CONSTITUTIONAL ROLE AND INDEPENDENCY OF ATTORNEY GENERAL INTRODUCTION “Freedom and independence, form my character” - Mustafa Kemal Ataturk If men were angels, no Government would be necessary. If angels were to govern men, neither external nor internal controls on Government would be necessary. 1 In framing a Government which is to be administered by men over men, the great difficulty lies in this: you must first enable the Government to govern the governed; and in the next place, oblige it to control itself. 2 The constitution is full of old and strange jobs and titles, like that of Attorney General. To most people, even those with knowledge of Government and the criminal justice system, the role of Attorney General is something of a mystery. 3 The office of Attorney General is described as a meeting place of diverse legal, political and constitutional functions; the Attorney General is both the legal adviser to the Government and the guardian of the public interest. 4 The common tendency is to view the Attorney General and his department as nothing 1 Johnson V. Commonwealth , Defining the Scope of the Attorney General's Office and the Power of The Legislature over It , 291 KY.829, 165 S.W.2D 280 (1942). 2 Stephen Charles Mixter, The Ethics In Government Act Of 1978: Problems With The Attorney General's Discretion And Proposals For Reform, Duke Law Journal, Vol. 1985, No. 2 (Apr., 1985), pp. 497-522, available at: <http://www.jstor.org/stable/1372362 > 3 Elwyn Jones, The Office Of Attorney General , The Cambridge Law Journal, Vol. 27, No. 1 (Apr., 1969), pp. 43-53, available at: <http://www.jstor.org/stable/4505281 >. 4 Darren Lehane, Legal Janus: Resolving The Conflict Between The Attorney General's Functions as Guardian of the Public Interest and Legal Adviser to the Government , The Irish Student Law Review Vol. 12 (2004), pp.48-63, available at: <http://heinonline.org/hol/page?handle=hein.journals/irishslr12&div=7&g_sent=1&collection=jour nals#54 >. 80 Published in Articles section of www.manupatra.com more than a law firm which is always on call to serve the interest of the political party that is in power at the time. 5 Now, as discussed above the Attorney General is like the legal adviser of the Government and the defender of the public interest then ‘how on earth can one explain the fact that G. E. Vahanvati who is the current Attorney General of India, to put it as politely as possible, misled the Supreme Court itself, if only by his silence?’ 6 The event that happened was this, the Supreme Court asked a simple, a very direct, question. Had the C.B.I. shared its report on the Coal Allotment Scam with anyone in the 'political executive'? Multiple sources confirm that G. E. Vahanvati was present at such a meeting, in the office of the Union Law Minister, and with officials from both the Prime Minister's Office and the Coal Ministry in attendance. 7 (Union Law Minister Ashwani Kumar has reportedly gone so far as to allege that the meeting was called by the Attorney General!) It is also on record that G. E. Vahanvati was present in court when their Lordships posed that query. He chose to remain silent when Additional Solicitor General Haren Rawal said the C.B.I. had not revealed its report to the 'political executive'. 8 Can anyone present a reasonable explanation to excuse this? 5 John Ll. J. Edwards, The Attorney General, Politics and the Public Interest, The Cambridge Law Journal, Vol. 44, No. 3 (Nov., 1985), pp. 480-482. 6TVR Shenoy, Legal Tangles In Investigation , (May 06 2013), available at: <http://www.mathrubhumi.com/english/story.php?id=135766 >. 7 Ibid. 8 Ibid. at 6. 81 Published in Articles section of www.manupatra.com On 30 April, the Supreme Court spoke on the need to further insulate the C.B.I. from political interference. Perhaps their Lordships could also extend this protection to the Attorney General too — simultaneously sending out the message that the Attorney General is much more than a professional doing his duty to the ministry of the day that he owes a higher duty as an officer of the court. 9 The Authors see that Article 76 10 of the constitution gives constitutional status to the office of Attorney General. Article 76 (2) 11 provides that the Attorney General shall be the legal adviser of the government and shall perform all such powers, functions and duties as are prescribed by law. The constitutional status and role of the Attorney General is defined in the constitution, but “the constitutional provisions do not expressly define all the powers and function of the office. In Attorney General (Condition of service) Rules 12 , the President made the following Rules regulating remunerations duties and other terms and conditions of the Attorney General for India. In the definition clause, Attorney 9 Ibid. at 6. 10 Indian Constitution, Art. 76: Article 76 says that 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,(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 Conduct Of Government Business. 11 Ibid . 12 Law Officer (Conditions Of Service) Rules, 1987. Ministry of Law and Justice, Department of Legal Affairs, No.F.18 (1)/86-Judl. Government of India, New Delhi, The 1 st January 1987. 82 Published in Articles section of www.manupatra.com General means the person appointed under clause (1) of Article 76 13 of the constitution as the Attorney General for India and includes any person appointed to act temporarily as the Attorney General for India. In essence, the powers and functions of the Attorney General as described in clause 5, Attorney General (Condition of service) Rules 1987 shall be 14 : (a) to exercise the final responsibility for the office of the prosecutor general; (b) to be the principal legal adviser to the President and the Government; (c) to represent the government of India in any reference made by the President to the supreme court under article 143.15 Since independence, our community has changed fundamentally. It is contented that those changes have produced a redirection, a new purpose in the role of the Attorney General. We have become, in a striking way, a rights- oriented society. 16 The courts are increasingly perceived by our citizens as the appropriate forum for profound social and economic changes. Politics itself is increasingly dominated by the rhetoric of rights. 17 To understand the function of the Attorney General it is necessary to know the nature of the office of which it is a part, and the authority on which that 13 Supra note 10. 14 Supra note 12. 15 Indian Constitution, Art.143: Article 143 says that Power Of President To Consult Supreme Court ( 1 ) If At Any Time It Appears To The President That A Question Of Law Or Fact Has Arisen, Or Is Likely To Arise, Which Is Of Such A Nature And Of Such Public Importance That It Is Expedient To Obtain The Opinion Of The Supreme Court Upon It, He May Refer The Question To That Court For Consideration And The Court May, After Such Hearing As It Thinks Fit, Report To The President Its Opinion Thereon (2)The President May, Notwithstanding Anything In The Proviso To Article 131, Refer A Dispute Of The Kind Mentioned In The Said Proviso To The Supreme Court For Opinion And The Supreme Court Shall, After Such Hearing As It Thinks Fit, Report To The President Its Opinion Thereon. 16 Steyn, " The Weakest and Least Dangerous Department of Government " (1997) Public Law 84 at pp. 91-92. 83 Published in Articles section of www.manupatra.com office rests. The basis of the office of the Attorney General is found in history and constitution. The origins and development of the office in England can provide a frame of reference for understanding today’s problem; to understand this development is to understand the conflicts inherent in the structure today are not necessarily of intentional design. This paper takes the position that the Attorney General is not just the government’s lawyer, but plays an important role in protecting the rule of law within government. GENESIS OF THE ATTORNEY GENERAL ’S OFFICE “I think it is vitally important to study History. If we are going to lead Britain safely into the future, it is essential that we understand our country’s historical roots. If we can learn the lessons of the past, we will be able to avoid making mistakes in the future.” - Tony Blair It is not that the early experiences of the development of the office of the Attorney General would necessarily answer today's questions. But, one of the most important contributions that a study of history of this office offers is the point that, from the start of this office, what were the questions and problems present and what were their answers.