SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Maha Seedmen Association, … vs Union Of India, Ministry Of … on 9 April, 2018

1
wp6590.15.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

WRIT PETITION NO.6590 of 2015

1. Maha Seedmen Association,
a Society/Trust registered under
the Societies Registration Act
the Bombay Public Trusts Act,
having its Regd. Office at Ishika
Complex, Near Madhuban Hotel,
Jalna, through its Authorized
Representative
Mr. Anish Navneetlal Mehta.

2. Mr. Anish Navneetala Mehta,
Aged about 49 years,
Occupation – Business,
R/o D-8/1, M.I.D.C. Amravati.

3. Shiv Agro Seeds,
through its Proprietor
Rajesh Gokuldas Shukla,
Aged about 49 years,
Occupation – Business,
R/o Camp Road, Pulgaon,
Tq. Deoli, Distt. Wardha.

4. M/s. Haritkranti Seeds Company,
through its Partner,
Ravindra Sumastisa Khadakpurkar,
Aged about 59 years,
Occupation – Business,
R/o Aahinsa Marg,
Deulgaon Raja,
Tq. Deulgaon Raja,
Dist. Buldana.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
2
wp6590.15.odt

5. Tirupati Seeds,
through its Partner,
Harish Shamsundar Mundada,
Aged about 50 years,
Occupation – Business,
R/o Mundada Industrial Estate,
Malegaon, Tq. Malegaon,
Distt. Washim.

6. Mahalaxmi Seeds Processing Plant,
through its Proprietor,
Sanjay Madanlalji Chitlange,
Aged about 51 years,
Occupation – Business,
R/o Rajurkar Compound,
Tilak Road, Akola,
Tq. Distt. Akola.

7. Shraddha Seeds Processing Plant,
through its Proprietor,
Eknath Sitaram Jadhav,
Aged about 4 years,
Occupation – Business,
R/o D.P. Road, Chikhli,
Tq. Chikhli, Distt. Buldana. … Petitioners

Versus

1. Union of India,
Ministry of Agriculture,
through its Secretary,
Krushi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
3
wp6590.15.odt

2. The State of Maharashtra,
Department of Agriculture,
through its Secretary,
Mantralaya,
Mumbai-32.

3. Maharashtra State Seed Certification
Agency,
through its Director,
National Highway No.6,
Murtizapur Road,
Akola. … Respondents

Shri Sunil Manohar, Senior Advocate, assisted by
Shri Shantanu Khedkar, Advocate, for Petitioners.
Shri Ulhas Aurangabadkar, Assistant Solicitor General of India,
with Ms M.R. Chandurkar, Advocate, for Respondent No.1.
Shri J.Y. Ghurde, Assistant Government Pleader for Respondent
Nos.2 and 3.

CORAM : R.K. DESHPANDE M.G. GIRATKAR, JJ.

DATE OF RESERVING THE ORDER : 20TH FEBRUARY, 2018

DATE OF PRONOUNCING THE ORDER : 9TH APRIL, 2018

ORDER (PER R.K. DESHPANDE, J.) :

1. The challenge in this petition is to the validity of Rule 6(b)

of the Seeds Rules, 1968 empowering the Certification Agency to

prescribe the outline procedure for submission of applications and

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
4
wp6590.15.odt

for growing, harvesting, processing, storage and labeling of seeds

intended for certification till the end, to ensure that seed lots

finally approved for certification are true variety and meet

prescribed standards for certification under the Seeds Act, 1966 or

the Rules framed thereunder.

Challenge to the validity of Rule 6(b) of the Seeds Rules :

2. Shri Sunil Manohar, the learned Senior Advocate, assisted

by Shri Shantanu Khedkar, Advocate, appearing for the petitioners,

submits that the provision of Rule 6(b) of the Seeds Rules is

ultra vires the provision of Section 25(2)(f) of the Seeds Act, which

empowers the Central Government to make rules to be published in

the official gazette by issuing notification in respect of the form of

application for grant of a certificate under Section 9, the

particulars, it may contain, the fees which should accompany it, the

form of certificate and the conditions subject to which the

certificate may be granted. According to him, the requirement

contained in Rule 6(b) of the Seeds Rules can only be prescribed by

the Central Government in exercise of its rule-making power

conferred by Section 25(2)(f) of the Seeds Act and it cannot be the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
5
wp6590.15.odt

subject-matter of delegation to the Certification Agency, as has

been done by Rule 6(b) of the said Rules.

Prima facie consideration :

3. We find that prima facie case is made out in respect of

challenge to the validity of Rule 6(b) of the Seeds Rules being

ultra vires the provision of Section 25(2)(f) of the Seeds Act.

4. Hence, Admit.

5. Shri Aurangabadkar, the learned Assistant Solicitor

General of India, waives service of notice for the respondent No.1;

and Shri Ghurde, the learned Assistant Government Pleader,

waives service of notice for the respondent Nos.2 and 3.

Objection to grant declaration as to invalidity :

6. The first question, which arises for consideration, is

whether notice to the Attorney-General is required to be issued to

consider the challenge to the validity of Rule 6(b) of the Seeds

Rules, 1968. Though on the last occasion we passed an order that

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
6
wp6590.15.odt

the matter shall be decided finally at the stage of admission, no

notice was issued to the Attorney-General. Shri Aurangabadkar,

the learned Assistant Solicitor General of India, submits that this

notice is mandatory. We put a specific question to

Shri Aurangabadkar and the Senior Advocate Shri Sunil Manohar

to point out to us any provision under the Constitution of India or

any other law for the time being in force, requiring this Court to

issue notice of challenge to the provision in the Central enactment

or the Rules, Regulations, Control Order, Manual, etc., issued

therein to the Attorney-General of India or in case of any State

enactment or Rules, Regulations, Control Order, Manual, etc.,

issued therein to the Advocate-General of the State.

Provision requiring notice to be issued to the Attorney-General
or the Advocate-General :

7. It is conceded by the learned counsels appearing for the

parties that there is no provision either in the Constitution of India

or in any other law for the time being in force, except

Order XXVII-A of the Code of Civil Procedure containing the

requirement of issuance of notice in a case where the question as is

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
7
wp6590.15.odt

referred to in Clause (1) of Article 132 read with Article 147 of the

Constitution of India is involved to issue notice of challenge either

to the Attorney-General in case of the Central enactment or to the

Advocate-General of the State in case of the State enactment. We

have no hesitation to accept this position.

Questions posed by the Court :

8. We then put up the following questions to both the

learned counsels :

(1) Whether the requirement of Order XXVII-A of the
Code of Civil Procedure is so mandatory that the Court
becomes incompetent to grant declaration of
constitutional invalidity of such provision in the absence
of such notice being issued to the Attorney-General of
India or the Advocate-General of the State, as the case
may be?

(2) Whether the provision of Order XXVII-A of the
Code of Civil Procedure also applies to the proceedings of
writ petition under
Article 226 or 227 of the Constitution
of India, in the light of Section 141 of the Code?

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
8

wp6590.15.odt

We granted one week’s time to the learned counsels to

address us on these questions.

Decisions relied upon or referred to :

9. On return after a week, Shri Manohar invited our

attention to the Division Bench decision of the Bombay High Court

in the case of Heman Santlal v. State of Bombay, reported in

AIR 1951 Bombay 121, wherein the provision of Section 6(4)(a) of

the Bombay Land Requisition Act, 1948 was challenged as

contravening the provision of the Constitution, more particularly

Articles 19(1)(f), 31 and 32, and, therefore, a declaration was

sought that the said provision became void under Article 13 of the

Constitution of India.

10. In the aforestated case, the State of Bombay was a

party-respondent, but the question was considered in para 7 of the

said decision as to whether it was incumbent upon the Court to

give notice to the Advocate-General of the proposed challenge

which involved the question as to the interpretation of the

Constitution. It is held in the said decision that in every case,

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
9
wp6590.15.odt

which involves a question referred to in Rule 1 of Order XXVII-A of

the Code of Civil Procedure, notice must be given by the Court to

the Advocate-General or the Attorney-General, as the case may be.

It was not the question raised and decided in the said decision as to

whether the provision of Order XXVII-A of the Code of Civil

Procedure would be attracted even in a case where writ jurisdiction

of the High Court is invoked under Article 226 or 227 of the

Constitution of India.

