Constitution of India
Article 165: Advocate-General for the State
Part VI — The States (Chapter II — The Executive)
Clause (1)
WHAT IT SAYS: The Governor of each State shall appoint a person qualified to be appointed a Judge of a High Court to be Advocate-General for the State. WHAT IT MEANS: Only a person with 10+ years of High Court advocacy or 10+ years of judicial office can be appointed; the Governor makes the appointment (in practice, on advice of the Chief Minister). KEY DOCTRINE: Doctrine of Pleasure — the appointment is at the discretion of the Governor, mirroring the Attorney General's appointment by the President under Article 76(1).
Clause (2)
WHAT IT SAYS: The Advocate-General's duty is to advise the State Government on legal matters referred by the Governor, perform legal duties assigned by the Governor, and discharge functions conferred by the Constitution or any other law. WHAT IT MEANS: His role is threefold — (a) legal advisor to the State, (b) performer of legal duties assigned by the Governor, (c) discharger of constitutional and statutory functions. He is NOT a government servant but a constitutional authority. KEY DOCTRINE: Advisory Role Doctrine — the office is purely advisory and legal, not executive; the AG cannot independently initiate legal action without government reference.
Clause (3)
WHAT IT SAYS: The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine. WHAT IT MEANS: 1. No fixed tenure — can be removed any time without cause or procedure. 2. No constitutionally fixed salary — remuneration decided by the Governor (usually paid from Consolidated Fund of State). 3. Constitution does not prescribe grounds for removal. KEY DOCTRINE: Pleasure Doctrine — identical to the 'during pleasure' tenure under Article 76(4) for the Attorney General; confers flexibility but raises concerns of political vulnerability.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 55 Original provision: The Governor of each Province shall appoint an Advocate-General qualified as a High Court judge, holding office at the Governor's pleasure with remuneration as determined by the Governor. What India kept: Virtually identical structure — appointment, qualification, duties, pleasure tenure, and Governor-determined remuneration. 2. British Constitutional Convention — Office of Attorney General (UK) Original provision: The Attorney General in Britain serves as the chief legal advisor to the Crown and holds quasi-ministerial status. What India kept: Advisory and representational role, but rejected ministerial status for the Advocate-General. 3. Article 76 (Attorney General of India) — Mirror provision at Union level Original provision: President appoints Attorney General qualified as Supreme Court judge. What India kept: Article 165 is a state-level replica of Article 76, adapted for federal structure. INDIA'S SPECIFIC ADAPTATIONS: 1. No right of audience in all courts across India — Unlike the Attorney General (Art. 76(3)), the AG's audience is limited to courts within the state, reflecting India's federal design. 2. No ministerial status — The CAD rejected the British model of giving Advocate-General ministerial rank, to maintain separation between legal advice and political office. 3. No fixed tenure or removal procedure — Deliberate choice to keep the AG flexible and responsive to changing state governments, unlike judges who have fixed tenure.
Constituent Assembly Debate
DEBATED ON: 1st June 1949 (CAD Volume VIII) DRAFT ARTICLE NUMBER: Draft Article 145 KEY SPEAKERS: 1. Mr. Naziruddin Ahmad — Proposed two amendments: (a) right of audience in all courts in India for AG (rejected); (b) substitution of clauses (3) and (4) with 'pleasure of Governor' provision (accepted). 2. Shri K.M. Munshi (Drafting Committee) — Opposed the right-of-audience amendment, arguing that unlike the Attorney General who represents the Centre nationwide, the Advocate-General represents only the State within the State. 3. Prof. Shibban Lal Saksena (United Provinces) — Suggested adopting the British model where the Advocate-General has the status of a Minister. 4. Dr. P.K. Sen — Supported ministerial status for the AG to enable effective influence on legislation. 5. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Accepted Ahmad's amendment on pleasure tenure; showed indifference to the ministerial status proposal. MAJOR DISAGREEMENTS: 1. Right of audience in all Indian courts — Naziruddin Ahmad proposed it; K.M. Munshi and the Drafting Committee opposed it as unnecessary for a state-level officer. Rejected by the Assembly. 2. Ministerial status for AG — Prof. Shibban Lal Saksena and Dr. P.K. Sen favoured British-style ministerial status; Ambedkar and others were indifferent. Not adopted. 3. Original clauses (3) and (4) tied AG's tenure to Chief Minister's tenure — Ahmad argued this made AG vulnerable to party politics. His substitute 'pleasure of Governor' clause was accepted. FINAL OUTCOME: The amended Draft Article 145 was adopted on 1st June 1949 — right of audience amendment rejected, pleasure tenure amendment accepted, ministerial status proposal not adopted. AMBEDKAR'S KEY QUOTE: Dr. Ambedkar accepted Ahmad's amendment on pleasure tenure without detailed oral argument, indicating tacit agreement that the AG should not be tied to the Chief Minister's political fortunes.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Joginder Singh Wasu v. State of Punjab (1994) — SC held: 'The office of the Advocate General is an exalted one. He is the highest law officer of the State.' Affirmed Governor's power to determine and alter AG's remuneration under Article 165(3). 2. State of Punjab v. Balbir Singh (1994) — SC discussed the AG's role in representing the State in court and reaffirmed the duty to act in public interest and in accordance with law. 3. M.T. Khan v. Government of A.P. — Court examined that appointments and removals of government counsel (including AG) are subject to executive discretion under the pleasure doctrine of Article 165. 4. A.G. of Uttarakhand Challenge (PIL) — High Court observed that Clause (1) of Article 165 insists the Governor shall appoint a person qualified under Article 217 — the qualification requirement is mandatory, not directory. NOTABLE DISSENTS: 1. No recorded major dissent on Article 165 interpretation in landmark cases. SCHOLARS & JURISTS: 1. D.D. Basu — The Advocate-General is the state counterpart of the Attorney General; Art. 165 closely follows Art. 76 except for omission of clause (3) on right of audience in all courts. 2. M.P. Jain — Article 165 establishes the AG as a constitutional authority, not a government servant; his independence is critical for the rule of law at state level. 3. H.M. Seervai — The 'pleasure of the Governor' doctrine under Article 165(3) mirrors Section 55(3) of the Government of India Act, 1935, maintaining constitutional continuity.