Legal opinion not routed through us invalid: Law ministry to other depts

The law ministry has written to all ministries and departments against approaching the AG directly.

india Updated: Apr 22, 2018 23:19 IST
Jatin Gandhi
Jatin Gandhi
Hindustan Times, New Delhi
Legal opinion,Advice,Attorney general
Union law and justice minister Ravi Shankar Prasad speaks in the Rajya Sabha in New Delhi.(PTI FILE Photo/TV Grab)

The law ministry has written to all ministries and departments telling them not to approach the attorney general and other law officers directly, reiterating the supremacy of the legal affairs department in dealing with legal opinion and advice, a ministry official said.

The communication from the ministry comes in the wake of ministries and departments writing to the AG, KK Venugopal, directly for legal advice.

“Under the allocation of business rules, giving legal advice to the government is the exclusive domain of the department. The rules apply to all ministries and departments,” a law ministry official said on condition of anonymity.

The Government of India (Allocation of Business) Rules 1961 define advice to ministries on legal matters, including the interpretation of the Constitution and the laws, as the job of the legal affairs department.

Citing the Law Officers (Condition of Services) Rules, the legal affairs department has said all requests and the opinion provided would be invalid unless routed through it. AG Venugopal concurred with the view, saying he can’t be “flooded with requests from everyone”.

“The ministry has a mechanism for vetting requests and they have in-house experts. Everyone from under-secretary upwards in different ministries can’t be seeking legal opinion on their own,” he said.

Last year in February, the then-attorney general, Mukul Rohatgi, had flagged the issue, saying not only is the rule archaic and causes delays, it also stands in contradiction with the role of the AG.

Asked for a comment on the law ministry’s view, Rohatgi said: “This is a completely bureaucratic response that I don’t agree with.”

He said the Constitution lays down that the AG should be available to the government “and not just the law ministry”.

Rohatgi argued that in case of urgent matters arising out of ongoing litigation, routing the request through the law ministry leads to delays that can affect the concerned ministry adversely.

“If there is an urgent matter, the discretion should be with the ministry or the government department seeking advice. If the AG decides, the matter can be delegated to another officer in the team… Under normal course, such requests should come through the law ministry,” he said.

Article 76 of the Constitution regarding the appointment of the attorney general says: “The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court.”

“It shall be the duty of the Attorney General to give advice to the Government of India upon 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 to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force,” it adds.

First Published: Apr 22, 2018 12:09 IST