11. In another decision of the Division Bench of the Bombay

High Court in the case of Samarth Transport Co. Private Ltd. v. Y.B.

Chavan, Chief Minister, Government of Bombay and others, reported

in AIR 1961 Bombay 80, it was held that if the Court is not

prima facie satisfied about the challenge raised, it may not be

necessary to issue such notice.

12. In the decision of the Apex Court in the case of Basant Lal

v. State of U.P. and another, reported in (1998) 8 SCC 589, the

High Court had granted a declaration that the provision of

Section 125(2) of the Code of Criminal Procedure, 1973 was

::: Uploaded on – 09/04/2018 10/04/2018 02:00:33 :::
10
wp6590.15.odt

ultra vires Article 14 of the Constitution of India without notice to

the Advocate-General. In para 3 of the said decision, it is held as

under :

“3. It apparently needs to be stated that statutory
provisions are to be assumed to be constitutional, that
constitutionality is to be considered only where absolutely
necessary, that a statute cannot be struck down unless
notice has been given to the Attorney-General in the case of
a Central statute, as here, or the Advocate-General in the
case of a State statute. According to learned counsel for the
husband-appellant, the contention that Section 125(2) was
unconstitutional had not even been raised in the pleadings.
There is no doubt that the judgment must be set aside
insofar as it holds that Section 125(2) is unconstitutional.”

The Apex Court set aside the declaration granted by the

High Court and the matter was remanded back to the High Court

for consideration afresh.

13. In another decision of the Apex Court in the case of State

of Gujarat v. K.V. Joseph, reported in (2001) 2 SCC 156, it is held in

para 9 as under :

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
11

wp6590.15.odt

“9. Be it noted that the judgment under appeal was
delivered by the Appellate Bench of the High Court on the
basis of the letter written by the then in-charge
Anti-Corruption Bureau and t he resultant effect of which is
the declaration of para 4 of the Vigilance Manual as
ultra vires by reason of the same being said to be in direct
conflict with the statutory provisions of
Section 7, 13, 17
and
19 of the Prevention of Corruption Act. No notice,
however was sent to the Advocate-General of the State
before such a declaration was effected and the same thus
cannot but be termed to be not sustainable.”

The Apex Court held that while considering the question

of grant of declaration of para 4 of the Vigilance Manual as

ultra vires by reason of the same being said to be in direct conflict

with the statutory provisions of Sections 7, 13, 17 and 19 of the

Prevention of Corruption Act, no notice was sent to the

Advocate-General of the State and, therefore, the judgment

delivered by the Appellate Bench of the High Court was not

sustainable.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
12

wp6590.15.odt

14. In another decision of the Apex Court in the case of

People’s Union for Civil Liberties (PUCL) and another v. Union of

India and another, reported in (2003) 4 SCC 399, the challenge

considered was to the constitutionality of the provision of

Section 33-B of the Representation of the People Act, 1951, which

was held to be ultra vires the provision of Article 19(1)(a) of the

Constitution of India regarding freedom of expression. It was the

specific contention raised that the notice was required to be issued

to the Attorney-General, as the vires of the Act was challenged. In

para 75 of the said decision, the issue is dealt with as under :

“75. The contention that notice is required to be issued to
the Attorney-General as vires of the Act is challenged, is of
no substance because “Union of India” is the
party-respondent and on its behalf learned Solicitor-General
is appearing before the Court. He has forcefully raised the
contentions which were required to be raised at the time of
hearing of the matter. So, service of notice to the learned
Attorney-General would be nothing but empty formality and
the contention is raised for the sake of raising such
contention.”

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
13

wp6590.15.odt

The Apex Court held that the Union of India is a

party-respondent and on its behalf, the learned Solicitor General

appeared before the Court and, therefore, the service of notice to

the Attorney-General would be nothing but empty formality.

15. In the decision of the Division Bench of the Bombay High

Court in the case of Vinayak Hari Kulkarni and others v. State of

Maharashtra and another, reported in 2009(4) Mh.L.J. 242, it is

held in para 9 that if the Court desires to consider the

constitutional validity of the proviso to Rule 2 of Chapter XVII of

the Bombay High Court Appellate Side Rules, 1960 as ultra vires

Article 348(1)(a) of the Constitution of India, then it is obligatory

for the Court to issue notice to the Advocate-General.

Position emerging from the aforesaid decisions :

16. The learned counsels appearing for the parties have not

only accepted the position but have urged as under :

(1) Except the decision of the Division Bench of this
Court in the case of Heman Santlal, cited supra, in none of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
14
wp6590.15.odt

the decisions, there is reference or reliance is placed upon
the provision of Order XXVII-A of the Code of Civil
Procedure to hold that notice of challenge to the
Attorney-General in case of the provision in the Central
enactment, or to the Advocate-General of the State in
respect of challenge to the State enactment is must.

(2) In none of the decisions, except the decision in
Heman Santlal’s case, there is any reason as to why and
under what provision of law it becomes mandatory to
issue such notice.

(3) In Heman Santlal’s case, it was neither a question
raised nor decided as to whether the provision contained
in Order XXVII-A of the Code of Civil Procedure would
also apply in case where such challenge is raised or
required to be considered on merits in a writ petition
under
Article 226 or 227 of the Constitution of India
where normally the Central Government in case of
challenge to the Central enactment, or the State
Government in case of challenge to the State enactment,
is made a party-respondent.

17. In the light of the aforesaid position, Shri Sunil Manohar,

who happens to be the former Advocate-General of the State of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
15
wp6590.15.odt

Maharashtra, has urged that the questions posed by this Court are

of great significance and none of the decisions either of the Apex

Court or of this Court is expounding on it. He submits that though

this Court has always been mechanically issuing such notices, at no

point of time there was exposition on this topic. He submits that

no attempts are made to understand the reason, purpose or spirit

behind such exercise, at least by any authoritative pronouncement.

The field is vergine. He, therefore, submits that the exact role of

the Attorney-General and the Advocate-General under the

Constitution of India needs to be highlighted particularly with

reference to the requirement of giving them notice of hearing

before granting a declaration about invalidity or unconstitutionality

of any provision contained either in the Constitution or in the

Central or State enactment or of any subordinate legislation,

including that of any statutory instrument.

Contention :

18. The argument of Shri Manohar, the learned Senior

Advocate, is that even in the absence of the provision of

Order XXVII-A of the Code of Civil Procedure, it is considered to be

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
16
wp6590.15.odt

the wholesome mandatory requirement by way of practice or

convention adopted by the Courts and, therefore, it would be

applicable to the proceedings of a writ petition under Article 226 or

227 of the Constitution of India involving such challenge.

Shri Aurangabadkar, the learned Assistant Solicitor General of

India, adopts the same view.

The decision on one aspect :

19. In the absence of any direct pronouncement to the

contrary by the Apex Court, we are bound by the decision of the

Division Bench of this Court in Heman Santlal’s case where the

challenge to the provision of Section 6(4)(a) of the Bombay Land

Requisition Act, 1948 was considered and it was held to be void

under Article 13 of the Constitution of India, as contravening the

provision of Articles 19(1)(f), 31 and 32 therein. The Division

Bench specifically considered the fact that it was a State legislation

and the State Government was a party-respondent in the said writ

petition. Placing reliance upon the provision of Rule 1 of

Order XXVII-A of the Code of Civil Procedure, it was held that

giving of such notice of challenge to the Attorney-General or the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
17
wp6590.15.odt

Advocate-General, as the case may be, is must. We have, therefore,

no hesitation to hold that the requirement of Order XXVII-A, Rule 1

of the Code of Civil Procedure is mandatory and that the High

Court cannot declare any provision in the Central or the State

enactment as unconstitutional without issuing a notice of its

challenge to the Attorney-General or the Advocate-General, as the

case may be. This does not mean that there is a bar to uphold the

constitutionality of the provision in such enactments without such

notice.

