Part VI: The States

Advocate-General for the State

Article 165: Advocate-General for the State

--- Original Article ---

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State 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 Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

Explanation

Article 165 of the Indian Constitution is dedicated to defining the appointment, duties, and tenure of the Advocate-General for the state. The Advocate-General holds a position of immense importance as the principal legal advisor to the state government, guiding it on legal matters that affect state policies and governance.

Key Provisions

• Appointment and Qualifications: The Governor appoints the Advocate-General, selecting a candidate qualified to be a High Court judge, ensuring that only highly experienced legal professionals are eligible for this role.
• Legal Duties and Functions: The Advocate-General advises the state government on legal matters, appears in significant cases, defends state laws in court, and ensures state actions comply with constitutional principles.
• Tenure and Remuneration: The Advocate-General holds office at the pleasure of the Governor and receives remuneration as determined by the Governor, allowing for flexibility based on the government’s needs.

Amendments and Case Law

There have been no direct amendments to Article 165, but court rulings have shaped the duties and obligations of the Advocate-General, emphasizing their role as a legal adviser rather than a partisan figure.

Real-Life Example

• During the debates on farm laws in Punjab, the Advocate-General was instrumental in advising the government on legal measures to counter the central laws, considering both state autonomy and constitutional constraints.

Historical Significance

The ‘pleasure of the Governor’ clause reflects the delicate balance between political and legal considerations in state governance. This mechanism ensures that the Advocate-General’s role remains aligned with the state’s political leadership.

Legislative History

Article 165 of the Indian Constitution, initially drafted as Article 145 on June 1, 1949, during the Draft Constitution deliberations, was later incorporated into the final Constitution of India.

Debates and Deliberations

In the discussion, Mr. Naziruddin Ahmad proposed an amendment to grant the Advocate-General the right to appear in all courts within their State and, when representing their State, in all courts in India, including the Supreme Court. This was based on Article 63(3) of the Draft Constitution, which grants similar rights to the Attorney-General of India. He argued that without such a provision, practical difficulties related to enrollment and authorization could arise.

Shri K. M. Munshi opposed the amendment, noting the functional difference between the Attorney-General of India and provincial Advocate-Generals, and argued that their appearances should be regulated by the Legal Practitioners' Act.

Prof. Shibban Lal Saksena suggested adopting the British model where the Advocate-General has the status of a Minister. Dr. P. K. Sen supported this idea, emphasizing the need for the Advocate-General to have a higher status to influence legislation effectively.

Dr. B. R. Ambedkar accepted replacing clauses (3) and (4) of Article 145, stating that the Advocate-General would hold office at the Governor's pleasure and receive remuneration as determined by the Governor. The House adopted this amendment and the article was adopted, as amended.

References

• The Constitution of India, Article 165
• Supreme Court Judgments on Advocate-General’s role
• Commentaries on Constitutional Law by H.M. Seervai and Granville Austin