Part V: The Union
Chapter I: The Executive
Article 76: Attorney-General for India
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Clause (1): The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
Clause (2): It shall be the duty of the Attorney-General to give advice to the Government of India on legal matters and perform other duties of a legal character, as referred or assigned by the President.
Clause (3): In the performance of his duties, the Attorney-General shall have the right of audience in all courts in the territory of India.
Clause (4): The Attorney-General shall hold office at the pleasure of the President and receive remuneration as determined by the President.
Explanations
Article 76 of the Indian Constitution establishes the role of the Attorney-General for India, who serves as the principal legal advisor to the Government of India. The provisions outlined ensure that the executive branch has access to experienced legal counsel for navigating legal complexities at a national level.
Clause Headings and Explanation
1. Clause (1): Appointment and Qualifications
The President of India appoints the Attorney-General, who must be qualified to serve as a Judge of the Supreme Court. This ensures that the position is held by highly skilled legal professionals.
Real-life Example: M.C. Setalvad, India's first Attorney-General, played a crucial role in shaping legal opinions during the country’s early years as a republic.
2. Clause (2): Duties and Functions
The Attorney-General provides legal advice to the Government of India and performs additional legal functions as assigned. This role encompasses responsibilities under the Constitution and any prevailing laws.
Historical Significance: The office, modeled after the British system, ensures that the government receives expert legal guidance.
3. Clause (3): Right of Audience
The Attorney-General has the right to appear in all Indian courts, including the Supreme Court and High Courts. This guarantees representation for the government in crucial legal matters.
Amendments and References: No significant amendments have altered this clause, as it remains vital to the Attorney-General’s role.
4. Clause (4): Tenure and Remuneration
The Attorney-General serves at the President's pleasure and is compensated as determined by the President. This structure allows for flexibility and continuity in office.
Example: Esteemed legal professionals such as Soli Sorabjee have served multiple terms under different administrations.
Historical Significance and References
The Attorney-General’s role, modeled after the British legal system, provides the Indian government with legal expertise on critical issues. The position has been pivotal in shaping key rulings, including the Kesavananda Bharati case, which defined the basic structure doctrine in Indian jurisprudence.
Legislative History:
Article 76, originally drafted as Article 63 of the Draft Constitution, was deliberated and incorporated into the Constitution on 7th January 1949.
Debates and Deliberations:
Mr. Naziruddin Ahmad proposed an amendment suggesting that the Attorney-General retire when the Prime Minister resigns, aligning with practices in the United Kingdom. This proposal was rejected, retaining the original draft where the Attorney-General serves at the President's pleasure.
Professor K.T. Shah argued for parliamentary oversight of the Attorney-General’s salary, but this was also rejected in favor of flexibility under the President’s discretion.
Ultimately, the Assembly upheld the original draft, reinforcing the independence and continuity of the Attorney-General’s office.