The Governor should have consulted the Advocate General and not the ASG

Punjab Chief Minister Bhagwant Mann and Governor Banwarilal Purohit
[Image Credits – Scroll]

The Governor of Punjab is at loggerheads with the state government. At this stage, this news is not shocking given the plethora of instances where the Governor of a state (appointed by the central government) has overruled or disagreed with a decision of the Cabinet. This is especially common when the governments in the Centre and State belong to different political parties.

In Punjab, the disagreement is over the summoning a special session of the Legislative Assembly. The Cabinet of the AAP government in Punjab had written to Governor Shri Banwarilal Purohit to summon a special session to bring a confidence motion. The Cabinet sought to introduce the motion arguably in response to the accusations that the BJP (the ruling party in the Centre) was trying to topple its government. Governor Purohit passed an order summoning the Assembly; however, he withdrew it later citing lack of specific rules allowing a confidence motion. Interestingly, Governor Purohit has stated that he obtained a legal opinion from Additional Solicitor General of India (‘ASG’) Satya Pal Jain before revoking the order. This act of seeking legal advice is interesting because as per Article 165(2) of the Constitution, the task of advising a state government on legal matters, vests with the Advocate General.

In this post, I argue that the Governor erred by consulting the ASG in place of the Advocate General. I argue that (a) by virtue of Article 165 any legal opinion concerning the state should be first sought from the Advocate General, and (b) the ASG is responsible to advice the central government and not the states.

Article 154 of the Constitution vests the Executive power of the state on the Governor. However, this power is not ‘real’ and is to be exercised on the aid and advice of the Council of Ministers, which is headed by the Chief Minister. In other words, although all executive actions of a state government are in the name of the Governor, the real authority is the Cabinet, and the Governor is a mere figurehead. There are few exceptions to this general rule where the Governor may exercise her/his independent discretion and they are clearly enumerated in the Constitution.

a. Legal Opinion should be sought from the Advocate General:

As per Article 165 of the Constitution, the Governor of every state must appoint an Advocate General. The Article further obligates the Advocate General to advice the state government upon legal matters and perform other duties of a legal character which the Governor may assign to her/him. It should be noted that the Advocate General is one of the two law officers that is granted a constitutional position as per the Constitution, the other being the Attorney General for India.

Speaking on the position of the Advocate General, P.K. Sen (Member of the Constituent Assembly) had remarked,

The Advocate-General at the present moment is no doubt often a lawyer of eminence in the province, but his sole duty and function seems to be to advise the Government on occasions in regard to certain points that arise in cases either between the Government and a private party or between parties which in some manner or other are connected with Government. For instance, there is a trust property in the hands of the Government and the trust is being disputed by somebody or other. In various matters like this the Advocate-General’s opinion is sought. His office is really a bureau of legal advice.”

Given the importance of the position, it is logical to assume that the makers of the Constitution intended for the Governor to obtain her/his legal advice, if required in a situation. On the contrary, the Constitution makes no mention of the position of an ASG. The position has no constitutional or statutory status. Therefore, purely in terms status an Advocate General is arguably higher, given its constitutional grounding.

b. ASG is responsible to advice the central government

The Law Officers (Conditions of Service) Rules, 1987 (“Rules”) lists down the duties and responsibilities of the ASG. As per Rule 5, the duties 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;

It should be noted that the expression “Government of India” in the Rules includes Government of a Union Territory. There is no mention in the Rules stating that the phrase “Government of India” would include state governments as well. Therefore, on a textual reading of the Rules it can be argued that the responsibility of the ASG is to advice the Government of India/Union Territory and not a state government. It is of course possible for him to advice a state government if asked, but it seems illogical that his advice should be sought bypassing the Advocate General.

In conclusion, the Supreme Court has time and again reiterated that the Governor should not function as if s/he has a dominating position over the State Executive or the State Legislature. The recent tussle in Punjab is another example of the Governor trying to exercise his independent discretion overruling a duly elected government. By bypassing constitutional provisions and settled conventions, the Governor is trying to act as ‘super-constitutional authority’, an act which is arguably bad in law.

Such an exercise undoubtedly obtains a political colour, given the fact that the ruling political parties in the Centre and the state are different. The Governor is appointed by the central government and by negating the advice of the state Cabinet, s/he is seen acting on behalf of a political rival, thereby bringing  into question his/her fidelity to the Constitution.

Views are personal.

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