1965 (9) TMI 82 - SC - Indian Laws

Advocate-General may represent private parties, including in contempt, unless statute or rule prohibits; Art.165(2) and Rule 10(b) upheld

The SC set aside the HC order that disallowed the Advocate-General from defending the appellant in contempt proceedings, holding the Advocate-General may ... - ISSUES PRESENTED AND CONSIDERED 1. Whether the Advocate-General of a State is entitled to appear on behalf of a private party (including a special magistrate) in contempt proceedings instituted in a High Court. 2. Whether the State Government may assign to the Advocate-General the defence of a private party in contempt proceedings under Article 165(2) as a 'duty of a legal character.' 3. The effect of departmental rules (not statutory) regulating Law Officers - in particular Rules 8(c), 41(5) and 10(b) of the Government's Legal Remembrance's Manual - on the Advocate-General's right to appear in contempt proceedings or to advise/assist private parties. 4. Whether the Advocate-General's power to decide (under Rule 10(b)) whether a private matter is one in which Government may later be interested is objectionable as a matter of law or professional ethics. 5. Whether prior decisions of the High Court concerning the Government Advocate's role in contempt proceedings are controlling on the question of the Advocate-General's right to appear for a private party. 6. Whether any purported 'anomaly' arising from the Government Advocate prosecuting a contempt and the Advocate-General opposing it justifies prohibiting the Advocate-General from appearing. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Advocate-General's entitlement to appear for a private party in contempt proceedings Legal framework: Article 165(1)-(3) prescribes appointment, duties and tenure/remuneration of the Advocate-General; Section 14 of the Indian Bar Councils Act, 1926 (as then applicable) preserved his right to practise as an Advocate. Precedent treatment: High Court's decisions cited related mainly to the Government Advocate (Public Prosecutor) and his inability to defend State servants in contempt proceedings under departmental rules; those decisions were treated as concerning the Government Advocate, not the Advocate-General. Interpretation and reasoning: The Advocate-General's constitutional duties include giving legal advice to the State and performing other legal duties assigned by the Governor (Art.165(2)). Subject to terms of appointment, he retains the right to practise as an Advocate and therefore prima facie may appear for private parties. Nothing in Article 165 or the Bar Councils Act forbids appearance for private parties, and the State's assignment of such work constitutes a 'duty of a legal character' within Art.165(2). Ratio vs. Obiter: Ratio - Advocate-General, by virtue of Article 165 and statutory right to practise, is entitled to appear for private parties, including in contempt proceedings, unless excluded by relevant lawful rule or provision. Conclusion: Advocate-General is entitled to appear on behalf of a private party in contempt proceedings unless a valid rule or statutory provision precludes such appearance in the particular circumstances. Issue 2 - State's power under Article 165(2) to assign defence of a private party in contempt proceedings to the Advocate-General Legal framework: Article 165(2) empowers assignment of 'such other duties of a legal character' by the Governor; Rule 8 enumerates categories in which Advocate-General shall appear for the State but does not exhaust the scope of Art.165(2). Precedent treatment: High Court held State could not assign to Advocate-General the defence of an opposite party in contempt proceedings based on Rule 8; Supreme Court considered Rule 8 in light of Article 165(2). Interpretation and reasoning: The constitutional provision is broader than departmental rules. A duty to appear for a private party in contempt proceedings, when assigned by the State, is a duty of a legal character and falls within Art.165(2). Rule 8's specification of categories where Advocate-General shall appear for the State does not nullify the Governor's power to assign other legal duties to the Advocate-General. Ratio vs. Obiter: Ratio - The State does have power under Article 165(2) to assign to the Advocate-General the defence of a private party in contempt proceedings as a duty of a legal character. Conclusion: The High Court erred in holding the Government lacked power to assign such work to the Advocate-General; Article 165(2) permits the assignment. Issue 3 - Effect and scope of departmental rules (Rules 8(c) and 41(5)) regarding appearance in contempt proceedings Legal framework: The Legal Remembrance's Manual contains guidance rules for Law Officers; Rule 8(c) lists trials in original criminal jurisdiction as matters for the Advocate-General but expressly omits contempt; Rule 41(5) makes the Government Advocate (Public Prosecutor) personally conduct contempt proceedings in the High Court. Precedent treatment: High Court relied on these rules to preclude Advocate-General's appearance; Supreme Court examined interplay between rules and Article 165. Interpretation and reasoning: Rules 