Can a governor appoint or consult a personal legal adviser when the Constitution provides for an advocate general? Tamil Nadu governor recently appointed his own ‘counsel’, triggering this debate in legal domain.There is a legitimate debate about how such an adviser may be appointed, what functions may be assigned to him, what facilities may be provided and whether public funds may be spent on him.But that is a different question from saying that a governor can never obtain independent legal advice.Article 165 creates the office of the advocate general for the state. It provides that the governor shall appoint a person qualified to be a high court judge as advocate general. Article 165(2) provides that it is the advocate general’s duty to advise the govt of the state on 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 governor. That unquestionably establishes the constitutional position of the advocate general. But where is the prohibition?Article 165 does not say that the advocate general is the exclusive legal adviser of the governor. Nor does it say that a governor confronted with a difficult constitutional question concerning his own office is legally barred from obtaining another professional opinion.A power to refer legal duties to the advocate general is not necessarily the same thing as an exclusive obligation to refer every legal question to him. If the Constitution intended to impose an exclusivity rule of such significance, one would ordinarily expect some textual or structural indication of it; that indication is not readily apparent in Article 165. The advocate general can advise the governor. The governor can seek another opinion.This is where the distinction between constitutional office and professional legal advice becomes critical. A private lawyer consulted by the governor does not thereby become a constitutional authority. He cannot exercise the governor’s powers or make decisions under Article 200. He cannot summon the council of ministers or reserve a bill for the consideration of the President. He cannot perform the constitutional functions of the governor. He can only advise. The governor decides.What if the governor and the state govt take different legal views? The governor ordinarily functions on the aid and advice of the council of ministers, subject to those situations in which the Constitution requires or permits the governor to exercise a distinct constitutional judgment. Consider a situation in which the governor is required to determine the constitutional limits of his own office while the state govt takes a different legal position. The question is not whether the advocate general is a competent lawyer. The narrower question is: Does the Constitution compel the governor, whenever he seeks legal advice, to obtain it only from the advocate general?Govts routinely obtain professional advice from lawyers, consultants, experts and specialists under executive or administrative arrangements, subject to applicable law, financial rules and constitutional limitations.The real questions are, therefore:What exactly has been created? By what authority? With what functions? And at whose expense? If public money is spent, and facilities provided, there must be lawful authority for that expenditure. If confidential state material is shared, appropriate safeguards must exist. But they do not, by themselves, establish a general constitutional rule that the governor can never consult an independent lawyer.The Keralam experience is worth examining; not as a constitutional precedent, but as evidence that the proposition is not self-evident in constitutional practice. Keralam has an advocate general and other state law officers, yet there have been instances in which the governor has had access to separate legal advice. That practice, by itself, does not establish constitutional validity. But neither can it simply be ignored.Article 163 must also be handled carefully. The governor is not a free-standing constitutional act or entitled to disregard the elected govt whenever he chooses. The constitutional scheme makes aid and advice the general rule, subject to the limited situations in which the Constitution requires or permits a different exercise of judgment. But that principle does not answer the separate question of who may provide legal advice to the governor.There are several situations in which a governor may reasonably wish to obtain a second constitutional opinion:Questions concerning the scope of the governor’s powersDisputes involving appointments in which the governor has a statutory or constitutional roleQuestions concerning bills presented under Article 200Questions concerning reservation of bills for the PresidentGovt formation and competing constitutional claimsQuestions concerning majority or floor testsConstitutional reports or situations involving Article 356Disputes where the precise relationship between the governor and the Council ofThe point is not that the governor has an unfettered right to act independently in all these matters. He does not. The point is narrower: The governor may sometimes need to understand independently what the Constitution permits him to do. The strongest objection to a particular appointment, therefore, may not be that Article 165 automatically prohibits an independent legal adviser. The stronger constitutional questions are whether the arrangement:Creates a new public office without lawful authorityDuplicates the advocate general’s constitutionally assigned functionsBypasses applicable financial or administrative rulesGives access to public resources without proper authorityPurports to confer powers that the Constitution has not given the adviserThose objections can and should be tested. But they are different from saying that the governor is constitutionally confined to one lawyer. There is also an important institutional principle at stake. The advocate general is the state’s constitutional law officer, that office must be respected and its constitutional functions preserved. But preserving the constitutional position of the advocate general does not necessarily require converting Article 165 into a prohibition against every other form of professional legal advice. The Constitution creates offices. It does not create monopolies unless the constitutional text or necessary implication requires it.The debate should therefore be framed more precisely. The governor cannot create a parallel constitutional authority. The governor cannot confer upon a private lawyer the powers of the advocate general. The governor cannot use an adviser as a device to escape the constitutional discipline of Article 163 or any other provision. And the govt cannot spend public money or create public posts without lawful authority.But none of those propositions necessarily leads to the conclusion that the governor is forbidden from obtaining an independent professional opinion.(The writer is an advocate practising in Madras high court)Email your feedback with name and address to southpole.toi@timesofindia.com
