Notice to A-G not necessary in plea challenging subordinate legislation

Source: The Hitavada      Date: 14 Apr 2018 08:51:02


Staff Reporter,

Is it necessary to issue a notice to Attorney General or Advocate General whenever any central or state enactment or of any subordinate legislation including that of any statutory instrument ? Answering this important question, Nagpur bench of Bombay High Court has held that in case of challenge to subordinate legislation in the form of statutory instrument, no notice is required to be issued either to the Attorney General or Advocate General, as the case may be, since the department concerned is already represented and both constitutional functionaries in any case have right to audience in every court to maintain decorum of the court. Role of the Attorney­General and the Advocate­General under the Indian Constitution can be described as parens patriae (parental authority) with further authority of bringing an end to a trial of an indictment by entering a nolle prosequi (do not pursue or prosecute).

Referring to provision under Order XXVII­A, Rule 1­A of the Code of Civil Procedure, Justice Ravi Deshpande pointed out that it does not require issuance of notice to the Attorney­General, if the challenge is to the constitutional validity of the subordinate legislation in the form of rules, regulations, bye­laws, order or control order, scheme, manual, etc., issued in exercise of the statutory power conferred by the Central or the State legislation, described as “statutory instrument”.

The statutory instruments are brought into force by issuing notification in the official gazette and in some cases are placed before the house, which is merely more and manner in which the subordinate legislation, which normally deals with procedural aspects, are brought into force. There is no requirement of getting approval of the Parliament or the State Legislature, and consequently the Attorney­General or the Advocate­General has hardly any role in framing or bringing into force the subordinate legislation, which may affect the rights of individuals or a section of people, but not of public at large.

In proceedings before the High Court under Article 226 and 227, invariably, the Central or the State Government, through its concerned Department, which has framed the “statutory instrument”, or the statutory bodies bringing into force the subordinate legislation, are the party­respondents, and consequently, the notice of the proposed challenge is issued to the party likely to be affected by grant of declaration regarding its invalidity. There is no further requirement and the High Court can proceed to declare any statutory instrument or any provision therein as invalid, the High Court held.

Justice Ravi Deshpande, authoring this important and well-researched judgement on behalf of bench consisting of Justice Deshpande and Justice M G Giratkar, probably first throwing light on role, duties and powers of Attorney General and Advocate General described their role as “a friend, philosopher and guide of the Court, being the advocates, Officers of the Court and the independent constitutional functionaries, whose legal opinion is not controlled either by the Parliamentarians, Legislators or Executives. It is their duty to express their real, free, fair, impartial, genuine and unbiased opinion to attain the goal of the Constitution while supporting the competency of the Parliament or of the State Legislature, as the case may be, or while protecting the rights of citizens, who are either the beneficiaries of the provision or likely to be adversely affected by its introduction.”  The most important duty of the Attorney­General and the Advocate­General is to see that the lawyers and litigants maintain decorum while in Courts and that the authority, image and dignity of the Courts is maintained by one and all and it is not undermined or lowered down, Justice Deshpande noted.


Role of Attorney-General and Advocate-General 

Both are legal luminaries, not political personalities, independent constitutional functionaries

Both of them are supposed to possess the qualities of liasioning officer to abridge gap between Legislature, Executive and Judiciary in administration of justice.

Special role and powers as caretaker of public nuisance or other wrongful acts affecting public

In case of criminal contempt, A-G is competent to either institute or grant sanction to institute such proceedings

A-G entrusted to see that the process and valuable time of the Court is not consumed in institution and prosecution of vexatious and frivolous litigation