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The Supreme Court has been moved to issue directions for revamping the process of appointing Public Prosecutors (PPs) and Additional Public Prosecutors (APPs) in Kerala. Notably, the plea has registered objection to political interference when it comes to the appointment of these law officers.
“Public Prosecutors/ Additional Public Prosecutors hold their posts at the pleasure of the executive and political influencers that appoint them [and] are susceptible to manipulation and corruption,” the petitioners have highlighted.
In this regard, the petition moved by three Grade II Assistant Public Prosecutors from Kerala has challenged the constitutional validity of Rules 4, 8, 14, 15, 53 and 69 of the Kerala Government Law Officers Appointment and Conditions of Service and Conduct of Cases Rules, 1978 (1978 Rules).
The petitioners have argued that these provisions run counter to the scheme of appointment under Section 25A of the Code of Criminal Procedure (CrPC) and are violative of Articles 254 and 309 of the Constitution.
Further, the petitioners have also called for the Court to declare provisions of Section 24, CrPC as arbitrary and redundant in the State of Kerala. Section 24 deals with the appointment of PPs and APPs. This provision lays down that the Central or State Government shall appoint such law officers to handle Government cases, following consultation with the High Court. It states,
“For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be…”
The petition has been filed by Rameez Jabbar, Dileepkumar MP and Suresh Chandran R through Advocate Suvidutt MS.
Appointment of Public Prosecutors, Additional Public Prosecutors must be immune from political interference
As noted in the petition, PPs and APPs are not under the administrative control of the State’s Director General of Prosecution (as established in 2000). Rather, they are appointed on the recommendation of the State Government (as per Section 24, CrPC) under the 1978 Rules. However, the issue raised by the petitioners is that such appointments are driven by political considerations, rather than merit or promotion.
“… the current practice adopted by the State of Kerala in appointment of Public Prosecutors and Additional Public Prosecutors is based on recommendation procedure which in turn is easily influenced by political considerations”, states the petition.
The petitioners go on to argue that such likely executive interference would, in turn, affect their independence when it comes to the conduct of criminal cases and the quality of criminal justice.
“It is essential that prosecutors have sufficient independence and autonomy to take their decisions regardless of any outside pressure, in particular from the executive power of the State. When such pressures are exerted, the prosecutor will not be able to protect the interests of justice, he will not be able to respect the rule of law or human rights, and will be powerless to deal effectively with cases of corruption or abuse of State power…
… The more serious consequence of this practice or system of appointment of the Public Prosecutors and Additional Public Prosecutors for the district is that, the appointees being holders of tenure posts on extraneous considerations and the criminal justice system of the state suffers substantially in the absence of continuity and cohesion in the service which is made possible because of the lack of effective supervision, regulation, control and discipline owing to the reason stated above.”
It is also noted that,
“Frustrated by the existing condition of the prosecution system with reference to the arbitrarily made appointments of Public Prosecutors and Additional Public Prosecutors, the 197th Law Commission was tasked with coming up with solutions to this effect … the solution … has been accepted and implemented by several states but not by few states including Kerala.“
Whereas the Kerala government issued certain Special Rules in 2018 concerning the promotion of law officers to various prosecutor posts, the petition has raised the objection that the posts of PPs and APPs were exempt from its application. As per the petitioners, the same amounts to malice in law.
“… when government action runs counter to good faith, not supported by reasons and law, it is described as mala fide. In the instant case, the Special Rules of 2018 passed by the government of Kerala is mala fide as it deliberately excluded Public Prosecutors and Additional Public Prosecutors from the posts which are to be filled by promotions from APPs as per Section 25A of Cr PC.”
Arbitrary classification between Public Prosecutors and other Prosecuting officers
Public Prosecutors and Additional Public Prosecutors in Kerala fall under the administrative control of Law Secretary of the State of Kerala. This also means that they are not subject to any of the rules of classification, control and appeal, unlike Assistant Public Prosecutors (of various grades), Deputy Director of Prosecution and Director of Prosecution (Administration).
“These Public Prosecutors and Additional Public Prosecutors form a separate class without any reasonable nexus between the other classes in order to achieve the objective”, the petition notes. It goes on to stated, “The Public Prosecutors and Addl. Public Prosecutors in the Sessions Court to the High Court, are appointed as per Kerala Government Law Officers Appointment Rules, 1978 by the Law Department of the Kerala government which is against the intention of Section 25A of CrPC.”
