Government advocates in kerala : appointment and Politicization

I. Introduction:

A Deepening Crisis in Criminal Justice:

Government advocates in Kerala, a disturbing paradox has emerged in the appointment of public prosecutors: while Assistant Public Prosecutors (APPs) in Magistrate Courts are recruited purely on merit through a rigorous process of written examinations and interviews, Public Prosecutors (PPs) and Additional Public Prosecutors (Addl. PPs) in the District and Sessions Courts where grave criminal trials take place are often appointed through political patronage without any formal selection procedure. This politicisation has not only undermined the quality of prosecution but has also led to an alarming increase in miscarriages of justice.

Keywords:

• public prosecutor
• APO
• PP
• kerala public prosecutor
• kerala government lawyers

II. Legal Framework:

BNSS and the Role of Prosecutors :

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure (CrPC), continues to uphold the basic framework for the appointment and functioning of public prosecutors.

Section 20 of BNSS [Corresponding to Section 24 of CrPC]:

This provision governs the appointment of Public Prosecutors and Additional Public Prosecutors in the High Courts and District Courts.

Key points:

• The State Government appoints the Public Prosecutor for each Sessions Court.
• The District Magistrate (District Collector), in consultation with the Sessions Judge, prepares a panel of names.
• No person can be appointed unless their name appears in this panel.
• The person must have at least seven years of practice as an advocate.

While this section appears to provide a system of checks and balances, in reality, the process is often subverted by political interference. The panel is frequently based on the list submitted by ruling political parties, rendering judicial consultation meaningless.

Section 21 of BNSS [Corresponding to Section 25 of CrPC] governs the appointment of Assistant Public Prosecutors (APPs) in Magistrate Courts.

Unlike the PPs in sessions courts, the APPs in Magistrate Courts are appointed through a competitive selection process, usually by the Public Service Commission (PSC), based on merit, ensuring objectivity and competence.

III. Kerala High Court's Repeated Concerns :

The Kerala High Court has, on multiple occasions, expressed grave concern about political interference in the appointment of PPs.

1. P. Vijayan v. State of Kerala (2007 KHC 2250)

The High Court observed:

“The appointment of Public Prosecutors based on political affiliations defeats the very foundation of fair trial guaranteed under Article 21 of the Constitution. Sessions Courts deal with serious criminal matters. The prosecutor must be appointed not for loyalty to party but loyalty to law.”

2. Adv. V. Suresh v. State of Kerala (2021 KHC 4832)

Held that:- The court quashed the appointment of a politically favored public prosecutor due to lack of merit

“The consultation by the Sessions Judge must be real and effective. The judge must independently assess the capability and character of the candidate. The judiciary cannot be a silent spectator in the process.”

3. Sreekumar v. State of Kerala (2019 KHC 3069)

The court observed:

“There is an alarming trend of using prosecutorial posts as political rewards. Such appointments compromise not just the efficiency of prosecution but shake the faith of the public in the justice system.”

IV. Supreme Court on the Integrity of Public Prosecutors

State of U.P. v. Johri Mal (AIR 2004 SC 3800)

The Supreme Court held:- “The office of Public Prosecutor is a public office. Appointment must be free from political considerations. It must be made on objective assessment of merit and competence.”

Sheo Nandan Paswan v. State of Bihar (1987 AIR 877)

Reiterated that:- “The Public Prosecutor is not a representative of the government or the complainant, but a minister of justice.”

These rulings emphasize that public prosecutors are officers of the court, not agents of the ruling party.

V. The Irony:

Merit in Magistrate Courts, Politics in Sessions Courts :- While the District and Sessions Courts handle serious crimes such as murder, rape, and terrorism, the prosecutors in these courts are appointed with no structured exam or interview, often solely through party recommendations. In contrast, Magistrate Courts, which deal with minor offences, follow a structured and meritocratic recruitment process for APPs, ensuring competence and impartiality.

This irony is dangerous. It leads to:-

• Incompetent conduct of trials in grave criminal matters.
• Poor quality of investigation supervision.
• Low conviction rates in heinous offences.
• Public distrust in the system.

VI. Recommendations for Reform :

1. Transparent Selection Procedure for PPs.
2. Like APPs, selection of PPs must involve a merit-based exam and interview through an independent commission.
3. Real and Effective Judicial Consultation.
4. Sessions Judges must be given more weight in the selection process.
5. Their assessments must be binding, not ceremonial.
6. Code of Ethics for Prosecutors.
7. Enforce a statutory code of ethics to prevent partisan behavior and maintain professional integrity.
8. Judicial Oversight Mechanism.
9. High Courts must create committees to vet appointments and monitor performance of prosecutors.
10. Legal Challenge to Politicised Appointments
11. Encourage public interest litigation (PIL) or bar association actions when blatant political appointments are made.

VII. Conclusion: Reclaiming Justice from Political Clutches

The credibility of a criminal justice system rests significantly on the independence and efficiency of its prosecutors. In Kerala, while the appointment of Assistant Public Prosecutors is a model of fairness, the appointment of Public Prosecutors in higher criminal courts is increasingly becoming a political racket. This dichotomy not only demoralizes competent lawyers but also endangers justice itself.

Reform is not optional. It is urgent, if the dignity of courts and the constitutional promise of fair trial under Article 21 are to be preserved.