A recurring concern in contemporary assessments of parliament is the perceived decline in the quality of legislative debate. While parliamentary discussion has always largely been political, recent sessions reveal a diminishing space for sustained, technical and legally informed scrutiny of legislation. Debates frequently proceed along predictable partisan lines, with limited engagement with the substantive design, constitutional implications, or consequences of bills.
This trend is reinforced by the speed with which legislation is increasingly introduced and passed. According to a study by PRS Legislative Research, in recent sessions, several bills were passed without discussion. Even where debate does occur, the time available for scrutiny is often inadequate.
For instance, the Income Tax (No 2) Bill - which replaced the existing statutory framework and contained over five hundred sections - was passed in the Lok Sabha within minutes and in the Rajya Sabha in slightly over an hour. Such timelines constrain the possibility of meaningful engagement with complex legal architecture.
To be clear, limited debate is not always attributable to a single cause. Disruptions, scheduling pressures and political strategy all play a role. Yet, the more structural concern lies elsewhere: even when bills are taken up for discussion, the opportunity for rigorous examination - of drafting choices, constitutional compatibility and downstream consequences -remains limited.
These deficits also carry institutional consequences. Where debate remains partisan and inadequate, the legal content of legislation often remains opaque - both to parliament and to the public. Citizens are left unaware of the operative details and consequences of the law, while legislators at times lack the opportunity to interrogate technical and constitutional dimensions that fall outside the register of political contestation.
In such circumstances, the Constitution itself provides a modest but under-utilised mechanism to supplement parliamentary debate with legal clarity: Article 88, which permits the Attorney General of India to participate in the proceedings of either House.
According to Article 76, the Attorney General is the highest law officer of the Union, appointed to advise the government on legal matters and to perform functions conferred by the Constitution or any other law. The Constitution also confers upon the Attorney General a right of audience in all courts in India and, significantly, Article 88 confers the right to speak in and take part in the proceedings of either House, without a right to vote.
The Constituent Assembly did not debate the position of the Attorney General in great detail. This was likely because the office was both an extension of the Advocate General’s position under the Government of India Act, 1935 and a familiar feature of the Westminster system. The relative silence in the debates also suggests that the participatory role of the Attorney General was arguably regarded as an uncontroversial element of parliamentary design rather than a site of constitutional contestation. For this reason, comparative reference to Westminster practice offers useful insight into the nature and expectations of the office.
In the United Kingdom, the Attorney General is a Minister of the Crown and a senior lawyer, tasked with advising the government, supervising prosecutorial authorities and acting as a guardian of public interests. The Attorney General is also expected to address parliament when legal questions arise, while operating within conventions that limit disclosure of privileged advice.
As former Attorney General Victoria Prentis noted, the role requires upholding the rule of law within government, often by resisting politically attractive but legally untenable proposals. The demanding nature of the office is reflected in historical remarks. Sir Patrick Hastings described it as his “idea of hell,” while Francis Bacon called it “the painfullest task in the realm.” These observations highlight a consistent expectation: that the Attorney General’s primary responsibility is towards legality rather than political convenience.
India’s constitutional design differs from that of the United Kingdom in important respects. Notably, the Attorney General is not a political minister and does not supervise prosecutorial agencies. Interestingly, during the tenure of Law Minister Ashok Sen, there were efforts to combine the law ministership with the office of the Attorney General, with a view to approximating the British model. However, the proposal was ultimately abandoned following significant opposition. I have examined this episode in greater detail here.
Similar to the practice in the UK, Article 88 recognises the Attorney General’s right to address parliament when called upon. The provision creates a carefully calibrated role for the Attorney General that requires him to provide a technical and informed direction to legislative debate. In doing so, Article 88 offers a constitutional response to the contemporary deficit of technical and legally informed debate.
Despite its potential, Article 88 has been invoked sparingly. One early and instructive example arises from the tenure of MC Setalvad, India’s first Attorney General. On February 25, 1950, within weeks of assuming office, Setalvad was called upon by Sardar Patel to address parliament on the Preventive Detention Bill. His intervention was not political advocacy, but legal explanation - clarifying constitutional limits, statutory design and the government’s legal position.
Importantly, Setalvad also responded to questions and clarifications raised by members, assisting them in understanding the nuances of the proposed law and addressing concerns without recourse to partisan rhetoric. The episode illustrates the function Article 88 was designed to serve: enabling informed deliberation by supplementing political debate with legal exposition.
Independently, Setalvad’s conduct as Attorney General also helped articulate the institutional ethic that ought to govern the office. Two episodes are particularly instructive. First, when offered the position of Law Minister - which would have required him to contest elections - Setalvad declined, thereby preserving the non-political character of his office. Second, in the aftermath of the Nanavati case, where the Bombay High Court overturned a jury’s verdict of acquittal and the Governor stayed the conviction under Article 161 on political grounds, Setalvad refused to defend the decision, stating that it would be embarrassing for him to do so. In both instances, his conduct reflected fidelity to law and institutional role - rather than political convenience - capturing precisely the spirit expected of the Attorney General under the constitutional scheme.
Parliament today frequently considers complex legislation that is legally dense, unsettles long-established jurisprudence and carries significant nationwide implications, thereby requiring detailed scrutiny to avoid unintended consequences. Yet, in such contexts, debate often gravitates towards political signaling rather than technical examination.
Article 88 offers a mechanism to reintroduce legal clarity into legislative deliberation. The Attorney General’s intervention - limited, structured and non-partisan - can assist in clarifying questions of legislative competence, constitutional compatibility, statutory coherence, and other technical dimensions of proposed legislation. This does not displace political debate; it supplements it with legal context. Importantly, such participation need not be routine or indiscriminate. It can be confined to situations where legislation raises serious constitutional questions, involves significant technical complexity, or proposes a substantial departure from existing legal frameworks. Equally, this route must not be employed to legitimise rushed law-making.
Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.
Views are personal.