The questions required to be considered :

20. The questions still remain – (1) whether such requirement

is mandatory when such challenge is considered in a writ petition

under Article 226 or 227 of the Constitution of India, where

normally the Central or the State Government is party-respondent

through concerned Department, and (2) whether such notice is

also required to be given to consider the constitutionality or the

otherwise validity of any subordinate legislation in the form of any

statutory instrument, as is referred to in Order XXVII-A, Rule 1-A of

the Code of Civil Procedure.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
18

wp6590.15.odt

Relevant provisions in the Constitution and other laws :

Code of Civil Procedure, 1908 :

21. Section 113 of the Code of Civil Procedure deals with the

reference to the High Court and it runs as under :

“113. Reference to High Court.– Subject to such
conditions and limitations as may be prescribed, any Court
may state a case and refer the same for the opinion of the
High Court, and the High Court may make such order
thereon as it thinks fit:

Provided that where the Court is satisfied that a case
pending before it involves a question as to the validity of
any Act, Ordinance or Regulation or of any provision
contained in an Act, Ordinance or Regulation, the
determination of which is necessary for the disposal of the
case, and is of opinion that such Act, Ordinance, Regulation
or provision is invalid or inoperative, but has not been so
declared by the High Court to which that Court is
subordinate or by the Supreme Court, the Court shall state
a case setting out its opinion and the reasons therefor, and
refer the same for the opinion of the High Court.”

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
19

wp6590.15.odt

If any Civil Court subordinate to the High Court is of the

view that the provision under any Act, ordinance or regulation or

of any provision contained in it, found to be necessary for the

disposal of the case before it and is required to be declared as

invalid or inoperative, it has to state its reasons and refer the

matter for the opinion of the High Court in terms of Section 113,

reproduced above. Such requirement is mandatory and takes away

the jurisdiction of any Civil Court to deal and finally adjudicate

upon this aspect. Such jurisdiction is vested in the High Court.

22. The provision of Order XXVII-A of the Code of Civil

Procedure dealing with the suits involving a substantial question of

law as to the interpretation of the Constitution or as to the validity

of any statutory instrument, being relevant, is reproduced below :

“1. Notice to the Attorney-General or the
Advocate-General.– In any suit in which it appears to the
Court that any such question as is referred to in clause (1)
of
article 132, read with article 147, of the Constitution, is

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
20
wp6590.15.odt

Order XXVII-A involved, the Court shall not proceed to determine that
Suits involving a question until after notice has been given to the
Substantial
question of law Attorney-General for India, if the question of law concerns
as to the
interpretation of the Central Government and to the Advocate-General of the
The Constitution
or as to the State if the question of law concerns a State Government.

validity of any
Statutory
Instrument.

1-A. Procedure in suits involving validity of any statutory
instrument.– In any suit in which it appears to the Court
that any question as to the validity of any statutory
instrument, not being a question of the nature mentioned
in rule 1, is involved, the Court shall not proceed to
determine that question except after giving notice–

(a) to the Government pleader, if the question
concerns the Government, or

(b) to the authority which issued the statutory
instrument, if the question concerns an authority other
than Government.

2. Court may add Government as party.– The Court
may at any stage of the proceedings order that the Central
Government or a State Government shall be added as a
defendant in any suit involving any such question as it
referred to in clause (1) of
article 132 read with
article 147, of the Constitution, if the Attorney-General for

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
21
wp6590.15.odt

India or the Advocate-General of the State, as the case may
be, whether upon receipt of notice under rule 1, or
otherwise, applies for such addition and the Court is
satisfied that such addition is necessary or desirable for the
satisfactory determination of the question of law involved.

2-A. Power of Court to add Government or other
authority as a defendant in a suit relating to the validity of
any statutory instrument.– The Court may, at any stage of
the proceedings in any suit involving any such question as
is referred to in rule 1-A, order that the Government or
other authority shall be added as a defendant if the
Government pleader or the pleader appearing in the case
for the authority which issued the instrument, as the case
may be, whether upon receipt of notice under rule 1-A or
otherwise, applies for such addition, and the Court is
satisfied that such addition is necessary or desirable for the
satisfactory determination of the question.

3. Costs.– Where, under rule 2 or rule 2-A, the
Government or any other authority is added as a defendant
in a suit, the Attorney-General, Advocate-General, or
Government pleader or Government or other authority
shall not be entitled to, or liable for, costs in the Court
which ordered the addition unless the Court, having regard
to all the circumstances of the case for any special reason,

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
22
wp6590.15.odt

otherwise orders.

4. Application of Order to appeals.– In the application
of this Order to appeals the word “defendant” shall be held
to include a respondent and the word “suit” an appeal.

[Explanation.– In this Order, “statutory instrument”
means a rule, notification, bye-law, order, scheme or form
made as specified under any enactment.]”

Report of Law Commission and the provisions in Canadian
Statute :

23. Shri Manohar, the learned Senior Advocate, has placed

before us the Forty-fourth Report of the Law Commission of India

on the Code of Civil Procedure, 1908 in February, 1973. The

question considered by the Law Commission was regarding

amendment to be introduced under the Code of Civil Procedure

providing for issuance of notice to the Advocate-General of India or

of the Province, as the case may require. It shows that the

requirement under Order XXVII-A was borrowed from a Canadian

Statute, i.e. the Judicature Act in Ontario, and Section 33

contained therein reads as under :

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
23

wp6590.15.odt

Notice to be given “33. (1) Where in an action or other proceeding the
before Act constitutional validity of any Act or enactment of the
declared invalid.

Parliament of Canada or of the Legislature is brought in
question, it shall not be adjusted to be invalid until after
notice has been given to the Attorney-General for Canada
and to the Attorney-General for Ontario.

(2) The notice shall state what Act or part of an Act is
in question and the day on which the question is to be
argued, and shall give such other particulars as are
necessary to show the constitutional point proposed to be
argued.

(3) Subject to the rules, the notice shall be served six
days before the day named for the argument.

(4) The Attorney-General for Canada and the
Attorney-General for Ontario are entitled as of right to be
heard either in person or by counsel notwithstanding that
the Crown is not a party to the action or proceeding.
R.S.O. 1950, c. 190,
s. 33.

(5) Where in an action or proceeding to which this
section applies the Attorney-General for Canada or the
Attorney-General for Ontario appears in person or by
counsel, each shall be deemed to be a party to the action or

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
24
wp6590.15.odt

proceeding for the purpose of an appeal from any
adjudication as to the constitutional validity of any Act or
enactment in question in the action or proceeding and each
has the same rights with respect to an appeal as any other
party to the action or proceeding. 1959, c. 47,
s. 1.”

Provisions in the Ministry of the Attorney-General Act,
Canada :

24. The statutory responsibilities of the Attorney-General in

Canada are prescribed under Section 5 of the Ministry of the

Attorney-General Act dealing with the functions, and it runs as

under :

“5. The Attorney-General,

(a) is the Law Officer of the Executive Council;

(b) shall see that the administration of public affairs is
in accordance with the law;

(c) shall superintend all matters connected with the
administration of justice in Ontario;

(d) shall perform the duties and have the powers that
belong to the Attorney-General and Solicitor General of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
25
wp6590.15.odt

England by law or usage, so far as those duties and
powers are applicable to Ontario, and also shall perform
the duties and have the powers that, until the
Constitution Act, 1867 came into effect, belonged to the
offices of the Attorney-General and Solicitor General in
the provinces of Canada and Upper Canada and which,
under the provisions of that Act, are within the scope of
the powers of the Legislature;

(e) shall advise the Government upon all matters of law
connected with legislative enactments and upon all
matters of law referred to him or her by the Government;

(f) shall advise the Government upon all matters of a
legislative nature and superintend all Government
measures of a legislative nature;

(g) shall advise the heads of the ministries and agencies
of Government upon all matters of law connected with
such ministries and agencies;

(h) shall conduct and regulate all litigation for and
against the Crown or any ministry or agency of
Government in respect of any subject within the authority
or jurisdiction of the Legislature;

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
26

wp6590.15.odt

(i) shall superintend all matters connected with judicial
offices;

(j) shall perform such other functions as are assigned to
him or her by the Legislature or by the Lieutenant
Governor in Council. R.S.O. 1990, c. M.17, s.5.”

