The Supreme Court laid down norms for state governments to select public prosecutors and government advocates and limited the earlier discretion they had to accommodate lawyer supporters of the ruling party.
in choosing government lawyers, the state must look for competence and not appoint anyone with a criminal background.
Though appointment of PPs and several layers of government advocates for district courts in Uttar Pradesh was in question, the judgment of Justices Vikramjit Sen and A M Sapre will have a salutary effect on other states too.
The bench said, “It is beyond cavil that it is in the interest of the dispensation of criminal justice that competent counsel possessing integrity should alone be appointed, since otherwise, there is a strong miscarriage of justice. In choosing them, the state will not only have to be satisfied of their forensic competence, but also that they are bereft of any criminal antecedents.”
It clarified that strict selection process to be appointed by states in choosing government lawyers did not mean there would be any security of tenure for them.
Justice Sen said, “The state, like any other litigant, must have the freedom to appoint counsel in whom it reposes trust and confidence. The only expectation is that the choice made by the state should not be such as could defeat the sacred and onerous responsibility of ensuring that justice is meted out to all citizens.”
Referring to an earlier judgment in Johri Mal case, the bench said the SC had categorically rejected the claim of a lawyer for continuous renewal of appointment as a government advocate. “We entirely agree with this exposition of law, ” the bench said.
The bench agreed with the apex court’s Johri Mal judgment, in which it had said district counsel did not have a statutory right for renewal of tenure and the state government enjoyed discretionary power in this regard.
State of Uttar Pradesh v. Johri Mal 2004
1. A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on the one hand, and Assistant Public Prosecutor, on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the State. They hold Civil posts.
They are answerable for their conduct to higher statutory authority.
Their appointment is governed by the service rules framed by the respective State Government.
2. The appointment of the Public Prosecutors, on the other hand, is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment.
Proviso appended to Article 309 of the Constitution of India is not applicable in their case.
Their appointment is a tenure appointment. Public Prosecutors, furthermore retain the character of legal practitioners for all intent and purport.
They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
Article 309 of Constitution “Recruitment and conditions of service of persons serving the Union or a State”.