The Attorney General of India
The Attorney-General of India is the first law officer of the Government of India. His duties are to give advice to the government on legal matters, to perform other legal duties which are referred or assigned to him by the President and to discharge the functions conferred on him by the constitution or any other law. The Attorney-General is appointed by the President and he holds office during the pleasure of the President. His duty shall be: (i) to give advice on 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 (ii) to discharge the functions conferred on him by the Constitution or any other law for the time being in force [Art. 76]. Though the Attorney – General of India is not (as in England) a member of the Cabinet, he shall also have the right to speak in the Houses of Parliament or in any Committee thereof, but shall have no right to vote [Art. 88]. By virtue of his office, he is entitled to the privileges of a member of parliament [Art. 105(4)]. In the performance of his official duties, the Attorney-General shall have a right of audience in all Courts in the territory of India. In order to be appointed as the Attorney General of India, a person must have qualified to be appointed as a Judge of the supreme court. In the performance of his legal duties the Attorney – General enjoys the right of audience in all the courts of India. He is also entitled to take part in the proceedings of the parliament and the parliamentary committees without the right to vote. He represents the Union & the States before the courts but is also allowed to take up private practise provided the other party is not the state. Because of this he is not paid salary but a retainer to be determined by the president. In England, the Attorney-General is a member of the cabinet but in India he is not. It is a political appointment, and , therefore, whenever there is a change in the party in power, the Attorney – General resigns form his past to enable the new government to appoint a nominee of its choice. The Attorney – General is assisted by two solicitors – General and four Additional solicitors – General. The Attorney – General gets a retainer equivalent to the salary of a judge of the supreme court.
The Comptroller And Auditor – General of India
The Comptroller and Auditor – General of India is appointed by the President. He holds office until he attains the age of sixty five years or at the expiry of the six-year term, whichever is earlier. He is the guardian of the public purse. His duties are to keep the accounts of the Union and the States and to ensure that nothing is spent out of the Consolidated Fund of India or of the States without the sanction of the Parliament or the respective State Legislatures. He submits an audit report of the Union to the President who shall lay it before the Parliament and the audit reports of the States to the respective Governors who shall lay it before the respective state Legislatures. In case of Union Territories, the Comptroller and Auditor-General submits audit reports to Lt. Governors where the Union territories have Legislative Assemblies of their own. The accounts of the other Union Territories are audited by him as part of the account of the Union of India. Because of the importance of the office of the Comptroller and Auditor – General, the Constitution contains provisions to ensure the impartiality of the office and to make it independent of the Executive. He can be removed from his office only on ground of prove misbehaviour or incapacity in a manner a Judge of the Supreme Court is remove i.e., each House of the Parliament passing an resolution supported by two-thirds of the members present and voting and by a majority of the House. His salary and conditions of service cannot be changed to his disadvantage during his term of office except under a financial emergency. His salary is charge on the consolidated Fund of India and is not subject to the vote of the Parliament. After retirement he is disqualified for appointment either under the Union or the State. He is paid a salary equivalent to that of a Judge of the Supreme Court. As observed by Ambedkar, the Comptroller and Auditor-General of India shall be the most important officer under the Constitution of India. For, he is to be the guardian of the public purse and it is his duty to see that not a farthing is spent out of the Consolidated Fund of India or of a State without the authority of the appropriate Legislature. In short, he shall be the impartial head of the audit and accounts system of India. In order to discharge this duty property, it is highly essential that this office should be independent of any control of the Executive. The foundation of parliamentary system of Government, as has been already seen, is the responsibility of the Executive to the Legislature and the essence of such control lies in the system of financial control by the Legislature. In order to enable the Legislature to dis¬charge this function property, it is essential that this Legislature should be aided by an agency, fully independent of the Executive, who would scrutinise the financial transactions of the Government and bring the results of such scrutiny before the Legislature. There was an Auditor-General of India even under the Government of India Act, 1935, and that At secured the independence of the Auditor-General by making him irremovable except “in like manner and on the like grounds as a Judge of the Federal Court”. The office of the Comptroller and Auditor-General in the Constitution, is substantially modelled upon that of the Auditor-General under the Government of India Act., 1935.
