Constitution of India

Article 165- Advocate-General for the State.

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.

165. Advocate-General for the State.—(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.

Corresponding to the office of the Attorney-General at the Union level (article 76), article 165 provides for an Advocate-General for each State appointed by the Governor i.e., in effect by the Ministry. The Advocate-General is the Chief Law Officer of the State and by long standing convention he is entitled to precedence in the matter of audience in all courts in the State in the same manner as the Attorney-General of India gets precedence in all courts throughout India vide article 75(3), although it is not specifically mentioned in article 165.

Holding office during the pleasure of the Governor means during the pleasure of the Ministry. Therefore, although the Constituent Assembly had rejected the proposal to require the Advocate-General to retire with the Ministry that appointed him, a convention has grown for every Advocate-General to resign from his office whenever there is a change of Government in the State.

Under article 177, the Advocate-General has the right to speak and otherwise participate (without right to vote) in the proceedings of the State Legislature.

When considering the qualification of a person for appointment as an Advocate-General, the question is only whether he is qualified to be appointed as a Judge of the High Court as laid down in article 217 (2), and not whether he has attained the age at which he would have to retire had he been appointed a Judge of the High Court. The appointment of an Advocate-General under article 165 might stand on a different footing from that of a judge under article 217, because of the special provision in article 165(3) that the Advocate-General is to hold office at pleasure, whereas a judge holds office during good behaviour.
Any concession made by the Government pleader in the trial court cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officers. But the same yard stick cannot be applied when the Advocate-General has made a statement across the bar since the Advocate-General makes the statement with all responsibility and it binds the State.
The Advocate-General or the acting Advocate-General is entitled pre-audience over all other advocates in respect of all business over other advocates.

The fee of the Advocate-General for appearing before the court on behalf of the Government may be settled between him and the Government but there is no provision to the effect that it cannot be changed to the disadvantage of the Advocate-General.

Source: Subhash C Kashyap, Constitutional Law of India, Universal

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