The Curious Case of Delhi and the Position of the Advocate General

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Recently, a petition has been filed before the Hon’ble High Court of Delhi which seeks orders from the Court to appoint an Advocate General (premier law officer of the government) for the National Capital Territory of Delhi (“NCT of Delhi”). It should be noted that NCT of Delhi is a not a state but a Union Territory with special constitutional provisions. Therefore, the petition raises an interesting question of law i.e. whether a Union Territory can appoint an Advocate General, just like the state governments? I aim to throw light on this question of law, in the present post.

The post shall begin by discussing the constitutional provisions concerning an Advocate General (“AG”) in a state. This shall be followed up by discussing whether a Union Territory can also have an AG akin to the States. Thereafter, I shall discuss the present petition concerning the NCT of Delhi and whether under the provisions of law, it can have its own AG.

At the outset, it would be helpful to understand the difference between a State and a Union Territory. A State is an administrative unit that consists of an elected government that governs the territory of that state. It contains within itself all the three organs of governance i.e. legislative, executive and judiciary. It necessarily has a Legislative Assembly and, in some cases, a Legislative Council. A Union Territory on the other hand is an administrative unit that is governed by the Union Government. It only enjoins executive power which is exercised on the instructions of the Union Government and does not have a Legislative Assembly. The Union Territory of Delhi and Puducherry are exceptions to this general definition and shall be explained later.

A. Constitutional Provisions governing the AG-

An AG is the premier law officer of the state government and provides advice to the government on several legal matters. It is a constitutional position created through Article 165 of the Constitution of India (“Constitution”). According to the Article, each State has to appoint an AG, the qualifications of which are equivalent of a Judge of the High Court.

In other words, for a person to be appointed as an AG, she/he has to be a citizen of India and should have held a judicial office in India for at least 10 years or have been an advocate of a High Court for at least 10 years. It should be noted that unlike a High Court Judge, there is no age bar of 62 years for the appointment of an AG (Atlas Cycle Industries, Ltd. v. Their Workmen, AIR 1962 SC 1100).

The AG is appointed by the Governor of the State as per the aid and advise of the Council of Ministers (which is binding) and also holds that office during the pleasure of the Governor. In addition to advising the State government on legal matters, the AG also has a right to speak and/or participate in the proceeding of the Legislative Assembly of the State or Legislative Council (if the State has one). The AG also has the right to participate in the proceedings of any Committee of the Legislature of the State, in which she/he is named as a member (Article 177).

Under the Constitution, only the States have the right to appoint an AG. The Constitution does not contain any provision for the appointment of an AG for the Union Territories. Till 2018, no such appointments were made for any Union Territory. However, in November 2019, the Lieutenant Governor of the Union Territory of Jammu and Kashmir (“J&K”) appointed Advocate D.C. Raina as the AG. The case of the Union Territory of J&K is special because the Jammu and Kashmir Reorganisation Act, 2019 which bifurcated the State of J&K into two Union Territories, had a special provision for the appointment of the AG for the Union Territory.

Section 79 of the J&K Reorganisation Act (worded similar to Article 165 of the Constitution), empowered the Lieutenant Governor (the counterpart of a Governor in a Union Territory) to appoint an AG for the Union Territory. The AG had the same powers and roles as the AG for any State in India.

It would be pertinent to note that J&K is the only Union Territory with an AG and his appointment was possible only because the Act creating the Union Territory vested the LG with the power to do so. Therefore, it can be reasonably concluded that other UTs in India are not entitled to appoint an AG for their territory, as neither the Constitution nor the Act establishing them empowers them to do so.

B. The Curious Case of New Delhi-

The NCT of Delhi unlike the other Union Territories in India has a special status. By virtue of Article 239AA (added in the year 1991) of the Constitution, the NCT of Delhi has a Legislative Assembly that has the power to make laws for its territory with respect to matters in the State List or the Concurrent List (except on matters of public order, police, land).

While I agree that there is no specific provision in the Constitution empowering the NCT of Delhi to appoint an AG, an argument can be made for the appointment on the basis of the executive power of the government. As per Article 239AA, the Executive Power of the NCT of Delhi vests in the Lieutenant Governor who is to act on the aid and advise of the Council of Ministers. The Hon’ble Supreme Court of India in Govt. of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193, held that the executive powers over the NCT of Delhi (on areas within its jurisdiction) have to be exercised by the Delhi Government exclusively.

It should be noted that appointment of law officers is an executive action undertaken by the Lieutenant Governor of the NCT of Delhi. In furtherance thereof, the Government of NCT of Delhi has appointed law officers like Senior Standing Counsels, Standing Counsels, Public Prosecutors etc. In fact, the government’s power to appoint a Public Prosecutor for its territory was upheld by the Supreme Court in the Govt. of NCT of Delhi’s case, where the Court traced the power to Entry 1 and Entry 2, List III of the Seventh Schedule i.e. subjects of criminal law and criminal procedure.

Similarly, the Delhi Government could create a position ‘like an AG’ for the NCT of Delhi and vest in him the powers and functions akin to an AG of a State. The differences between the AG of NCT of Delhi and of the other states would be on the aspects of the nature of the position and the right to participate in the Legislative Assembly. While the AG of a State is a constitutional position and carries with it right to participate in the proceedings of the Legislative Assembly, the AG of Delhi would not be able to do so. A proposal to this effect was made by Late Smt. Sheila Dikshit on the advice of the then Attorney General of India Sh. G.E. Vahanvati.

It may be argued that this suggestion proposes to create a position that was not envisaged in the Constitution for the Union Territories. However, it should be noted that there are instances where positions not constitutionally envisaged have been created by the governments. For instance, the Constitution does not provide for an Additional AG for a State, however, almost every State government in exercise of its executive power under Article 162 has such an Additional AG which enjoys similar powers like the AG [M.T. Khan & Ors v. Government of Andhra Pradesh & Ors., (2004) 2 SCC 267].

Concluding Remarks:

The Petition filed before the Hon’ble High Court of Delhi although raises an interesting point of law, there is a slim chance that it will succeed. Constitutionally, the NGT of Delhi is not empowered to appoint an AG and for the Court to vest that authority on the Government by itself, would be a case of transgressing on the authority of the Parliament. Therefore, in my opinion the only alternative for the NGT of Delhi is to have a legal officer akin to a State’s AG by following the executive action route suggested above.

[Views are personal]

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