Provisions for securing Independence
The Constitution has made the following provisions to safeguard and ensure the independence of CAG: 1. He is provided with the security of tenure. He can be removed by the president only in accordance with the procedure mentioned in the Constitution. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him. 2. He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office. 3. His salary and other service conditions are determined by the Parliament. His salary is equal to that of a judge of the Supreme Court. 4. Neither his salary nor his rights in respect of leave of absence, pension or age of retirement can be altered to his disadvantage after his appointment. 5. The conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the CAG are prescribed by the president after consultation with the CAG. 6. The administrative expenses of the office of the CAG, including all salaries, allowances and pensions of persons serving in that office are charged upon the Consolidated Fund of India. Thus, they are no subject to the vote of Parliament. Further, no minister can represent the CAG in Parliament (both Houses) and no minister can be called upon to take any responsibility) for any actions done by him.
The House of the people is presided over by the Speaker who is elected by the House from among its own members. The office of the Speaker has been held in great esteem throughout the history of over three hundred years of Parliamentary Government in Britain. This is because of the manner in which he has discharged his responsibilities as a presiding officer, the detachment and objectivity which he brought to bear upon all his decision. That the framers of India’s constitution were quite conscious of this role of impartiality of the Speaker is evident from the provisions in the Constitution that deal with the office of the Speaker. For instance, Article 94 (c) provides for the removal of the Speaker by a resolution of the House passed by a majority of all the then members of the House. Removal of officers from their position in this manner, namely, by such special resolutions and by such special majorities is restricted to only a few officers such as the President, the Vice-President, the Presiding Officers of both House of Parliament, Judges of the Supreme Court, etc, as these officers are expected to discharge their responsibilities without political and party considerations. The importance of the office of the Speaker can be seen also from the function that he performs and the powers that he exercises. He presides over the meetings of the House. He adjourns the House or suspends its meeting if there is no quorum. While questions are decided in the House, he is not entitled to vote in the first instance (which emphasises his impartiality) but he shall exercise a casting vote in case of a tie. Any member of the House who resigns his office should address his letter of resignation to the Speaker. The decision of the Speaker as to whether or not a Bill is a money bill shall be final. The Speaker will have to endorse or certify it before such a Bill is transmitted to the Council of States or presented to the President for his assent. He will be consulted along with the Chairman of the Council of States by the President while making rules of procedure with respect to joint sittings of the two House. In such sittings it is the Speaker’s right to preside. In conformity with the Speaker’s power to conduct the business of the House, he is empowered to allow any member to speak in his mother tongue, if he cannot adequately express himself either in Hindi or English. With respect to the discharge of his powers and functions, the Speaker is not answerable to anyone except the House. No court of law can go into the merits of a ruling given by the Speaker. In addition to these Constitutional provisions, the Rules of Procedure of the House confer upon the Speaker a variety of powers in the detailed conduct of the business of the House. Under these, the decision to admit notices of questions, motions, resolutions, bills, amendments, etc. is final. There are certain guiding principles which the Rules of procedure lay down for determining the admissibility of notices of motions, etc. The interpretation of these rules as well as their application to specific situations and circumstances is the prerogative of the Speaker. He is the sole authority for giving priority or urgency to a matter so that it may be placed before the House in the national interest. He is not expected to give reasons for his decisions which cannot be challenged by any member. His powers to maintain discipline in the House and to conduct its proceedings in accordance with the rules are formidable. Similarly his powers in connection with the Constitution as well as the working of Parliamentary Committees also are enormous. The Speaker is thus the guardian and Custodian of the rights and privileges of the members, both in their individual capacity and on the group or party basis. The Speaker, in short, is the representative of the House in its powers, proceedings and dignity. A special feature of the Speaker’s office is that even when the House is dissolved, the Speaker does not vacate his office. He will continue in office until a new Speaker is elected when the new House meets. Parliament is empowered to fix the salary and allowances of the Speaker and these are charged on the Consolidated Fund of India. Within the short period of four decades, during which the Speaker’s office has been in existence, conventions of an abiding nature have already been established and the Speaker has, indeed, become a true symbol of the dignity and independence of the House as well as the guardian of the rights and privileges of its members.