25. The role of the Attorney-General in Canada is that of a

Cabinet Minister. He is the Chief Law Officer of the Executive

Council, but his responsibilities stemming from his role are unlike

those of any other Cabinet member. His role has been referred to

as “judicial-like” and as the “guardian of the public interest”. He

has unique responsibilities to the Crown, the courts, the Legislature

and the executive branch of the government, and those are beyond

that of a political minister. His role in advising the Cabinet is to

ensure that the rule of law is maintained and that the Cabinet

actions are legal and constitutionally valid and his advice is not to

be lightly disregarded and it has the same weight as that of other

Cabinet Ministers. As Chief Law Officer, the Attorney-General, has

a special responsibility to be the guardian of that most elusive

concept – the rule of law. It is the rule of law that protects

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
27
wp6590.15.odt

individuals, and society as a whole, from arbitrary measures and

safeguards personal liberties. On the legislative matters, he is an

adviser to the Cabinet.

26. The function of the Attorney-General prescribed in clause

(d) of Section 5 of the Ministry of the Attorney-General Act is

based on the Crown’s parens patriae (parental) authority. He

performs the duties and have the powers that belong to the

Attorney-General and Solicitor General of England by law or usage

and those which are conferred upon him under the Constitution.

He is not only to conduct litigation in cases directly affecting the

government or its agencies but also to litigate cases where there is

a clear matter of public interest or public rights at stake. This has

been characterized as a constitutional responsibility to ensure that

the public interest is well and independently represented. One of

the responsibilities of the Attorney-General is to ensure

administration of justice in the province and as a result the

responsibility for maintaining liaison with the judiciary. He is

empowered to superintend all the matters connected with judicial

offices.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
28

wp6590.15.odt

Federal structure of Indian Constitution :

27. Before dealing with the provisions relating to the role of

the Attorney-General or Advocate-General under the Indian

Constitution, the structure of the Constitution in brief need to be

seen. The Constitution of India gives a federal structure to the

democratic Republic of India, consisting of Union of India and

States. It lays down a parallel independent system of legislature,

executive and administration for Union of India and States. The

provisions are made in the Constitution for distribution of

legislative, executive and administrative powers between the Union

of India and the States. The provisions are also made with regard

to the legislative and administrative relations between the Union of

India and the States. The Legislatures at both the levels are

empowered to make the laws and exercise control over all the

actions, decision-making and laying down the policies by the

executives. Article 375 of the Constitution of India casts a duty

upon all the authorities and all officers, executive and ministerial,

throughout the territory of India to continue to exercise their

respective functions subject to the provisions of the Constitution of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
29
wp6590.15.odt

India. The executives at both the levels are responsible for

implementation of laws, administration of Government and

maintenance of law and order situation, for which they are

answerable in the Houses of Legislature. The Legislature has a

power to remove the executive.

28. The President of India is the Chief of the Union of India

and the States. He is empowered to appoint the Prime Minister of

India and Council of Ministers to run and administer the Union of

India. The President acts on the aid and advice of the Prime

Minister and the Council of Ministers. The President has the power

to appoint the Governor in each State as the Head of the

Legislature, executives and administration. The Governor in the

State exercises all such powers and performs functions in the State,

which resemble with the powers and functions of the President of

India in relation to the Union of India. The Governor of the State

appoints the Chief Minister of the State and the Council of

Ministers to whom he represents in the State. The Governor acts

on the aid and advice of the Chief Minister and the Council of

Ministers in the State. The Governor holds the office during the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
30
wp6590.15.odt

pleasure of the President, who is empowered to remove him.

Indian Judiciary :

29. There is a single integrated judicial system in India. The

Supreme Court of India is at the apex to administer the justice, and

the High Court at the State level having subordinate Courts and

Tribunal below it. The President of India is the head of the Indian

judiciary and appoints the Chief Justice of India and other Judges

of the Supreme Court of India. The Chief Justice and other Judges

of the High Court are also appointed by the President in

consultation with the Governor of the respective State. A Judge of

the Supreme Court or of the High Court is removable by an order

of the President on the basis of motion of impeachment supported

by a majority of not less than two-third of the members of the

House present and voting.

30. The High Courts of the States and the Supreme Court of

India are empowered to declare any constitutional provision or the

provision under any of the Central or State enactments to be

constitutionally invalid either on the ground of violation of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
31
wp6590.15.odt

fundamental rights or in conflict with the other constitutional

provisions and laws made by the Parliament of the State

Legislature or on the ground of violation of the basic structure of

the Constitution of India. The only rider on all the Courts of civil,

criminal and revenue jurisdiction, all judicial officers throughout

the territory of India under Article 375 of the Constitution of India,

is to exercise their respective functions subject to the provisions of

the Constitution of India.

Provisions of the Attorney-General and Advocate-General
under Indian Constitution :

31. Now we turn to the provisions of the Attorney-General for

India and the Advocate-General for the State, contained in

Articles 76 and 165 of the Constitution of India. Article 76

regarding Attorney-General for India runs as under :

“76. Attorney-General for India.–(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.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
32

wp6590.15.odt

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

(3) In the performance of his duties the
Attorney-General shall have right of audience in all Courts
in the territory of India.

(4) The Attorney-General shall hold office during the
pleasure of the President, and shall receive such
remuneration as the President may determine.”

Article 165 regarding Advocate-General for the State

reads as under :

“165. Advocate-General for the State.–(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

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
33
wp6590.15.odt

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.”

The difference in the provisions of clauses (1) and (3) of

Article 76 and clauses (1) and (3) of Article 165 is that the

Attorney-General is appointed by the President and it is of a person

who is qualified to be appointed as a Judge of the Supreme Court

of India, whereas the Advocate-General of the State is appointed by

the Governor of the State and person to be appointed should be

qualified to be appointed as a Judge of the High Court. The

Attorney-General and the Advocate-General hold their office during

the pleasure of the President and the Governor of the State

respectively and get such remuneration as may be determined by

the President and the Governor, as the case may be. The powers

and functions of the Attorney-General and the Advocate-General

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
34
wp6590.15.odt

are the same in relation to the Government of India and the

Government of State respectively, as is apparent from clause (2) of

Article 76 and clause (2) of Article 165, which include tendering

of legal advice on legal matters, performing such other duties of

legal character, as are referred or assigned by the President or the

Governor, and to discharge the functions, as are conferred by the

Constitution and the laws. The salient feature of being the

Attorney-General, is to have right of audience in all counts in the

territory of India, as provided under clause (3) of Article 76, which

is absent in case of the Advocate-General of the State under

Article 165.

Rules by the President of India prescribing duties of and
restrictions on Attorney-General :

32. In exercise of clause (2) of Article 76, the President of

India has made rules as to the remuneration and duties of the

Attorney-General (as well as the other Law Officers) called as The

Law Officers (Conditions of Service) Rules, 1972. Rule 5 therein

prescribing the duties of the Attorney-General is reproduced

below :

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
35

wp6590.15.odt

Art. 76. “(5) Duties.– It shall be the duty of a Law Officer–
Attorney-General
for India.

(a) to give advice to the Government of India 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 Government of India;

(b) to appear, whenever required, in the Supreme Court
or in any High Court on behalf of the Government of
India in cases (including suits, writ petitions, appeal and
other proceedings) in which the Government of India is
concerned as a party or is otherwise interested;

(c) to represent the Government of India in any
reference made by the President to the Supreme Court
under
Art. 143 of the Constitution; and

(d) to discharge such other functions as are conferred on
a Law Officer by or under the Constitution or any other
Law for the time being in force.

Explanation.– For the purpose of this rule and
sub-rule (1) of Rule 7, the expression “Government of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
36
wp6590.15.odt

India” includes the Government of a Union Territory.”

It is the duty of the Attorney-General to give advice to the

Government of India upon such legal matters and perform such

other duties of legal character, as may, from time to time be

referred or assigned to him by the Government of India. In

addition to it, he is to appear for the Government of India in the

Supreme Court of India and the High Court in which the

Government of India is party or is otherwise interested. He has to

present the case of reference before the Supreme Court of India on

any question of law made by the President under Article 143 of the

Constitution of India.

