Q.16 Discuss the role of the Attorney General of India as the Chief Legal Adviser to the Government of India, highlighting some recent cases of the Supreme Court of India.
21,Dec 2024
Posted By : SPM IAS Academy
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The Attorney General of India (AGI) is the chief legal advisor to the Government of India, a role established under Article 76 of the Indian Constitution. Appointed by the President, the AGI must be qualified to serve as a Supreme Court judge and represents the government in major legal matters. The AGI’s responsibilities include advising the government on complex legal issues, representing it in the Supreme Court and high courts, and safeguarding public interest in cases of constitutional significance. The role of the Attorney General goes beyond advocacy, embodying a commitment to constitutional integrity, public accountability, and legal guidance.
Constitutional Role and Functions of the Attorney General of India
1. Advisory Role to the Government:
The AGI advises the executive on legal matters of national importance, ensuring that government actions conform to constitutional principles. According to Article 76(2), the AGI must render legal opinions on matters referred by the President or government agencies.
For instance, Attorney General Goolam E. Vahanvati advised the government on sensitive issues such as the 2G spectrum allocation case, where he guided the government on matters related to public resource allocation and legality, illustrating the AGI’s critical role in advising on governance.
2. Representation in the Supreme Court:
Under Article 76(3), the AGI has the right to appear in any court in India, representing the government in major cases. This representation is especially crucial in defending government policies and upholding laws passed by Parliament.
In the Naz Foundation v. Government of NCT of Delhi (2009), which decriminalized Section 377 on homosexuality, Attorney General G.E. Vahanvati argued in favor of upholding constitutional values. This case marked a turning point in recognizing LGBTQ rights, with the AGI’s stance aligning with the judiciary’s progressive interpretation.
3. Duty to the Public Interest:
The AGI plays a critical role in representing the public interest in cases that affect constitutional rights. While the AGI is expected to defend the government’s actions, there are instances where they have balanced government interests with public welfare.
For example, Attorney General M.C. Setalvad, during his tenure, defended fundamental rights in cases like A.K. Gopalan v. State of Madras (1950), where he navigated the complexities of preventive detention laws. Setalvad’s role in such cases set a precedent for balancing individual freedoms with state policies.
4. Participation in Parliamentary Proceedings:
The AGI is allowed to participate in parliamentary proceedings under Article 88 but without voting rights. This provision allows the AGI to clarify legal positions on legislative issues when called upon by Parliament.
Attorney General L.N. Sinha was known for his legal acumen in Parliament, especially during debates on the Emergency (1975–77) and the 42nd Amendment, where his inputs were sought on constitutional issues. Sinha’s contributions in Parliament emphasized the AGI’s advisory role in upholding legal clarity on national matters.
Recent Supreme Court Cases and the Role of the Attorney General
1. Sabarimala Temple Entry Case (2018):
In Indian Young Lawyers Association v. State of Kerala, the Supreme Court ruled in favor of women’s entry into the Sabarimala Temple, citing constitutional equality. Attorney General K.K. Venugopal represented the government, but the then-Solicitor General argued that religious customs should be protected, creating a balanced debate on faith versus fundamental rights.
This case highlighted the AGI’s role in representing government interests while navigating sensitive religious and social issues, underscoring the AGI’s need to balance constitutional mandates with cultural values.
2. Right to Privacy Judgment (2017):
In the landmark case of Justice K.S. Puttaswamy v. Union of India, the Supreme Court declared the right to privacy a fundamental right under Article 21. Attorney General Mukul Rohatgi argued that privacy was not explicitly protected by the Constitution, representing the government’s stance on Aadhaar’s necessity.
This case illustrates the AGI’s role in arguing critical government policy, even when the interpretation of rights is at stake. Although the court ruled privacy as a fundamental right, the case underscored the AGI’s duty to advocate on behalf of the government.
3. Babri Masjid-Ram Janmabhoomi Case (2019):
The Babri Masjid-Ram Janmabhoomi case was a historic verdict on religious rights and property claims. Attorney General R. Venkataramani (who succeeded K.K. Venugopal) represented the government’s interests and coordinated between the litigants and the judiciary, ensuring a fair and transparent legal approach to a socially sensitive matter.
This case reflected the AGI’s role in representing the government without exacerbating communal tensions, emphasizing the AGI’s responsibility to maintain national unity while advocating legally sound positions.
4. 2G Spectrum Case (2012):
In the 2G Spectrum case, Attorney General G.E. Vahanvati represented the government in defending the spectrum allocation policy, which faced accusations of corruption and procedural lapses. The Supreme Court, however, canceled the allocations, citing the need for transparent governance.
This case illustrates the AGI’s role in high-stakes policy defense, where government actions are subjected to judicial scrutiny. The AGI’s involvement highlighted the balance needed between executive policy-making and legal accountability.
Challenges and Limitations of the Attorney General’s Role
1. Balancing Government Loyalty and Public Interest: ○ The AGI’s dual responsibility to the government and the Constitution can create ethical dilemmas, especially in politically sensitive cases. The AGI must ensure that loyalty to the government does not override public interest and constitutional values.
2. Absence of Fixed Tenure and Independence: ○ The AGI serves at the pleasure of the President, without a fixed tenure, which can raise concerns about independence. Eminent AGs like M.C. Setalvad argued for institutional safeguards to maintain impartiality, ensuring the AGI’s counsel remains constitutionally sound.
3. Handling Controversial Legislation: ○ The AGI often has to defend controversial laws, such as those related to preventive detention or restrictions on free speech, which may be contested on constitutional grounds. Balancing such government policies with fundamental rights is a recurring challenge for the AGI.
The Attorney General of India plays an indispensable role as both the government’s legal representative and an advisor with a duty to uphold constitutional integrity. Eminent AGs have shaped the role’s legacy, balancing legal advocacy with constitutional fidelity. The AGI’s participation in cases like the Right to Privacy exemplifies the delicate balance between duty to government and public accountability.