Independence and Impartiality
The following provisions ensure the independence and impartiality of the office of the Speaker: 1. He is provided with a security of tenure. He can be removed only by a resolution passed by the Lok Sabha by an absolute majority (i.e, a majority of the total members of the House) and not by an ordinary majority (i.e, a majority of the members present and voting in the House). This motion of removal can be considered and discussed only when it has the support of at least 50 members. 2. His salaries and allowances are fixed by Parliament. They are charged on the Con-solidated Fund of India and thus are not subject to the annual vote of Parliament. 3. His powers of regulating procedure or conducting business or maintaining order in the House are not subject to the jurisdiction of any Court. 4. His work and conduct cannot be discussed and criticised in the Lok Sabha except on a substantive motion. 5. He cannot vote in the first instance. He can only exercise a casting vote in the event of a tie. This makes the position of Speaker impartial.
Speaker Pro Tem
After each general election the President nominates the senior most member elected as Speaker Pro Tem. He performs the duties of office of the Speaker till the house elects one. Usually the only duty performed by the Speaker Pro Tem is to administer oath to the newly elected members.
The Deputy Speaker who presides over the House in the absence of the Speaker is elected in the same manner in which the Speaker is elected by the House. He can be removed from office also in the same manner. When he sits in the seat of the Speaker, he has all the powers of the Speaker and can perform all his functions. One of his special privileges is that when he is appointed as a member of a Parliamentary Committee, he automatically becomes its Chairman. By virtue of the office that he holds, he has a right to be present at any meeting of any Committee if he so chooses and can preside over its deliberations. His rulings are generally final in any case, so far as they are related to the matter under discussion, but the Speaker may give guidance in the interest of uniformity in practice. Whenever the Deputy Speaker is in doubt, he reserves the matter for the ruling of the Speaker. The Deputy Speaker, however, is otherwise like any ordinary member when the Speaker presides over the House. He may speak like any other member, maintain his party affiliation and vote on propositions before the House as any ordinary member. The Deputy Speaker is entitled to a regular salary.
Duties And Functions Of Speaker
The Speaker is the Chief officer of the Lok Sabha. There is a separate secretarial staff to assist him, popularly known as the Lok Sabha Secretariat. 1. To preside and conduct the proceedings: The Speaker presides over the sittings of the Lok Sabha and controls its working. He is responsible for upholding the dignity and the privileges of the House. When a point of order is raised or any question involving the interpretation of the rules and the precedents of Lok Sabha is raised the Speaker has to interpret the rule and give his ruling. The rulings given by a previous Speaker are regarded as precedents and are generally followed. It is not subject to annual vote in the Parliament. The Speaker can be removed, only by a resolution which must be supported by a majority of all the then members of the House. He cannot be removed by a resolution passed by a majority of the members present and voting. Hence, there is a security of tenure for the Speaker. The speaker may conduct the proceedings in an impartial manner without remaining in constant fear of being removed. 2. Casting Vote: Article 100 provides that the Speaker shall not vote in the first instance, in other words when a question is before the House and a division is called the members may vote for or against the motion (or may abstain from voting). The Speaker cannot participate at this stage. If after counting votes it is found that the votes in favour and against are equal then, the speaker is entitled to cast his vote. Such vote is called casting vote. Thus, the Speaker is entitled to vote only when there is a tie. Under the rules of some companies and societies the presiding officers votes in the first instance and also casts a second vote in case of equality of votes. The second vote is called the casting vote. But the Speaker shall cast vote only once and that too in case of equality. The purpose of giving a casting vote is to resolve a dead lock. 3. Quorum : The Quorum to constitute a meeting of the Lok Sabha is 1/10 of the total number of members. If the quorum is not complete it is the duty of the Speaker to adjourn the House or to suspend the meeting until there is quorum. 4. Joint Sittings: The Speaker also presides over the joint sittings of the two Houses of Parliament. 5. Money Bill: When a Money Bill is transmitted to Rajya Sabha after being passed by Lok Sabha the Speaker makes an endorsement on the Bill to certify that it is a Money Bill. He again certifies the Money Bill when it is presented to the President for assent. On the question whether a Bill is a Money Bill or not, the decision of the Speaker is final. If a Bill contains an endorsement that it is a Money Bill then all those provisions which are applicable to Money Bill apply to it.
