and therefore, bound by the RTI Act.
The Constituent Assembly Debates show that Members themselves used these words interchangeably to describe the AGI’s office, although the adopted provision clearly mentions ‘for’ rather than ‘of’.
What difference does it make, whether one uses ‘for’ or ‘of’ to describe the AG’s office, one may ask. Although both words are prepositions, the choice of ‘for’ by the framers of the Constitution shows that they wanted the AGI to define his duties, keeping the interests of the country at large, rather than the compelling demands of his profession. That the occupant of the post is the AG of India goes without saying, and is implied.
That the framers did not choose ‘for’ to describe the office of the Chief Justice of India (Article 124) or the Comptroller and Auditor-General of India (Article 148) makes it clear that they envisaged a different role for the AGI.
Although the President appoints the CJI and the CAG, both have to take an oath or affirmation, according to the form set out for the purpose in the Third Schedule. The AGI, on the contrary, does not have to take an oath or affirmation, before starting his duties after his appointment.
The choice of the word ‘for’ rather than ‘of’ by the framers, in this context, therefore, assumes significance. The debates in the Constituent Assembly show that the framers specifically rejected a proposal to make the AGI’s tenure coterminous with the Prime Minister who formally advises the President to appoint him.
A Constituent Assembly meeting in 1950. Credit: Wikimedia Commons
Constituent Assembly debates
The Constituent Assembly of India debated Article 76 of the present Constitution (Article 63 of the Draft Constitution on January 7, 1949. Naziruddin Ahmad, a member moved an amendment which would require the Attorney-General to resign upon the resignation of the Prime Minister, but he could continue in office until his successor is appointed or he is re-appointed.
He argued that the Draft Constitution (under Draft Article 145) mandated the Advocate General in the states to resign upon the chief minister’s resignation. Hence, a similar provision needed to be made for the Attorney General, he suggested. He argued that the Attorney General and the Advocate-General must have the same footing in the Constitution.
“There is no reason why a difference should be made between the Attorney-General of India (emphasis mine) and the Advocate-General of a State. It may be, I do not know, that this difference was not intentional. It may be due to an accidental omission rather than deliberate policy. It is for this reason that I have attempted to draw the attention of the House to the difference and I suggest that the difference should be eliminated.”
Another member, K.T. Shah moved a proposal to make the remuneration of the Attorney General subject to the law made by the Parliament, instead of the President. This would ensure a consistent salary that would not be subject to the discretion of the President. Shah agreed that the President would act on the advice of the ministers; but even so, he suggested, the salary and allowances of the Attorney General should be determined by an Act of Parliament, and should not, therefore, be varied in any particular term while, a given individual holds office, to the prejudice of that individual.
The third member, Prabhudayal Himatsingka opposed both the amendments. According to him, there is certainly difference between the Advocate General of a province and the Attorney General of India (emphasis mine).
“Sub-clause (4) provides that the Attorney-General shall hold office at the pleasure of the President and I think that should serve the purpose. If there is a change in the Ministry that necessarily need not mean the going out of office of the Attorney-General also, but in the provinces with the change of ministry the Advocate-General should be required to retire unless he is appointed again.”
B.R. Ambedkar, the chairman of the Drafting Committee, while replying to the debate, said: “Sir, I do not know whether any reply is necessary”.
This, provoked Ahmad to say: “No, not at all! There has been no debate on the amendment. It would be unfair to the House to be called upon to vote without any reply. Rather than have the amendment put to vote without any consideration, I would beg leave of the House to withdraw it.”
Subsequently, the House refused to permit withdrawal of the amendment, moved by Ahmad, and negatived it. The House then negatived Shah’s amendment too and adopted the Draft Article 63 without any changes.
B.R. Ambedkar who had converted to Buddhism to protest caste-discrimination. Credit: Wikimedia Commons.
It appears in retrospect that Ambedkar did not find it necessary to reply to the amendments moved by the two members because the phraseology of the adopted provision said it all. Ahmad’s concerns were duly taken care of by amending the Draft Article 145 of the Constitution to ensure that the Advocate General for the State, (as referred to under Article 165 of the present Constitution) has the same footing as the Attorney General, at the state level, except in one respect.
