A person who is qualified to be appointed as Judge of the Supreme Court is appointed as Attorney General of India (AGI) by the President under Article 76 of the Indian Constitution and forms part of Union Executive. The Attorney-General shall hold office during the pleasure of the President and shall receive such remuneration as the President may determine.
Important Functions & Duties of AGI:
- Provide legal advice to Government of India (Gol) on all important matters.
- Appear in Supreme Court or in any High Court on behalf of Gol (including suits, writ petitions, appeal and other proceedings).
- Represent Gol in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
- Defend government’s initiatives and moves if they are challenged on grounds of constitutionality or otherwise.
- Article 88 of the Constitution confers on AGI the right to speak, right to participate in the proceedings of either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member.
- However, in such proceedings, the Attorney general is not entitled to vote in such proceedings.
Restrictions on All Law Officers Including AGI
They Shall Not:
- Hold briefs against government of India or its affiliates.
- Advice any party against the Government of India or any Public Sector Undertaking.
- Defend an accused person in a criminal prosecution, without the permission of the Government of India
- Accept appointment to any office in any company or corporation without the permission of the Government of India.
- Advise any Ministry or Department of Gol or any statutory organization or any Public Sector Undertaking unless a reference is received through the Ministry of Law and Justice, Department of Legal Affairs.
AGI “Public Authority” Under RTI Act:
- 2013-Chief Information Commission ruled that since the office of AGI did not come within the definition of “State” under Article 12, it did not have the authority to affect the legal relations of others and hence would not come under the purview of the RTI Act. The Commission also said that AG’s office, being manned by a single person, did not have the infrastructural wherewithal to meet the requirements of the RTI Act.
- 2015 Single Judge Bench of Delhi High Court ruled that AGL is a public authority as he performs the functions required under Article 76(2) of the Indian Constitution and fulfils the definition of public authority provided under RTI Act and there is no need to apply the test of “state” under Article 12.
- 2017 Division Bench of Delhi High Court overruled the earlier judgment because: -Attorney General has a lawyer-client relationship and in this fiduciary capacity, the advice tendered by AGI to the Indian Government cannot be disclosed under RTI Act. AGI is not a functionary reposed with any administrative or other authority which affects the rights or liabilities of persons.
Concerns:
- Exemption from disclosure under RTI Act.
- Selective approval from central government to represent in criminal proceedings of private clients which mostly includes cases pertaining to members affiliated to ruling party.
- As per Law Officer (Conditions of Service) Rules, 1987, a law officer shall be appointed for three years and can be again re-appointed for further three years. So, this often led to politicisation of the office of Attorney General of India.