Chairman And Deputy Chairman Of The Council Of States
While presiding officers of the house of the people are called the Speaker and the Deputy Speaker, their opposite officers in the Council of States are called the Chairman and the Deputy Chairman respectively. The Vice-President of India is the ex-officio Chairman of the Council of States. As the presiding officer of the Rajya Sabha his functions and powers are the same as those of the Speaker. He is however not a member of the House. In the absence of the Chairman, the Council is presided over by the Deputy Chairman. He is a member of the House and is elected by the members of the House. When he ceases to be a member of the Council, he automatically vacates the office of the Deputy Chairman. He can resign his office by writing to the chairman. He may be removed from his office by a resolution passed by a majority of all the then member of the Council. The Deputy Chairman is empowered to discharge all the functions and to perform all duties of the office of the ‘Chairman, whenever Chairman’s office is vacant or when the Vice-President is acting for the President. As a presiding officer of the Council he is also given a regular salary and other allowances such as Parliament by law has fixed. The Council of States also has a panel of member called Vice-Chairman nominated by the chairman for the purpose of presiding over the House in the absence of both the Chairman and the Deputy Chairman. The Secretariat of the Rajya Sabha is headed by a Secretary who discharges the same functions as his counterpart in the Lok Sabha.
Solicitor General Of India
In addition to the AG, there are other law officers of the Government of India. They are the solicitor general of India and additional solicitor general of India. They assist the Ag in the fulfilment of his official responsibilities. It should be noted here that only the office of the AG is created by the Constitution. In other words, Article 76 does not mention about the solicitor general and additional solicitor general. The AG is not a member of the Central cabinet. There is a separate law minister in the Central cabinet to look after legal matters at the Government level. Advocate General Of The State The constitution (Article 165) has provided for the office of the advocate general for the states. He is the highest law officer in the state. Thus he corresponds to the Attorney General of India.
Appointment and Terms
The advocate general is appointed by the governor. He must be a person who is qualified to be appointed a judge of a high court. In other words, he must be a citizen of India and must have held a judicial office2 for ten years or been an advocate of a high court for ten years. The term of office of the advocate general is not fixed by the Constitution. Further, the Constitution does not contain the procedure and grounds for his removal. He holds office during the pleasure of the governor. This means that he may be removed by the governor at any time. He may also quit his office by submitting his resignation to the governor. Conventionally, he resigns when the government (council of ministers) resigns or is replaced, as he is appointed on its advice. The remuneration of the advocate general is not fixed by the Constitution. He receives such remuneration as the governor may determine.
Duties and Functions
As the chief law officer of the government in the state, the duties of the advocate general include the following: 1. To give advice to the government of the state upon such legal matters which are referred to him by the governor. 2. To perform such other duties of a legal character that are assigned to him by the governor. 3. To discharge the functions conferred on him by the Constitution or any other law. In the performance of his official duties, the advocate general is entitled to appear before any court of law within the state. Further, he has the right to speak and to take part in the proceedings of both the Houses of the state legislature or any committee of the state legislature of which he may be named a member, but without a right to vote. He enjoys all the privileges and immunities that are available to a member of the state legislature.