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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.
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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.
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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
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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
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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
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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
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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?
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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,
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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
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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 :
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“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.
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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.”
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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
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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
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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
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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
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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.
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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.”
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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)
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wp6590.15.odtOrder 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
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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,
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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 :
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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
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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 :::
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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;
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(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
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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.
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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
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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
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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
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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.
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(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
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wp6590.15.odtmatters, 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
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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 :
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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
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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 :
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“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,
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wp6590.15.odtentitled 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
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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
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wp6590.15.odtcriminal, 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
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wp6590.15.odthe 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
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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,
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wp6590.15.odtcommittee 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
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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.”
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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;
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(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
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wp6590.15.odt1st 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
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(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–
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(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 :
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“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
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wp6590.15.odtof 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.
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(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.
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(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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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(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
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(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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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