8(c) and 41(5), read together, show an administrative scheme allocating responsibility for contempt proceedings to the Government Advocate. Those rules are not statutory fetters on the constitutional office; they indicate that the Government Advocate is normally in charge of contempt matters. However, they do not extinguish the Advocate-General's constitutional capacity to be assigned other legal duties by the Governor nor his independent status to appear as an Advocate for private parties when so authorized or when no conflict exists. Ratio vs. Obiter: Ratio - Departmental rules which allocate routine responsibility for contempt to the Government Advocate do not, in themselves and absent statutory prohibition, preclude the Advocate-General from appearing for a private party when properly appointed or when acting in his capacity as an Advocate. Conclusion: The departmental rules show customary allocation but do not legally bar the Advocate-General from appearing in contempt proceedings in the circumstances of the present case; the High Court misapplied those rules to justify exclusion. Issue 4 - Rule 10(b): Discretion of the Advocate-General to refuse to advise private parties where Government may be interested Legal framework: Rule 10(b) disbars the Advocate-General from giving legal advice to private persons on matters in respect of which, in his opinion, he is likely to be called upon to advise the Government. Precedent treatment: High Court considered Rule 10(b) and rejected leaving the decision to Advocate-General's discretion as ineffective; Supreme Court reviewed the plain words and constitutional status of the office. Interpretation and reasoning: Given the Advocate-General's constitutional status and professional duties, it is appropriate to leave to his judgment the question whether a private matter is one in which the Government may later seek his advice. The rule presumes the Advocate-General will act in accordance with professional ethics; the High Court's objection that the prohibition would lose force if left to his opinion misconstrues the rule's terms and purpose. Moreover, filing an appearance as Advocate-General and as Advocate indicates that the Advocate-General formed the requisite view under Rule 10(b). Ratio vs. Obiter: Ratio - Rule 10(b)'s vesting of discretion in the Advocate-General is lawful and not void for indefiniteness; the Advocate-General may decide whether a private matter is potentially governmental, subject to professional obligations. Conclusion: The High Court erred in treating the discretion as invalid or in requiring independent proof that the Advocate-General had formed an opinion; the rule properly leaves the decision to him. Issue 5 - Alleged anomaly of Government Advocate prosecuting and Advocate-General defending Legal framework: Distinction between Government Advocate's role as Public Prosecutor (Rule 41(5)) and Advocate-General's functions; professional rights to appear for private parties. Precedent treatment: High Court regarded such a situation as 'incongruous' and used it to justify exclusion; Supreme Court addressed whether such perceived anomaly can negate the Advocate-General's right to appear. Interpretation and reasoning: The possibility that Government Advocate may prosecute while Advocate-General opposes does not by itself create a legal bar. Professional practice and constitutional office-holders can occupy different roles; the mere existence of an apparent anomaly is not a valid ground to deny the Advocate-General the right to appear where otherwise permissible. Ratio vs. Obiter: Ratio - Alleged incongruity does not legally preclude the Advocate-General from appearing for a private party. Conclusion: The High Court's reliance on the alleged anomaly was untenable as a ground for disallowing appearance. Issue 6 - Relevance of prior High Court authorities concerning the Government Advocate Legal framework: Distinguishing the offices of Government Advocate and Advocate-General; applicability of departmental rules to each office. Precedent treatment: Previous High Court decisions held Government Advocate could not defend State servants in contempt prosecutions; Supreme Court distinguished those decisions as concerning the Government Advocate and Rule 41(5). Interpretation and reasoning: Decisions concerning the Government Advocate's duties under departmental rules and statutory role as Public Prosecutor do not control the question of the Advocate-General's right to appear where Article 165(2) and the Advocate-General's right to practise are in play. The factual and legal contexts differ materially. Ratio vs. Obiter: Ratio - Prior decisions about the Government Advocate do not bar the Advocate-General's appearance in the instant circumstances and were therefore misapplied by the High Court. Conclusion: The High Court erred in treating those precedents as dispositive of the present question. Relief and ancillary observation Conclusion: The High Court's order disallowing the Advocate-General from defending the appellant in the contempt proceedings was set aside. Costs awarded against the contemnor (respondent) were directed given the undue delay in disposition of the proceedings.