Advocate-General for the State

Article 145, Draft Constitution of India 1948

(1) The Governor of each State shall appoint a person who is qualified to be appointed a judge of a High Court, to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters and to perform such other duties of a legal character as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. (3) The Advocate-General shall retire from office upon the resignation of the Chief Minister in the State, but he may continue in office until his successor is appointed or he is reappointed.

(4) The Advocate-General shall receive such remuneration as the Governor may determine.

Article 165, Constitution of India 1950

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

⁠(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

⁠(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

Draft Article 145 ( Article 165) was debated on 1st June 1949. It created the position of Advocate-General in each state, and set out the conditions of service for the role.

One member proposed to insert the following after clause (2):

‘(2a) In the performance of his duties the Advocate-General shall have the right of audience in all courts in the State of which he is attached and when appearing for such State, also in all other courts within the territory of India including the Supreme Court.‘

He believed that it was necessary for the Advocate-General to have the right of audience in all courts in the territory of India. This was analogous to the powers of the Attorney-General of India under Draft Article 63 (Article 76), and the Public Prosecutor under the Code of Civil Procedure. He argued that if this amendment was not accepted, it could cause difficulties as the Advocate-General would have to obtain separate authorisation every time he was required to appear in the courts of another state. Another member supported this amendment, contending that it would also allow eminent jurists who are not enrolled in any High Court to be appointed as an Advocate-General. A member of the Drafting Committee responded that unlike the Attorney General, who was meant to represent the central government’s interests throughout the country, the Advocate General was supposed to only represent the state government within the state; therefore the amendment was unnecessary. This amendment was rejected by the Assembly.

The same member proposed another amendment to substitute clauses (3) and (4) with a provision for the Advocate-General to hold office at the pleasure of the Governor. He argued that the present Draft Article made the tenure of the Advocate-General subject to party politics, which made him vulnerable to executive interference. This amendment was accepted by the Chairman of the Drafting Committee and adopted by the Assembly.

The amended Draft Article was adopted on 1st June 1949