33. Rule 7 of the aforesaid Rules deals with the restrictions

imposed upon the Law Officer, which include in the definition

under Rule 2(b) means the Attorney-General for India or the

Solicitor-General for India or the Additional Solicitor-General for

India, and it is reproduced below :

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
37

wp6590.15.odt

“7. Restrictions.– (1) A Law Officer shall not–

(a) hold briefs in court for any party except the
Government of India or the Government of a State or any
University, Government School or College, local
authority, Public Service Commission, Port Trust, Port
Commissioners, Government aided or Government
managed hospitals, a Government company as defined in
section 617 of the Companies Act, 1956 (1 of 1956), any
corporation owned or controlled by the State, any body
or institution in which the Government has a
preponderating interest;

(b) advise any party against the Government of India or
in case which he is likely to be called upon to advise, or
appear for the Government of India;

(c) defend an accused person in a criminal prosecution,
without the permission of the Government of India; or

(d) accept appointment to any office in any company or
corporation without the permission of the Government of
India.

(2) Where a Law Officer appears or does other work on
behalf of Union organs such as the Election Commission,
the Union Public Service Commission he shall only be

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
38
wp6590.15.odt

entitled to fees on the scales mentioned in Clauses (c) and

(d) of sub-rule (1) of Rule 6.”

The aforesaid Rule puts restrictions upon the

Attorney-General and prohibits him from appearing or advising in

any matter against the Government of India or any instrumentality

or agency of the Government of India or defending the accused in

any criminal prosecution.

Rules by the Governor of Maharashtra prescribing duties and
functions of Advocate-General :

34. In exercise of the powers conferred by the proviso to

Article 309 read with Article 165 of the Constitution, the Governor

of Maharashtra has made the rules regulating the appointments,

conditions of service and remunerations of Law Officers of the

Government of Maharashtra called as “The Maharashtra Law

Officers (Appointment, Conditions of Service and Remuneration)

Rules, 1984. Rule 2(a) defines the “Advocate-General” means a

person appointed as an Advocate-General by the Governor of

Maharashtra for the State under Article 165 of the Constitution of

India, and Rule 2(l) defines the “Law Officer” means an Advocate

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
39
wp6590.15.odt

appointed by Government in the Law and Judiciary Department,

under these Rules, to conduct cases on behalf of the State or its

officers before any Court or the Maharashtra Revenue Tribunal and

includes an Advocate-General, a Government Pleader and Public

Prosecutor. Rule 3 states that these Rules shall apply to the

officers named therein including (a) the Advocate-General,

Maharashtra State, Bombay; (b) the Government Pleader and

Public Prosecutors in the High Court and (c) the Public Prosecutors

in the Court of Session.

35. Rule 6 of the said Rules deals with the duties of the

Advocate-General, and it is divided in seven parts, which are

classified as under :

(1) As an adviser to Government, he has to advise
upon such legal matters, including propositions of
legislation, on which he may be consulted, and perform
such other duties of a legal character, as may, from time
to time, be specified in these Rules or as may, from time
to time, be referred to or assigned to him by the
Remembrancer of Legal Affairs. He has to advise the
Government in respect of proceedings, whether civil or

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
40
wp6590.15.odt

criminal, which may be required to conduct on behalf of
the State or its Officers.

(2) As an adviser to the officers, when consulted by
them directly on any matters by the Remembrancer of
Legal Affairs and Secretary to the Government in the Law
and Judiciary Department, the Government Pleaders and
the Public Prosecutors in the High Courts.

(3) The statutory duties to discharge such functions
and perform such duties as are imposed on him by or
under the Constitution or imposed upon him by any law
for the time being in force.

(4) As an Advocate-General, he has to attend the
meetings of the Maharashtra Legislative Assembly and the
Maharashtra Legislative Council and of the Committees of
these Houses, when so required by the Government.

(5) As an Advocate-General, he has to perform several
duties as are mentioned in clauses (a) to (m), which
include clauses (j) and (k), reproduced below :

(i) to appear in any case, whether civil or
criminal, in pursuance of a notice served on him
either by the High Court or the Supreme Court or

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
41
wp6590.15.odt

he himself has applied to the said Courts for being
heard. In such cases, he shall report the matter
immediately to the Remembrancer of Legal Affairs
for instructions to appear;

(ii) to appear in any case, whether civil or
criminal, in which the High Court or the Supreme
Court desires him to appear or express its opinion
that he ought to appear.

(6) To deal with the duties for other Governments,
including the Central Government and the State
Governments of a legal character, as may be directed to
perform by the Government.

(7) It prescribes general duties of the
Advocate-General which includes item (iii) as under :

(iii) to bring to the notice of the administrative
departments and the Remembrancer of Legal
Affairs any observation or indication made by the
said Court regarding the imposition of any tax,
cess, levy, penalty etc., or if the said court has
declared any law or statutory rule to be ultra vires
or in which it has observed that the said law or
statutory rule has been causing inconvenience or

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
42
wp6590.15.odt

anomaly.

Rights of Attorney-General and Advocate-General to speak and
participate in the proceedings of Houses under the
Constitution :

36. Under Article 88 in relation to the Attorney-General, and

Article 177 in relation to the Advocate-General are also relevant,

and hence the same are reproduced below :

“88. Rights of Ministers and Attorney-General as
respects Houses.– Every Minister and the Attorney-General
of India shall have the right to speak in, and otherwise to
take part 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, but shall not by virtue
of this article be entitled to vote.”

“177. Rights of Ministers and Advocate-General as
respects the Houses.– Every Minister and the
Advocate-General for a State shall have the right to speak
in, and otherwise to take part in the proceedings of, the
Legislative Assembly of the State or, in the case of a State
having a Legislative Council, both Houses, and to speak in,
and otherwise to take part in the proceedings of, any

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
43
wp6590.15.odt

committee of the Legislature of which he may be named a
member, but shall not, by virtue of this article, be entitled
to vote.”

The aforesaid provisions confer a valuable right upon the

Attorney-General and the Advocate-General to speak in and

otherwise take part in the proceedings of both the Houses of

Parliament or Legislative Assembly of State, or any joint sitting of

the Houses of Parliament and also of any Committee of Parliament

or of the Legislature of which may be named as a member.

However, he is not entitled to vote. By virtue of clause (4) of

Article 105, the Attorney-General enjoys powers, privileges and

immunities of Parliament and its members. Similar is the provision

in relation to the Advocate-General of the State, contained in

clause (4) of Article 194 of the Constitution of India, in respect of

Legislature of a State.

Duties of the Attorney-General or the Advocate-General under
the enactments other than Constitution :

37. In addition to above, the Attorney-General or the

Advocate-General in India are required to perform such other

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
44
wp6590.15.odt

duties of legal character, as are conferred upon him under various

enactments, and the reference to some of it can be made as under :

(A) Section 91 of the Code of Civil Procedure reads as
under :

“91. Public nuisances.– (1) In the case of a public
nuisance or other wrongful act affecting, or likely to
affect, the public, a suit for a declaration and injunction
or for such other relief as may be appropriate in the
circumstances of the case, may be instituted,–

(a) by the Advocate-General, or

(b) with the leave of the Court, by two or more
persons, even though no special damage has been
caused to such persons by reason of such public
nuisance or other wrongful act.

(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.”

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
45

wp6590.15.odt

This provision makes the Advocate-General, a person

aggrieved at whose instance, a suit for declaration and injunction

can be instituted to complain about a public nuisance or other

wrongful act affecting or likely to affect the public.

(B) Sub-sections (1) and (2) of Section 92 of the Code
of Civil Procedure are as under :

“92. Public charities.– (1) In the case of any alleged
breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or
where the direction of the Court is deemed necessary for
the administration of any such trust, the
Advocate-General, or two or more persons having an
interest in the trust and having obtained the leave of the
Court, may institute a suit, whether contentious or not,
in the principal Civil Court of original jurisdiction or in
any other Court empowered in that behalf by the State
Government within the local limits of whose jurisdiction
the whole or any part of the subject-matter of the trust is
situate to obtain a decree–

(a) removing any trustee;

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
46

wp6590.15.odt

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a
person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to
the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property
or of the interest therein shall be allocated to any
particular object of the trust;

(f) authorizing the whole or any part of the trust
property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature
of the case may require.

(2) Save as provided by the Religious Endowments
Act, 1863 (20 of 1863), or by any corresponding law in
force in the territories which, immediately before the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
47
wp6590.15.odt

1st November, 1956, were comprised in Part B States, no
suit claiming any of the reliefs specified in
sub-section (1) shall be instituted in respect of any such
trust as is therein referred to except in conformity with
the provisions of that sub-section.”

