Article 165 does not say that the advocate general is the exclusive legal adviser of the governor.
Article 165 creates the office of the advocate general for the state. Article 165(2) provides that it is the advocate general’s duty to advise the govt of the state on 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. Article 165 does not say that the advocate general is the exclusive legal adviser of the governor. If the Constitution intended to impose an exclusivity rule of such significance, one would ordinarily expect some textual or structural indication of it; that indication is not readily apparent in Article 165. He cannot exercise the governor’s powers or make decisions under Article 200. Article 163 must also be handled carefully. There are several situations in which a governor may reasonably wish to obtain a second constitutional opinion: Questions concerning the scope of the governor’s powers Disputes involving appointments in which the governor has a statutory or constitutional role Questions concerning bills presented under Article 200 Questions concerning reservation of bills for the President Govt formation and competing constitutional claims Questions concerning majority or floor tests Constitutional reports or situations involving Article 356
The real questions are, therefore: What exactly has been created? Can a governor appoint or consult a personal legal adviser when the Constitution already provides for an advocate general? Tamil Nadu governor recently appointed his own ‘counsel’, triggering this debate in legal domain. There is certainly a legitimate debate about how such an adviser may be appointed, what functions may be assigned to him, what facilities may be provided and whether public funds may be spent on him. But that is a different question from saying that a governor can never obtain independent legal advice. It provides that the governor shall appoint a person qualified to be a high court judge as advocate general. That unquestionably establishes the constitutional position of the advocate general. But where is the prohibition? Nor does it say that a governor confronted with a difficult constitutional question concerning his own office is legally barred from obtaining another professional opinion. A power to refer legal duties to the advocate general is not necessarily the same thing as an exclusive obligation to refer every legal question to him. The advocate general can advise the governor. The governor can seek another opinion. This is where the distinction between constitutional office and professional legal advice becomes critical. A private lawyer consulted by the governor does not thereby become a constitutional authority. He cannot summon the council of ministers or reserve a bill for the consideration of the President. He cannot perform the constitutional functions of the governor. He can only advise. The governor decides. What if the governor and the state govt take different legal views? The governor ordinarily functions on the aid and advice of the council of ministers, subject to those situations in which the Constitution requires or permits the governor to exercise a distinct constitutional judgment. Consider a situation in which the governor is required to determine the constitutional limits of his own office while the state govt takes a different legal position. The question is not whether the advocate general is a competent lawyer. The narrower question is: Does the Constitution compel the governor, whenever he seeks legal advice, to obtain it only from the advocate general? Govts routinely obtain professional advice from lawyers, consultants, experts and specialists under executive or administrative arrangements, subject to applicable law, financial rules and constitutional limitations. By what authority? With what functions? And at whose expense? If public money is spent, and facilities provided, there must be lawful authority for that expenditure. If confidential state material is shared, appropriate safeguards must exist. But they do not, by themselves, establish a general constitutional rule that the governor can never consult an independent lawyer. The Keralam experience is worth examining; not as a constitutional precedent, but as evidence that the proposition is not self-evident in constitutional practice. Keralam has an advocate general and other state law officers, yet there have been instances in which the governor has had access to separate legal advice. That practice, by itself, does not establish constitutional validity. But neither can it simply be ignored. The governor is not a free-standing constitutional act or entitled to disregard the elected govt whenever he chooses. The constitutional scheme makes aid and advice the general rule, subject to the limited situations in which the Constitution requires or permits a different exercise of judgment. But that principle does not answer the separate question of who may provide legal advice to the governor.
But preserving the constitutional position of the advocate general does not necessarily require converting Article 165 into a prohibition against every other form of professional legal advice. The governor cannot use an adviser as a device to escape the constitutional discipline of Article 163 or any other provision. The debate should therefore be framed more precisely.
But none of those propositions necessarily leads to the conclusion that the governor is forbidden from obtaining an independent professional opinion. (The writer is an advocate practising in Madras high court ) Email your feedback with name and address to [email protected] You Can Also Check: Gold Rate in Chennai | Silver Rate in Chennai | Bank Holidays in Chennai | Public Holidays in Chennai | Chennai AQI | Weather in Chennai | Petrol Price in Chennai | Diesel Price in Chennai | CNG Price in Chennai | LPG Price in Chennai Stay updated with the latest Chennai news. Those objections can and should be tested. But they are different from saying that the governor is constitutionally confined to one lawyer. There is also an important institutional principle at stake. The advocate general is the state’s constitutional law officer, that office must be respected and its constitutional functions preserved. The Constitution creates offices. It does not create monopolies unless the constitutional text or necessary implication requires it. The governor cannot create a parallel constitutional authority. The governor cannot confer upon a private lawyer the powers of the advocate general. And the govt cannot spend public money or create public posts without lawful authority. Download the TOI App.
The strongest objection to a particular appointment, therefore, may not be that Article 165 automatically prohibits an independent legal adviser. Disputes where the precise relationship between the governor and the Council of The point is not that the governor has an unfettered right to act independently in all these matters. He does not. The point is narrower: The governor may sometimes need to understand independently what the Constitution permits him to do. The stronger constitutional questions are whether the arrangement: Creates a new public office without lawful authority Duplicates the advocate general’s constitutionally assigned functions Bypasses applicable financial or administrative rules Gives access to public resources without proper authority Purports to confer powers that the Constitution has not given the adviser