Under Article 22(1) of the Constitution of India, any person who is arrested cannot be denied the right to consult and be defended by a legal practitioner of their choice. Such a contingency does not arise for a Governor because Article 361 grants him protection: he is not answerable to any court for exercising the powers and duties of his office, or for any act done or purported to be done in their performance.
Article 361(2) explicitly bars criminal proceedings against him in any court during his term of office. Sub-clause (3) further specifies that no process for his arrest or imprisonment can be issued by any court while in office. Naturally, if a Governor has personal matters, nothing prevents him from engaging a private lawyer.
Following the demolition of the Babri Masjid (December 1992), the then Chief Minister of Uttar Pradesh, Kalyan Singh, was summoned by the Supreme Court and penalised for contempt for failing to honour his undertaking to protect the structure — a sentence lasting till the rising of the court. Later, on the court's direction, a criminal case was launched against all those responsible for the demolition. Following the dismissal of the UP govt, to shield Kalyan Singh from the criminal trial, the BJP govt appointed him Governor of Rajasthan, granting him immunity under Article 361 for five years.
On September 2, the Lok Bhavan of Tamil Nadu issued an order appointing a Senior Advocate as Legal Advisor to Governor RV Arlekar. Taking effect immediately, the order was curiously signed by the Governor himself. It noted that the appointee's services would be purely pro bono, carrying no remuneration, salary, honorarium, or financial benefits, and that he would handle matters entrusted to him by the Governor from time to time. Although the post carries no fee, the appointee is entitled to travel within and outside Tamil Nadu with the Governor's specific approval, subject to orders of the Tamil Nadu government.
The central question is whether the Governor can appoint his own Legal Advisor, create a post through his own order, and whether such actions are constitutionally permissible.
Apart from referencing legal counsel under Article 22(1), the Constitution provides for only two law officer posts: the Attorney General for India (Article 76) and the Advocate General for the State (Article 165). These two are the principal legal advisors to their respective governments. The Advocate General, appointed by the Governor, is tasked with advising the State government on legal matters, performing assigned duties of a legal character, and discharging functions conferred by the Constitution or any other law for the time being in force.
The Constitution explicitly mandates that the Council of Ministers, with the Chief Minister at its head, aids and advises the Governor in exercising his functions, except where discretionary powers apply. As the titular head of the State, if the Governor faces legal doubts, he is expected to seek the advice of the Advocate General appointed under his own orders.
When the Joseph Vijay government took charge, criticism arose over certain advisors participating in cabinet meetings without authority. Under Article 164(3), Ministers administered by the Governor take both an oath of office and an oath of secrecy. Anyone outside the Cabinet who has not taken this oath cannot legally be privy to state affairs. While the government promptly denied that these advisors attended cabinet meetings, settling the issue, it remains unclear how the Governor can share state matters — including advice received from the Council of Ministers — with a personal legal advisor who is bound by neither an oath of office nor an oath of secrecy.
Beyond the lack of necessity for a Governor to appoint personal counsel when the Constitution provides an Advocate General — who advises both the government and, on summons, the Legislative Assembly under Article 177 — there are statutory limits. First, any government post (whether paid or honorific) can be created only by legislative enactment that determines recruitment and service conditions. Thus, the Governor is barred from creating any post, including a personal legal advisor, without legal sanction. Second, such an act undermines the state's highest constitutional law officer, the Advocate General.
Historically, while the Constitution specifies only the Attorney General for the Union and Advocate Generals for the States, posts such as Solicitor General, Additional Solicitor Generals, and Additional Advocate Generals were subsequently established. Though these designations lend status to law officers at the Centre and States, the Supreme Court has clarified that such officers lack explicit constitutional backing.
When the first Attorney General, MC Setalvad, proved difficult for the central government, the govt created the post of Solicitor General and appointed CK Daphtary to seek alternative counsel. Today, Solicitor General Tushar Mehta routinely defends the govt in critical cases. However, all such central and state law officer posts were established under legal authority — never by executive decree of the President or a Governor, which is impermissible in law.
While the second part of the Governor's order states that travel expenses for his legal advisor require gubernatorial approval subject to state orders, funding for Lok Bhavan's operational expenses requires legislative budgetary approval. Since financial control rests with the government, it must not only protest against this appointment but also curtail unauthorised expenditure created by the Governor’s office. Will the government exercise its constitutional authority here to prevent a precedent akin to the criticised "spoils system" or temporary appointments of the US presidency?
- The writer is a former judge of the Madras High Court