In case of breach of any trust created for public purposes

of charitable or religious nature or where any direction is deemed

necessary for the administration of any such trust, the

Advocate-General is held competent to institute the proceedings to

obtain a decree for one or more reliefs under clauses (a) to (h)

under Section 92(1) above.

(C) Section 15 of the Contempt of Courts Act, 1971
reads as under :

“15. Cognizance of criminal contempt in other
cases.– (1) In the case of a criminal contempt,
other than a contempt referred to in
section 14, the
Supreme Court or the High Court may take action
on its own motion or on a motion made by –

(a) the Advocate-General, or

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
48
wp6590.15.odt

(b) any other person, with the consent in
writing of the Advocate-General, or

(c) in relation to the High Court for the Union
territory of Delhi, such Law Officer as the
Central Government may, by notification in the
Official Gazette, specify in this behalf, or any
other person, with the consent in writing of such
Law Officer.

(2) In the case of any criminal contempt of a
subordinate Court, the High Court may take action
on a reference made to it by the subordinate Court
or on a motion made by the Advocate-General or, in
relation to a Union territory, by such Law Officer as
the Central Government may, by notification in the
Official Gazette, specify in this behalf.

(3) Every motion or reference made under this
section shall specify the contempt of which the
person charged is alleged to be guilty.

Explanation.– In this section, the expression
“Advocate-General” means–

::: Uploaded on – 09/04/2018 10/04/2018 02:00:34 :::
49

wp6590.15.odt

(a) in relation to the Supreme Court, the
Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the
Advocate-General of the State or any of the States
for which the High Court has been established;

(c) in relation to the Court of a Judicial
Commissioner, such Law Officer as the Central
Government may, by notification in the Official
Gazette, specify in this behalf.”

In case of criminal contempt in relation to the Supreme

Court of India and in relation to the High Court, the

Attorney-General of India and the Advocate-General of the State

respectively are held competent either to institute or to grant

sanction to institute the proceedings. Even in case of contempt of

any subordinate Court also, the Advocate-General of a State is held

competent to move such a motion to the High Court of a State.

(D) Sub-sections (1), (2) and (3) of Section 2 of the
Maharashtra Vexatious Litigation (Prevention) Act, 1971
runs as under :

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
50

wp6590.15.odt

“2. (1) If, on an application made by the
Leave of Court
necessary for Advocate-General, the High Court is satisfied that
vexatious litigant to any person has habitually and without any
institute or continue
any civil or criminal reasonable ground instituted vexatious proceedings,
proceedings.

civil or criminal, in any Court or Courts, whether
against the same person or against different persons,
the High Court may, after hearing that person or
giving him an opportunity of being heard, order that
no proceedings, civil or criminal, shall be instituted
by him in any Court (and that any legal proceedings
instituted by him in any Court before the order shall
not be continued by him),–

(a) in Greater Bombay, without the leave of the
High Court; and

(b) elsewhere in the State, without the leave of
the District and Sessions Judge.

At the hearing of any such application, the
Advocate-General may appear through a pleader.

(2) Such leave shall not be given unless the High
Court or the Judge, as the case may be, is satisfied
that the proceedings are not an abuse of the process

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
51
wp6590.15.odt

of the Court and that there is prima facie ground for
the proceedings.

(3) No appeal shall lie against an order refusing
leave for the institution or continuance of any
proceedings by a person who is the subject of an
order for the time being in force under
sub-section (1). Nothing in this sub-section shall
apply to any appeal which may lie to or any
proceeding before the Supreme Court.”

Under the aforesaid provision, the High Court is

empowered to direct any person that no proceedings of civil or

criminal nature shall be instituted in any Court, if it is satisfied

upon an application made by the Advocate-General that such

person is habitually and without any reasonable ground institutes

vexatious proceedings in any Court or Courts, without leave of the

High Court or the District and Sessions Judge, as the case may be.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
52

wp6590.15.odt

(E) Sub-sections (1) and (2) of Section 8-A of the
Advocates Act, 1961 reads as under :

“8-A. Constitution of Special Committee in the
absence of election.– (1) Where a State Bar
Council fails to provide for the election of its
members before the expiry of the term of five years or
the extended term, as the case may be, referred to in
section 8, the Bar Council of India shall, on and from
the date immediately following the day of such
expiry, constitute a Special Committee consisting of–

(i) the ex-officio member of the State Bar
Council referred to in clause (a) of sub-section (2) of
section 3 to be the Chairman:

Provided that where there are more than one ex
officio members, the senior-most amongst them shall
be the Chairman; and

(ii) two members to be nominated by the Bar
Council of India from amongst advocates on the
electoral roll of the State Bar Council,

to discharge the functions of the State Bar Council
until the Bar Council is constituted under this Act.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
53

wp6590.15.odt

(2) On the constitution of the Special Committee
and until the State Boar Council is constituted–

(a) all properties and assets vesting in the State
Bar Council shall vest in the Special Committee;

(b) all rights, liabilities and obligations of the
State Bar Council, whether arising out of any
contract or otherwise, shall be the rights, liabilities
and obligations of the Special Committee;

(c) all proceedings pending before the State Bar
Council in respect of any disciplinary matter or
otherwise, shall stand transferred to the Special
Committee.”

Under clause (a) of sub-section (2) of Section 3 of the

Advocates Act, 1961, it is the Advocate-General of the concerned

State, who becomes an ex officio member of a State Bar Council. It

is the Advocate-General of the State, who becomes a Chairman of a

Special Committee constituted to administer the affairs of State Bar

Council in the event if the term of elected members of such Bar

Council expires, even after extension.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
54

wp6590.15.odt

Position of the Attorney-General – Advocate-General, their role,
powers, functions, duties and obligations emerging from the
aforesaid provisions of law :

38. Though the President and the Governor have an authority

to appoint and remove the Attorney-General and the

Advocate-General respectively, such authority is required to be

exercised on the aid and advice of the Council of Ministers as per

the provisions of Articles 74 and 163 of the Constitution of India.

The appointees are supposed to be the eminent legal luminaries

possessing the eligibility criteria prescribed for their appointment

under the relevant rules and they hold their office during the

pleasure of the President or the Governor, as the case may be.

The remuneration payable to the Attorney-General or the

Advocate-General is neither voted out nor is determined by the

Central or the State Government, but by the President or the

Governor, as the case may be, in exercise of the powers under

clause (4) of Article 76, and clause (4) of Article 165 of the

Constitution of India.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
55

wp6590.15.odt

39. Neither the Attorney-General nor the Advocate-General

becomes a member of any of the Houses of the Parliament or the

State Legislature, but the provisions of clause (4) of Article 105

and clause (4) of Article 194 make them entitled to enjoy the

powers, privileges and immunities of the Parliament or the State

Legislature or its members. This, however, does not include a right

to vote in the Houses of the Parliament or the State Legislature or

in any Committee of the Parliament or the State Legislature of

which any of the appointees may be a member. The provisions of

Articles 88 and 177 of the Constitution confer upon the appointees

a valuable right to speak in and otherwise take part in such

proceedings. Unlike the position of the Legal Adviser to the

Governments in U.K., U.S.A., France, erstwhile Soviet Union and

Republic of China, the Attorney-General or the Advocate-General

neither does occupy any position under the Ministry or the

Department under the Government nor does hold an elective

office.

40. In terms of clause (2) of Article 76 and clause (2) of

Article 165 of the Constitution, it is the legal duty of the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
56
wp6590.15.odt

Attorney-General or the Advocate-General respectively to give his

real, fair, genuine, impartial or unbiased opinion to the

Government of India or the State Government, as the case may be,

though he is not administered any such oath while entering in the

office. In the American States, opinions of Attorney-General have

the force of law unless they are overruled by a Court. Though the

Government of India or the State Government is not bound by the

opinion given by such appointees, it cannot lightly be brushed

aside. Normally, therefore, the political party in power has a

tendency of appointing the persons of its choice to occupy such

position so that it gets the coloured opinion of its choice.

Consequently, such appointment sometime becomes politically

motivated, though the appointee is not a political person.

Consequently, a practice is developed to resign from such position

as soon as the Government, on whose aid and advice the position is

occupied, loses the power or going out of power, in spite of the fact

that the period of appointment has not expired.

