Laxmikanth Summary: Advocate General of the State

Introduction

The Constitution of India, under Article 165, creates the office of the Advocate General for each State. The Advocate General is the chief legal officer of a State and is analogous in function to the Attorney General of India at the Union level. The post is intended to advise and represent the State government on legal matters and to perform such other duties as are assigned by the Governor or by law.

Appointment and Qualifications

The Governor appoints the Advocate General. The Constitution requires that the appointee be qualified to be appointed as a Judge of a High Court. The qualification entails that the person must be an Indian citizen and must have either held a judicial office in India for ten years or have been an advocate in a High Court for ten years.

Governor of state appoint State Advocate General

• Term of office: The Constitution does not prescribe a fixed term for the Advocate General.
• Removal: The Constitution does not specify grounds or a procedure for removal; the Advocate General holds office at the Governor's pleasure.
• Resignation: The Advocate General may resign by tendering a resignation to the Governor.
• Convention on change of government: In practice, the Advocate General usually offers resignation when the State government or Council of Ministers changes, since the appointment is made in the political context of the government.
• Salary and emoluments: The Constitution does not fix the Advocate General's salary; it is determined by the State (Governor/State government) and may vary from State to State.

Duties, Powers and Rights

• Chief legal adviser: The Advocate General advises the State government on legal matters referred by the Governor or by the government departments.
• Representation: The Advocate General represents the State in courts and tribunals in matters where the State is a party or has an interest; the State government may instruct the Advocate General to appear or appoint other counsel.
• Other duties: The Advocate General performs such other legal duties as may be assigned by the Governor or as provided by law.
• Legislative participation: The Advocate General has the right to speak in the State Legislative Assembly and State Legislative Council (if the State has one), and to participate in their proceedings or in any committee to which they are appointed, but does not possess the right to vote.
• Privileges and immunities: The Advocate General enjoys the same parliamentary privileges and immunities that are available to members of the State legislature for acts done in the course of legislative duties.
• Distinct character of the office: The Advocate General is a constitutional officer and not a member of the Council of Ministers by virtue of the office; the role is primarily advisory and representative rather than a political office with voting rights in the legislature.