Article 76

Article 76 of the Constitution of India establishes the post of the Attorney-General for India, who serves as the chief legal advisor to the Government of India and the highest law officer of the country. This constitutional office is vital for ensuring that the government’s actions remain within the bounds of law and the Constitution, thereby reinforcing the principles of legality, justice, and constitutional governance.

Constitutional Position and Appointment

Under Article 76(1), the President of India appoints the Attorney-General for India. The office is modelled on the British system, where the Attorney-General is the principal legal representative of the Crown. In India, the Attorney-General represents the Union Government and performs both advisory and representative functions in legal matters of national significance.
The appointment is entirely at the discretion of the President, acting on the advice of the Council of Ministers, ensuring that the Attorney-General’s selection reflects both professional competence and confidence of the government.

Qualifications for Appointment

As per Article 76(1), a person is qualified to be appointed as the Attorney-General if they are qualified to be appointed as a Judge of the Supreme Court of India. This means the individual must:

• Be a citizen of India, and
• Have been a judge of a High Court for at least five years, or
• Have been an advocate of a High Court for at least ten years, or
• Be, in the opinion of the President, an eminent jurist.

These qualifications ensure that the office is occupied by a person of high legal acumen and integrity.

Tenure and Conditions of Service

The Attorney-General holds office during the pleasure of the President, meaning there is no fixed term of appointment. The President may remove the Attorney-General at any time or accept their resignation when tendered.
While the Constitution does not specify the remuneration, the Attorney-General’s salaries and allowances are determined by the government, typically on a case-to-case basis. The post is not a political office but a professional advisory position rooted in constitutional duty.

Duties and Functions of the Attorney-General

The duties of the Attorney-General, as prescribed under Article 76(2) and various statutes, include:

• Advising the Government of India on legal matters referred to them by the President.
• Performing legal duties assigned by the President.
• Representing the Union Government in cases before the Supreme Court and High Courts.
• Appearing on behalf of the Government in references made by the President to the Supreme Court under Article 143 (Advisory Jurisdiction).
• Discharging other functions conferred by the Constitution or any law in force.

In essence, the Attorney-General functions as the chief legal defender of the Union, ensuring that the government’s legal positions are sound, consistent with the Constitution, and in harmony with the rule of law.

Powers and Rights

The Attorney-General enjoys several important powers that facilitate the execution of these duties:

• Right of Audience: Under Article 76(3), the Attorney-General has the right of audience in all courts of India.
• Right to Participate in Parliament: According to Article 88, the Attorney-General has the right to participate in the proceedings of both Houses of Parliament and their committees, though without voting rights. This allows the Attorney-General to clarify legal positions and advise Parliament on constitutional or legislative issues.
• Representation in Legal Matters: The Attorney-General may represent the Government in international legal disputes and arbitral proceedings involving India.

Limitations and Restrictions

While the Attorney-General occupies a high constitutional position, the office is bound by certain limitations to maintain neutrality and propriety:

• The Attorney-General cannot appear against the Government of India or represent any private client in cases where the Government’s interests are involved.
• The Attorney-General cannot hold any office of profit under the Government of India.
• The Attorney-General is expected to maintain political neutrality and uphold the Constitutional values above partisan considerations.

These restrictions ensure that the Attorney-General’s role remains impartial and aligned with the public interest rather than political convenience.

Important Judicial Pronouncements

The Indian judiciary has, through various cases, clarified the role, powers, and responsibilities of the Attorney-General:

• K. Veeraswami v. Union of India (1991): The Supreme Court highlighted the importance of the Attorney-General’s consent in prosecuting certain public officials, underlining the significance of this constitutional role in maintaining checks and balances.
• State of Karnataka v. Union of India (1977): The Court discussed the advisory nature of the Attorney-General’s functions, affirming that the office acts as the government’s legal conscience.
• Harish Salve v. Union of India (2001): The case reaffirmed the Attorney-General’s duty to act with independence, ensuring legal advice is grounded in constitutional propriety and not political expediency.

These decisions underscore the Attorney-General’s position as a bridge between the executive and the judiciary, ensuring the rule of law governs executive conduct.

Notable Attorneys-General of India

Since Independence, several distinguished jurists have held the office and contributed significantly to the evolution of Indian constitutional law:

• M. C. Setalvad (1950–1963): The first Attorney-General, instrumental in establishing the office’s independence and credibility.
• Niren De (1968–1977): Played a key role during the Emergency era.
• Soli Sorabjee (1989–1990, 1998–2004): Renowned for his advocacy in human rights and constitutional law.
• Milon K. Banerjee, G. E. Vahanvati, Mukul Rohatgi, and K. K. Venugopal are among others who have contributed to shaping modern constitutional jurisprudence.

Related Constitutional Provisions

The functions and privileges of the Attorney-General are supported by other articles within the Constitution:

• Article 74: Defines the relationship between the President and the Council of Ministers.
• Article 75: Concerns the appointment and responsibilities of Ministers.
• Article 88: Provides the Attorney-General the right to speak in and attend parliamentary proceedings.

At the State level, Article 165 establishes a parallel office — the Advocate-General, who serves as the chief legal advisor to the State Government.

Significance and Constitutional Role

The Attorney-General holds a pivotal constitutional position as the legal guardian of the Union Government. The office serves several critical purposes:

• Upholding the Rule of Law: Ensures that all executive and legislative actions conform to constitutional principles.
• Legal Advisor to the State: Provides impartial and expert guidance on complex legal and constitutional matters.
• Representation of the Union in Courts: Defends the government’s position in major judicial proceedings affecting public policy and constitutional interpretation.
• Maintaining the Balance of Power: Acts as a constitutional link between the executive and judiciary, promoting the harmonious functioning of both.

Contemporary Relevance

In contemporary India, the Attorney-General continues to play a crucial role in issues of constitutional interpretation, human rights, and public interest litigation. The office remains indispensable in shaping the legal landscape of governance, ensuring that executive decisions remain lawful and just.

Conclusion

Article 76 creates a constitutionally significant institution — the Attorney-General for India — that symbolises the legal conscience of the government. Tasked with advising the Union on matters of law and defending its position before the judiciary, the Attorney-General serves as a vital protector of the rule of law and constitutional integrity.