District Judge's opinion must be given primacy for appointment of public prosecutors: Kerala High Court

The Kerala High Court recently directed the State government to frame guidelines and establish a protocol to ensure the vacancies of public prosecutors are filled immediately [Suo motu writ petition initiated by the High Court v State of Kerala & Ors]..Pertinently, the Division bench of Chief Justice Nitin Jamdar and Justice Ziyad Rahman AA said that the internal administrative guidelines must be in strict conformity with Section 18 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) which gives primacy to the opinion of the District Judge in the consultative process for appointment of public prosecutors. “The State Government will frame internal administrative guidelines in strict conformity with Sections 18(3) of the Bharatiya Nagarik Suraksha Sanhita and the law laid down by the Hon’ble Supreme Court enumerated above. Such guidelines will contain the stipulations and methodology to ensure that the opinion of the District Judge is given primacy. Any guideline issued by the State Government that contravenes this requirement or dilutes the primacy of the District Judge's opinion will be contrary to the law laid down by the Hon'ble Supreme Court in the aforesaid decisions,” the Court said. .The Bench ruled that the State's government reliance on Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 (1978 Rules) to appoint public prosecutors is erroneous since those rules apply to the appointment of people holding public office. Public prosecutors do not hold public office and the 1978 rules do not apply to their appointment, the Court held. It further noted that the quality of criminal prosecution in Kerala was seriously compromised due to incompetent appointments of advocates and the failure to appoint good prosecutors reflected on the State's inability to perform it's duty."The delay in filling up the vacancies of Public Prosecutors in the State, and the failure to create the posts of Prosecutors in the criminal courts in time, directly affect the justice delivery system in the State. The State Government is under a duty to take measures to ensure the vacancies are filled in time," the Court added..The bench made these observations in suo motu proceedings initiated by the Court in 2021 after it observed systemic lapses in prosecution due to incompetent appointments and prolonged vacancies.The Court expressed its concern over the continued reliance on the outdated 1978 Rules, which required District Collectors to prepare a panel of eligible advocates based on consultations with District Judges.It even noted that despite Supreme Court precedents highlighting the important role of public prosecutors in upholding the rule of law, Kerala's ad hoc appointment process under 1978 Rules lacked statutory backing and often sidelined judicial input.A stakeholders’ meeting was ordered to address these concerns by the Court. The meeting involved the Registrar General of the High Court, Additional Chief Secretary (Home), senior officials from the Prosecution and Law Departments and the Amicus Curiae.The deliberations highlighted the urgent need to revamp the process and acknowledged that the existing rules may not be legally applicable to public prosecutors appointed under Section 24(3) of the Code of Criminal Procedure (CrPC)..Finally, the government made a statement before the Bench that the prosecutors’ vacancies will be filled expeditiously. The Court accepted the statement and closed the proceedings. However, it warned that if the government guidelines are contrary to law or if there is any delay, the case would be revived.“If the internal guidelines issued by the State as above are found to be contrary to the above-mentioned mandate or the delay in appointing the Public Prosecutor persists, the Court will consider reviving this suo motu Writ Petition,” the Bench said. .The State government was represented by Additional Director General of Prosecution Grashious Kuriakose.The High Court administration was represented by Senior counsel BG Harindranath.Senior Counsel P Deepak appeared as Amicus Curiae..[Read Judgment]