41. Article 375 of the Constitution of India creates a statutory

obligation upon all Courts of civil, criminal and revenue

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
57
wp6590.15.odt

jurisdiction, all authorities and all officers – judicial, executive and

ministerial, throughout the territory of India to continue to exercise

their respective functions subject to the provisions of the

Constitution. Consequently, as the Chief Legal Adviser to all these

authorities and persons, the Attorney-General or the Advocate-

General, as the case may be, has to see that the legal advice

tendered by him is always directed to attain the goals of the

Constitution and subservient to it, are the laws enacted by the

Parliament or the State Legislature.

42. Apart from giving legal advice, the Attorney-General and

the Advocate-General has to perform such other duties of a legal

character as may from time to time be referred or assigned to him

by the President or the Governor, as the case may be. Both these

appointees are, therefore, entrusted with the duty of appearing,

whenever required, in the Supreme Court or in any High Court in

all sorts of matters for and on behalf of the Government of India

and the State Government, as the case may be, in which the

Government of India or the State Government is concerned party

or is otherwise interested. The separate rules framed by the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
58
wp6590.15.odt

President and the Governor prescribe all such duties, functions,

powers and responsibilities. The special feature of being

Attorney-General for India is to have a right of audience in all the

Courts in territory of India, as provided under clause (3) of

Article 76 of the Constitution of India and to represent the

Government of India in any reference made by the President to the

Supreme Court of India under Article 143 of the Constitution of

India. Though in respect of Advocate-General, there is no provision

analogous to one under clause (3) of Article 76, there is a

long-standing convention or practice of the Advocate-General to

have a right of audience in all the Courts in India, where the State

Government to which he represents is concerned or is otherwise

interested. Obviously, the Advocate-General cannot appear as a

matter of duty in the reference made by the President to the

Supreme Court under Article 143 of the Constitution of India.

43. The right to speak and otherwise take part in the

proceedings of the Houses of the Parliament or the State

Legislature or any Committee of it, would include tendering his

opinion on constitutional or otherwise validity or invalidity of any

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
59
wp6590.15.odt

provision under the Constitution or any law made or to be made,

including the proposed amendment to it. However, this has no

binding force. But when such an issue or question arises in respect

of the same provision before the Supreme Court or the High Court,

it becomes the constitutional right and prerogative of the

Attorney-General or the Advocate-General to perform dual

functions – (i) to represent the Central or the State Government, as

the case may be, to defend such challenge, and (ii) to see that such

provision conforms to the norms and principles prescribed under

the Constitution. It may become a case of conflict of interest

without any scope for balancing and the situation may compel the

Attorney-General or the Advocate-General, as the case may be, to

resign from his position.

44. The Attorney-General and the Advocate-General are

basically and essentially concerned with the system of

administration of justice. When they appear before the Supreme

Court or the High Court to defend the action of Parliament or State

Legislature or Central or State Government, they acquire the role

of a friend, philosopher and guide of the Court, being the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
60
wp6590.15.odt

Advocates, Officers of the Court and the independent constitutional

functionaries, whose legal opinion is not controlled either by the

Parliamentarians, Legislators or Executives. It is their duty to

express their real, free, fair, impartial, genuine and unbiased

opinion to attain the goal of the Constitution while supporting the

competency of the Parliament or of the State Legislature, as the

case may be, or while protecting the rights of citizens, who are

either the beneficiaries of the provision or likely to be adversely

affected by its introduction. Such duty stems from the right of

audience provided to them before the Courts by the Constitution.

Rule 6(5)(ii) of the Maharashtra Law Officers Rules casts a duty

upon the Advocate-General to appear in any case, whether civil or

criminal, in which the High Court or the Supreme Court desires

him to appear or express its opinion that he ought to appear.

45. The Attorney-General and the Advocate-General are the

eminent legal luminaries. Neither of them can be considered to be

a political personality, in the sense that they are neither the

political leaders nor the elected members of either House of the

Parliament or of the State Legislature. Both are the separate and

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
61
wp6590.15.odt

independent constitutional functionaries, occupying the unique

position, performing the multiple roles, and considered to be the

multi-faceted personalities. They have definite duties to perform

and functions to discharge towards the President or the Governor,

the Houses of Parliament or the State Legislature, all the officers

and authorities, the Supreme Court and the High Court, and the

citizens. Both of them are supposed to possess the qualities of

liasoning officer to abridge the gap between the Legislature,

Executive and Judiciary in the system of administration of justice.

46. The nature of confidence reposed in the Attorney-General

and the Advocate-General by the Constitution is apparent from the

increase in the discharge of their functions, as are conferred upon

them under the various provisions of the Central or the State

enactments, as pointed out below :

(1) The Advocate-General acts as a caretaker of the
public nuisance or other wrongful acts affecting or likely
to affect the public, as specified in Section 91 of the Code
of Civil Procedure and can take further steps to prevent it.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
62

wp6590.15.odt

(2) The Advocate-General is treated as a person
interested in any express or constructive trust created for
public purposes of a charitable or religious nature at
whose instance the Trustees of such Trust can be removed
or new Trustees can be appointed in whom the property
of Trust can be vested, to institute the proceedings for
recovery of Trust’s properties, settle the claims and all
such other things, which are deemed necessary for the
administration of such Trust, as specified under
Section 92 of the Code of Civil Procedure.

(3) In case of criminal contempt in relation to the
Supreme Court or in relation to the High Court, the
Attorney-General or the Advocate-General of a State is
competent either to institute or to grant sanction to
institute such proceedings. Even in case of contempt of
any subordinate Court, the Advocate-General of a State is
competent to move such a motion to the High Court.

(4) The Advocate-General is also a caretaker of any
vexatious civil or criminal proceedings, which are being
instituted by any person habitually or without reasonable
ground and can make an application to the High Court to
prevent institution of such proceedings, which constitute a
abuse of process of the Court under the provisions of
sub-sections (1), (2) and (3) of
Section 2 of the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
63
wp6590.15.odt

Maharashtra Vexatious Litigation (Prevention) Act, 1971.

(5) The Advocate-General is the ex officio Chairman
of a Special Committee to be constituted under
Section 8-A of the Advocates Act, 1961 for the purposes of
administration of the Bar Council of State, in the event if
the term of the elected member of such Bar Council
expires even after extension.

47. The Advocate-General of a State, who occupies a position

similar to one of the Attorney-General is the caretaker of the

wrongful acts affecting or likely to affect the public at large,

including the public nuisance. He is the caretaker of the trusts

created for public purposes of charitable and religious nature. He

is also an interested person in the welfare and the discipline of the

lawyers’ community. He has also to see that the process and the

valuable time of the Court is not consumed in institution and

prosecution of vexatious and frivolous litigation and that it is

curbed. The most important duty of the Attorney-General and the

Advocate-General is to see that the lawyers and litigants maintain

decorum while in Courts and that the authority, image and dignity

of the Courts is maintained by one and all and it is not undermined

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
64
wp6590.15.odt

or lowered down. If the Advocate-General is appointed as the

Public Prosecutor under Section 24(1) of the Code of Criminal

Procedure, he gets power to withdraw from the prosecution of

criminal cases in terms of Section 321 of the Code of Criminal

Procedure. Thus, the role of the Attorney-General and the

Advocate-General under the Indian Constitution can be described

as parens patriae (parental authority) with further authority of

bringing an end to a trial of an indictment by entering a

nolle prosequi (do not pursue or prosecute), i.e. an entry made on

the court record, when a plaintiff in a civil suit or a prosecutor in a

criminal prosecution undertakes not to continue the action or

prosecution.

