HOW THE ATTORNEY GENERAL OF INDIA REMAINS CENTRAL TO THE FUNCTIONING OF THE INDIAN REPUBLIC
HOW THE ATTORNEY GENERAL OF INDIA REMAINS CENTRAL TO THE FUNCTIONING OF THE INDIAN REPUBLIC
Introduction
The Attorney General of India (AGI), established under Article 76 of the Constitution, is the chief legal advisor to the Government of India and the First Law Officer of the country. Occupying a constitutional position that straddles all three organs of the state—Executive, Legislature, and Judiciary—the AGI is both a representative of the government and a guardian of constitutional morality. This duality makes the office central to the functioning of the Indian Republic, while also exposing it to unique ethical and institutional challenges.
Constitutional Status and Powers
The framers of the Constitution envisioned the AGI as a bridge between law and governance. The office derives its authority and privileges from Articles 76, 88, and 105.
Article 76: Empowers the President to appoint the AGI, who must be qualified to be a Supreme Court judge.
Article 76(3): Grants the AGI the right of audience in all courts of India, ensuring that the government’s legal position can always be heard.
Article 88: Enables the AGI to participate in parliamentary proceedings and committees, though without voting rights.
Article 105: Extends to the AGI the privileges and immunities of Members of Parliament.
This framework ensures that the AGI’s advice and advocacy influence policy-making, legislative debates, and judicial decisions alike.
Advisory and Representative Roles
The AGI performs two major constitutional functions:
Advisory Role
Provides legal advice to the Government of India on constitutional, legislative, and administrative issues referred by the President.
Advises ministries on the legality of executive actions, international treaties, and statutory interpretations.
Presents legal opinions on presidential references under Article 143.
Representative Role
Represents the Union Government in the Supreme Court and High Courts.
Defends the government in major constitutional cases, including federal disputes and public interest litigations.
Acts as the guardian of public interest, as seen when former AGI K. K. Venugopal appealed to the Supreme Court in 2021 to protect children’s rights under the POCSO Act.
Ensuring Constitutional Balance
The AGI’s participation across institutions gives the office a quasi-constitutional conscience:
In the Executive: Guides the government to act within the constitutional framework and advises on legislative proposals.
In the Legislature: Contributes legal expertise during parliamentary debates and clarifies complex constitutional provisions.
In the Judiciary: Upholds the Constitution by defending state actions that conform to law, while refraining from defending unconstitutional measures.
Thus, the AGI operates as the interface between governance and legality, ensuring that executive power remains subordinate to constitutional values.
Limitations and Safeguards of Impartiality
To maintain neutrality, the Constitution imposes several restrictions on the AGI:
Cannot represent or advise any party against the Government of India.
Cannot defend accused persons in criminal proceedings without government approval.
Cannot accept corporate directorships without prior consent.
While the AGI is not a full-time government servant, these checks ensure that private practice does not compromise constitutional impartiality.
Challenges to Independence
Despite these safeguards, the AGI faces significant challenges:
No Fixed Tenure: Holding office “during the pleasure of the President” can make the AGI susceptible to executive pressure.
Political Expectations: As an appointee of the government, the AGI often faces the dilemma between loyalty to the executive and fidelity to the Constitution.
Public Scrutiny: The AGI’s actions, particularly in politically sensitive cases, are often perceived through partisan lenses.
However, the recent practice of prescribing a fixed term, as seen in R. Venkataramani’s three-year appointment (2022–2025), enhances stability and institutional independence.
Significance in Democratic Governance
The AGI’s centrality lies in the balance it maintains between legal propriety and executive necessity. Through this:
The rule of law is upheld against arbitrary state power.
Judicial dignity is protected by acting as a gatekeeper in contempt proceedings.
Constitutional values—liberty, equality, and justice—are infused into the executive’s legal conduct.
Ultimately, the AGI embodies the moral compass of constitutional governance, ensuring that India’s democracy remains legally sound and ethically grounded.
Conclusion
The Attorney General of India is not merely the government’s lawyer but the Constitution’s conscience-keeper. Positioned uniquely at the intersection of law, politics, and morality, the AGI safeguards the republic from executive overreach while enabling lawful governance. The true strength of this office lies not in its powers but in its commitment to the Constitution and the rule of law—the bedrock of the Indian Republic.
PRACTISE QUESTIONS
The Attorney General of India functions as a gatekeeper against frivolous contempt actions, balancing judicial dignity with free speech. Explain with examples.
“Absence of a fixed tenure weakens the independence of the Attorney General.” Do you agree? Examine recent trends in the appointment of AGIs.