Under Article 76(3), the Attorney General has the right of audience in all courts in the territory of India. Article 165 has no similar provision in the case of the Advocate General for the state.
.M. Munshi, another member of the Constituent Assembly pointed out that the position of the Advocate General is entirely different from that of the Attorney General. In his own province, being the Advocate General, he has audience before all the courts in the province; but as regards other provinces, he has no locus standi as Advocate General, and therefore, will be governed by the provisions of the Legal Practitioners’ Act.
Munshi thus saw no reason why there should be a special provision enabling Advocate General to appear in another state.
Also, some members of the Constituent Assembly, while debating the Draft Article 145, asked why India could not adopt the British practice, where the Advocate General has the status of a minister. The response of other members, including of Ambedkar to this suggestion was indifference.
Interestingly, Ashoke Kumar Sen, the law minister during the tenure of Prime Minister Jawaharlal Nehru, revived this proposal and wanted to combine the offices of the law minister and the AGI in one person, with the backing of the government. With the proposal causing immense outrage, the Nehru government quietly buried it.
AGI office as public authority
Article 76(2) states that 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.
Considering the nature of his functions as envisaged under the constitution, had the division bench of the Delhi high court understood why the framers used the word “for India” to refer to the Attorney General’s office, it would not have hesitated to declare it as a public authority within the purview of the Right to Information Act.
U.S. Attorney General William Barr’s signature is seen on a copy of his letter to U.S. lawmakers stating that the investigation by Special Counsel Robert Mueller has been concluded and that Mueller has submitted his report to the Attorney General in Washington, U.S. March 22, 2019. REUTERS/Jim Bourg
The appeal against the Delhi high court’s 2017 judgment is still pending in the Supreme Court. On April 30 last year, the Supreme Court deplored the UMLJ for its failure to file its counter-affidavit in this case, as the sole respondent, despite having been granted the last opportunity. The Registrar’s court, which heard the matter that day, declined to give another opportunity to the respondent to do so. The case has not been listed after that.
The UMLJ has stated that in 2017, it had sent 28 new cases on different subjects for the opinion of the Attorney General for India, Solicitor General of India and Additional Solicitor General of India and that opinions on all matters were received and have been forwarded to the respective ministries/departments of the government.
It cannot be denied that the AGI and other law officers would have given their opinions in their professional capacities involving the fiduciary relationship between a lawyer and a client. But the communication between them cannot be entirely termed as privileged, and therefore, out of bounds for the applicants under the RTI Act.
Surely, the public has a right to know the nature of advice tendered by the AGI to the government on legal matters, and whether the government of the day complied with it. After all, when the same law officers, representing the government, argue matters in the courts, the hearings are open to the public. If the infrmation that the law officers have disagreed with the government in their advices is in the public domain, it would enhance their and the government’s credibility, as it would be a test of their professional freedom, granted by the government of the day.
As Justice Vibhu Bakhru of the Delhi high court noted as a Single Judge in R.K.Jain v. Office of the Attorney General for India in 2015:
“…The role of the AGI is not limited to merely acting as a lawyer for the Government of India as is contended by the respondent; the AGI is a constitutional functionary and is also obliged to discharge the functions under the Constitution as well as under any other law. Merely because the bulk of the duties of the AGI are advisory, the same would not render the office of the AGI any less authoritative than other constitutional functionaries.”
Although Justice Bakhru’s judgment has been set aside by the division bench of the high court in 2017, its expeditious reconsideration by the Supreme Court in the pending appeal will ensure that the incumbent of the office of the AGI is able to fulfil the role envisaged by the constitution “for India”.
It would be a lasting contribution of the current AGI, Venugopal if he uses his last one year in office to make his office a vibrant institution for India, as envisaged by the framers by making his functions transparent and accessible to the common man.
One of the reasons Venugopal cited for declining to continue as the AGI beyond one year was that there is no precedent for a 90-year old to have continued as the AG anywhere in the world.
But there are valid precedents to follow if one wishes to make the office of the AGI a powerful body in our democracy, if one considers the examples of AGs in Israel and Canada.
.JPG)
.JPG)