48. From the position occupied by the Attorney-General and

the Advocate-General under the Indian Constitution, their role,

powers, functions, duties and obligations, it becomes very clear

that there exists a constitutional right of being heard in favour of

the Attorney-General for India in a case or the cases before the

High Court under Article 226 or 227 of the Constitution of India,

wherein it is proposed to declare any provision in the Constitution

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
65
wp6590.15.odt

or any Central enactment or any provision made thereunder as

constitutionally invalid. Similar right exists in favour of the

Advocate-General in case of any such challenge to the State

enactment or any provision made thereunder. The High Court

cannot, therefore, proceed to declare the constitutional invalidity

of such provision in exercise of its jurisdiction under Article 226 or

227 of the Constitution of India without serving a sufficient

advance notice of its proposed declaration upon the Attorney-

General or the Advocate-General, as the case may be. The

requirement is mandatory and in the absence of such service of

notice, the High Court becomes incompetent to grant such

declaration. In the decision of the Apex Court in the case of

Basantlal v. State of U.P., cited supra, the decision of the High

Court granting declaration of constitutional invalidity of Section

125(2) of the Code of Criminal Procedure, 1973 on the ground of

it being ultra vires Article 14 of the Constitution of India without

notice to the Attorney-General. The decision supports the view

which we have taken.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
66

wp6590.15.odt

49. The Attorney-General or the Advocate-General, as the

case may be, upon receipt of such notice can exercise such right

and avail the opportunity by appearing either personally or

through the Additional or Assistant Government Pleader or a

Special Counsel be appointed for that purpose. It is his option to

avail or not such an opportunity, and the right stands exhausted

accordingly. The Court is not thereafter bound to wait for his

appearance, if he fails to avail an opportunity provided. Upon

compliance of requirement of service of notice, the High Court

becomes competent to grant declaration about invalidity of such

provision.

50. Though in the Canadian statute the role of the Attorney-

General in Canada is that of a Cabinet Minister, he is the Chief Law

Officer of the Executive Council, but his responsibilities from his

role are unlike those of any other Cabinet Member. It describes his

role as “judicial-like” and the “guardian of the public interest”. He

has unique responsibilities to the Crown, the Courts, the

Legislature, the executive branch of the Government, and those are

beyond as that of a political minister. He has to ensure that the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
67
wp6590.15.odt

rule of law is maintained and that the Cabinet actions are legally

and constitutionally valid. The Attorney-General has a special

responsibility to be the guardian of that most elusive concept – the

rule of law. It is the rule of law which protects individuals and

society as a whole from arbitrary measures and safeguards

personal liberties. The role of the Attorney-General in Canada is

described as parens patriae (parental authority) with further

authority of bringing an end to a trial of an indictment by entering

a nolle prosequi (do not pursue or prosecute), i.e. an entry made on

the court record, when a plaintiff in a civil suit or a prosecutor in a

criminal prosecution undertakes not to continue the action or

prosecution. All these concepts are built in or inherent in the

system under the Indian Constitution.

51. Though the provision of Order XXVII-A, Rule 1 of the

Code of Civil Procedure is modelled on the lines of the Canadian

statute, in India, it stems from – (i) the right of the Attorney-

General or the Advocate-General to speak in and otherwise take

part in the proceedings of the Houses of the Parliament or the

State Legislature or any Committee of it, and (ii) the right of

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
68
wp6590.15.odt

audience conferred upon them in the Supreme Court and the High

Courts. Such rights are inbuilt or inherent under the Constitution

of India. The necessity was felt by the Legislature to confer such a

legal right of audience upon both these authorities where such

questions arise in the civil suit instituted in the Courts subordinate

to the High Court, for instance, any dispute under the provisions of

the Hindu Succession Act, the Mohammedan Law, the Transfer of

Property Act, the Specific Relief Act, etc., which is purely between

the two private parties, who may join themselves on the issue of

unconstitutionality or invalidity of any provision under the

Constitution or the law made by the Parliament or the State

Legislature. In view of this, even if the provisions of the Code of

Civil Procedure are not applicable to writ proceedings under

Articles 226 and 227 of the Constitution of India by virtue of

Section 141 of the Code of Civil Procedure, it hardly makes any

difference.

Question No.(2) :

52. We now turn to question No.(2) as to whether such

notice is also required to be given to the Attorney-General or the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
69
wp6590.15.odt

Advocate-General, as the case may be, to consider the

constitutionality or otherwise validity of any subordinate

legislation in the form of any “statutory instrument”, as is referred

to in Order XXVII-A, Rule 1-A of the Code of Civil Procedure, by

the High Court in exercise of its jurisdiction under Article 226 or

227 of the Constitution of India. The provision of Order XXVII-A,

Rule 1-A states that in any suit in which it appears to the Court

that any question as to the validity of any statutory instrument not

being a question of the nature mentioned in Rule 1 is involved, the

Court shall not proceed to determine th at question except after

giving notice – (a) to the Government Pleader, if the question

concerns the Government, or (b) to the authority, which issued the

statutory instrument, if the question concerns the authority other

than the Government.

53. The provision under Order XXVII-A, Rule 1-A of the Code

of Civil Procedure does not require issuance of notice to the

Attorney-General, if the challenge is to the constitutional validity of

the subordinate legislation in the form of rules, regulations,

bye-laws, order or control order, scheme, manual, etc., issued in

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
70
wp6590.15.odt

exercise of the statutory power conferred by the Central or the

State legislation, described as “statutory instrument”. The reason

is obvious, that the statutory instruments are brought into force by

issuing notification in the official gazette. Though under certain

enactments. such instruments are required to be placed on the

table of the House, there is no requirement of getting approval of

the Parliament or the State Legislature, and consequently the

Attorney-General or the Advocate-General has hardly any role in

framing or bringing into force the subordinate legislation. The

placement in the House is merely the mode and manner in which

the subordinate legislation is brought into force. Normally, the

procedural aspects are dealt with by the subordinate legislation,

which may affect the rights of individuals or a section of people,

but not of public at large.

54. In the proceedings under Article 226 or 227 of the

Constitution of India, invariably, the Central or the State

Government, through its concerned Department, which has framed

the “statutory instrument”, or the statutory bodies bringing into

force the subordinate legislation, are the party-respondents, and

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
71
wp6590.15.odt

consequently, the notice of the proposed challenge is issued to the

party likely to be affected by grant of declaration regarding its

invalidity. There is no further requirement and the High Court can

proceed to declare any statutory instrument or any provision

therein as invalid.

55. In the decision of the Apex Court in the case of State of

Gujarat v. K.V. Joseph, cited supra, the Apex Court set aside the

decision of the High Court granting declaration of para 4 of the

Vigilance Manual as ultra vires by reason of the same being said to

be in direct conflict with the statutory provisions of Sections 7, 13,

17 and 19 of the Prevention of Corruption Act. The Apex Court

has held that no notice was sent to the Advocate General of the

State and, therefore, the judgment delivered by the Appellate

Bench of the High Court was not sustainable. It is difficult for us to

hold that this decision is an authority for the proposition that in

case of challenge to the constitutional validity of the rules in the

form of subordinate legislation, a notice, either to the Attorney

General or to the Advocate General, is required to be issued. In the

facts and circumstances of the case before the Apex Court, the

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
72
wp6590.15.odt

decision of the High Court was set aside on the ground that no

notice was sent to the Advocate General of the State before

granting declaration as to invalidity of para 4 of the Vigilance

Manual. No reasons are recorded in the said judgment, which can

be termed as “the ratio of the decision”. It is not the ultimate

decision of the Apex Court which is to be seen as a binding

precedent, but it is the reasoning behind the decision on the

question of law which constitutes “the ratio of the decision”.

56. In our view, therefore, in case of a challenge to the

subordinate legislation in the form of a “statutory instrument”, as is

referred to in Rule 1-A of Order XXVII-A of the Code of Civil

Procedure, no notice is required to be issued either to the Attorney

General or to the Advocate-General, as the case may be, before

granting a declaration about its invalidity by the High Court in

exercise of its jurisdiction under Article 226 or 227 of the

Constitution of India. The question No.(2) is, therefore, answered

accordingly.

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::
73

wp6590.15.odt

57. In view of the aforesaid discussion, the challenge in the

present petition being to the validity or Rule 6(b) of the Seeds

Rules, framed in exercise of the power conferred by the provision

of Section 25(2)(f) of the Seeds Act, which is the Central

legislation, it is not necessary to issue notice to the

Attorney-General for India to declare the provision as

unconstitutional or invalid. The authority, which has issued the

Seeds Rules in exercise of its statutory power, is the party-

respondent in this petition, apart from the Central Government,

through its concerned Department, to whom a notice has already

been issued and the appearance is put in by the Assistant Solicitor

General of India, and the Assistant Government Pleader, who has

been assigned this matter by the Government Pleader in the High

Court.

(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS

::: Uploaded on – 09/04/2018 10/04/2018 02:00:35 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Rules of Group, If You agree then Message us on Above Number.

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh