The Hindu : 'States cannot appoint more than one Advocate-General'

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Wednesday, Jan 14, 2004

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'States cannot appoint more than one Advocate-General'

By Our Legal Correspondent

NEW DELHI, JAN.13. The Supreme Court has held that the States cannot appoint more than one Advocate-General under Article 165 of the Constitution.

A Bench, consisting of the Chief Justice V.N. Khare and Justice S.B. Sinha, held that the appointment of Additional Advocate-Generals in some States had no constitutional sanction as the Constitution envisaged only one Advocate-General per State. "If more than one person is appointed to discharge the constitutional functions as also the statutory functions, different Advocate-Generals may act differently resulting in a chaos."

The judges, however, upheld the appointment of two Additional Advocate-Generals by the Andhra Pradesh Government observing that the Government could give any kind of designation to the lawyers though they did not hold any constitutional post.

The judges said: "the Government of a State as a litigant can appoint as many lawyers as it likes to defend it. For the said purpose, the State is not prohibited from conferring such designation on such legal practitioners, as it may deem fit and proper. But, the State, in our considered view, cannot appoint more than one Advocate-General."

The Bench said that in the appointments to the constitutional posts such as the Chief Justice of India, the judges of the Supreme Court and the High Court and the Attorney-General, the Constitution did not envisage that their functions be performed by more than one person.

"The office of Advocate-General is a public office. He not only has a right to address the Houses of Legislature but also is required to perform other statutory functions in terms of Section 302 and 92 of Cr.P.C. and Section 23 of the Advocates Act. Each of such functions by the Advocate-General was of great public importance. Such public functions were required to be performed by the holder of a constitutional post having regard to his stature and keeping in view the fact that the State intended to endow such responsibility on him," the Bench said. The State by amending the provisions of Sections 24 and 25 of the Cr. P.C. might make a law regulating the appointment of the Public Prosecutor or the Additional Public Prosecutor. Such a law could also be made for regulating appointment of other State counsel.

"The State, in exercise of its jurisdiction under Article 162 of the Constitution, is competent to appoint a lawyer of its choice and designate him in such manner as it may deem fit and proper," the Bench said.

If a person was appointed as the Additional Advocate-General, then the appointment would be in exercise of the State's executive powers and not in exercise of its constitutional powers. "Consequently, the Additional Advocate-General so appointed is not in the constitutional scheme and does not hold constitutional office," the Bench said dismissing the appeal filed by one M.T. Khan challenging a Andhra Pradesh High Court order rejecting his petition questioning the appointment of two Additional Advocate-Generals by the State.

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