The Supreme Court of India has been in the news as of late. The Court has heard and continues to hear some interesting petitions and challenges. These include the petition by Alt News Founder Mohammed Zubair to quash the FIR registered against him over his tweet terming Yati Narasinghanand Saraswati, Bajrang Muni and Anand Swaroop as ‘hate mongers’, the petition challenging the Governor’s decision to order a floor test in Maharashtra, petition seeking inquiry in the alleged encounter of gangster Vikas Dubey etc.
Just like the Court, its premier legal officer has also been in the news. Interestingly, the government’s defence in the above-mentioned petitions and various others has been put forth by the Solicitor General for India (“SG”) Mr. Tushar Mehta, the second highest law officer of the country, and not the Attorney General for India (“AG”), who is the highest law officer. However, the point of this post is not to raise eyebrows on the government’s move but to discuss the position of the Solicitor General, given the rise in his appearance in key cases.
In this post, I will discuss the origins of the post, along with its responsibilities and limitations.
A. Origins of the Post-
The Constitution of India has no mention of the position of a Solicitor General. The only law officer mentioned in the Constitution is the Attorney General, who was supposed to perform all duties of a legal character towards the government, including appearing on behalf of the government before any court in India. Article 76 deals with the position and reads,
“(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
(2) It shall be the duty of the Attorney-General to give advice to the Government of India 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 President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India.
(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.”
However, shortly after the enactment of the Constitution it was felt that given the rise in work, one law officer was not enough. India’s first AG MC Setalvad recalls in his memoir ‘Life- Law and Other Things’ that in May 1951 Law Secretary K. Sundaram suggested that it was necessary to create an additional law officer and decided to name it Solicitor General for India (following the practice in the UK). While both these positions were similar in nature, there was a key difference. Unlike the Attorney General, the Solicitor General’s position was not to have a constitutional or statutory status. Mr. C.K. Daphtary became the first Solicitor General of the country.
Usually, the proposal for appointment of the Solicitor General is moved by the Law Secretary in the Department of Legal Affairs, after which the proposal goes for an approval to the Ministry of Law & Justice. After obtaining the said approval, it is sent to the Appointment Committee of the Cabinet which consists of the Prime Minister and the Minister for Home Affairs. On approval, the Law Ministry issues a notification of appointment. The Solicitor General holds her/his office for a term of three years and is also eligible for re-appointment for another term.
B. Duties and Role of the Solicitor General:
The Law Officers (Conditions of Service) Rules, 1987 (“Rules”) govern the duties and responsibilities of the Solicitor General along with other Law Officers (which include the Attorney General and Additional Solicitor Generals). Rule 5 lists the obligations of the Law Officers. They are:
- To advise the Government of India on legal matters that may be assigned;
- To appear on behalf of the Government of India (in the Supreme Court or in any High Court), if the government is a party to a case or is interested in it;
- To represent the Government of India in a reference made by the President to the Supreme Court under Article 143 of the Constitution;
- To discharge any other functions that may be conferred on her/him by any law;
In addition to the Government of India, the Solicitor General may also appear on behalf of a state government, or any University, Government School or College, local authority, Public Service Commission, Port Trust, Port Commissioners, Government aided or Government managed hospitals, a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), any Corporation owned or controlled by the State, any body or institution in which the Government has a preponderating interest.
However, s/he can appear for the above-mentioned bodies only after a proposal/reference to that effect has been received through the Ministry of Law and Justice, Department of Legal Affairs.
In addition to the duties, the Solicitor General has two key powers:
- S/he can grant consent to initiate proceedings of criminal contempt of the Supreme Court against any person, if approached (Section 15, Contempt of Courts Act, 1971).
- S/he has the right of pre-audience over all other advocates, with the exception of the Attorney General (Section 23, Advocates Act, 1961).
C. Limitations on the Solicitor General:
Rule 8 bars the Solicitor General and other Law Officers from committing the following activities:
- Appearing for parties other than the ones mentioned above;
- Advising any party against the Government of India or a Public Sector Undertaking, or in cases where s/he may appear for the Government of India or a Public Sector Undertaking;
- Defending an accused person in a criminal case without the permission of the Government of India;
- Accepting any appointment to any office in any company or corporation without the permission of the Government of India
Interestingly, in the early years of the Constitution the Attorney General and Solicitor General were allowed to appear in private matters, in addition to cases involving the government. There is a famous anecdote concerning the first Attorney General Mr. M.C. Setalvad who once appeared before Chief Justice Mahajan representing an impecunious man. Seeing the AG appear for a private client, the Chief Justice remarked (humorously) ‘It was a puzzle that the client managed to obtain the views of the Attorney General.’ To this Setalvad replied in his traditional stern fashion, ‘My Lord! The Attorney General does not always appear for fees.’ (This anecdote is mentioned in Setalvad’s memoir)
Arguably, the decision to restrict the private practice of the Law Officers was taken after the retirement of Setalvad. This finds support in his memoir where he writes about an incident wherein his successor CK Daphtary told him that he was being pressurised by the government to accept the condition that the Attorney General can no longer take private briefs and s/he must only take briefs from the Government of India, Government of a State or state owned or state controller corporations.
Today, Rule 10 empowers the Central Government to relax the restrictions on appearance, if it feels it is necessary or expedient to do so. However, reasons for doing so must be recorded in writing. Using this provision, the central government in the year 2015 allowed Attorney General Mukul Rohatgi to appear for a private party i.e., four-star Bar owners in Kerala in their appeal challenging the government’s liquor policy. Similarly, in the year 2017 the government allowed Additional Solicitor General Tushar Mehta to represent Jay Shah (a private client) in a defamation suit against the news portal Wire.
Interestingly, few years before granting these permissions, the Union Law Ministry had issued an Office Memorandum stating that in light of the rise in requests by Law Officers to appear in private cases, such permission would be granted only in exceptional circumstances.
Given the rise in appearances of the Solicitor General in crucial cases, it is imperative for the citizens of India to know about the position, its role and responsibilities. This post was an attempt to do that.