Section 25A, CrPC was inserted by the Central Government in 2006. It provides that the State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. However, the petitioners point out,
“In the State of Kerala, a proper hierarchical order of prosecuting officers still hasn’t been created despite the enactment of Sections 24 and 25A Cr PC to give effect to the legislative mandate contained in the said provisions. In its place there is a regular cadre of Prosecutors starting with APP Grade – II and ending with the Director of Prosecution. Although, in the said chain of command between the posts of Director of Prosecution (Administration) and the post of Deputy Director of Prosecution and the Senior APP Grade, there is an intermediary category of Public Prosecutors (PP) and Additional Public Prosecutors (Addl. PP) as mentioned in sub-section (3) of Section 24 Cr PC.”
It has been argued that Section 25A, CrPC, read with other relevant laws, calls for the creation of a permanent cadre of prosecution officers, with Assistant Public Prosecutors being eligible for promotion as Public Prosecutors and Additional Public Prosecutors, as opposed to the current system of government recommended appointments.
“The Legislature also intended for the State Governments to create a regular cadre of prosecuting officers as per Section 24 (6) read with explanations (a) and (b) thereunder. A combined reading of the sub-sections (6), (7) and (9) of Section 24 and Section 25A of the Cr PC and the said Special Rules, will make it clear that the Special Rule is virtually unworkable unless a regular cadre of Prosecuting Officers inclusive of Public Prosecutors/ Additional Public Prosecutors is created. Now Kerala is then amongst the very few states that has not incorporated suitable provisions for creating a permanent cadre of Prosecution officers by making the posts of Public Prosecutors and Additional Public Prosecutors as the promotion categories of the posts of APP’s, in satisfaction of the legislative mandate of Section 24(6) and the provision for creating a Directorate of Prosecution as envisaged in Section 25A of the CrPC. “
Absence of promotion affects morale of Assistant Public Prosecutors
It is also pointed out that making the appointment of Public Prosecutors and Additional Prosecutors on promotion, and on the basis of objective, merit-driven factors, rather than on political considerations, would further incentivise Assistant Public Prosecutors as well.
Under the present system, Assistant Public Prosecutors are only allocated work before courts upto the level of Chief Judicial Magistrate, whereas Additional Public Prosecutors and Public Prosecutors appointed on Government recommendation are allowed to practice before criminal courts higher up in the hierarchy.
“… the Assistant Public Prosecutors can conduct criminal prosecution only up to the Chief Judicial Magistrate’s Court level and cannot conduct cases in the Sessions Court. Whereas, the Public Prosecutors and the Additional Public Prosecutors appointed by the State Government in terms of Section 24(3) of the Cr PC, represent the State in the Sessions Court.
As a consequence to this, the APP’s who are practicing at the CJM Court level almost always throughout their lives and are subject to permanent stagnation of their professional growth which results in the loss or morale, drive and motivation in the officers of the said cadre which in turn affects their efficiency to excel in their professional lives.“
The petition also registers objection of Assistant Public Prosecutors being deprived of service benefits by the State.
“… the service conditions under which the prosecuting officers of the APP Grade perform their enormous duties are appalling in nature due to lack of transportation, basic necessities like washrooms, security which in turn endangers their lives and does not meet basic workplace requirements.“
In view of these concerns, the petitioners have also prayed that the Supreme Court order the constitution of a National Commission headed by a retired Supreme Court Judge to look into the functioning, pay and service conditions of Prosecuting Officers and other aspects of the Directorate of Prosecutions across the country and recommend curative measures.
Need for Prosecution Academy to train Prosecutors
The petitioners have also called for the Supreme Court to issue directions to set up a Prosecution Academy at the National and Regional/State level “for the training of the prosecuting officers so as to improve the quality of work of prosecuting officers in the country with a Director from the regular cadre.”
Regarding this aspect, the petitioners have also made pertinent observations regarding the need for training right from the induction of the law officer, which should continue through the prosecutor’s career, enabling the prosecutor to take on more complex cases and allowing for career advancement. It has been argued,
“Training of this type should also be viewed as an investment by the prosecution service, and appropriate funds should be allocated to provide training to staff. Advanced training could be provided to prosecutors in subjects such as transnational crime, organized crime, cybercrime, money-laundering, international cooperation in criminal matters, forensic evidence such as DNA analysis and dealing with vulnerable victims and witnesses.”
Inter alia, it is noted that the Malimath Committee had also called for the intensive training of prosecutors, in both theory and practice to improve their professional skills. The Committee’s report had further added that those prosecutors who are in service “should be given periodical in-service training to update their knowledge.”
While this is the case, the petition also notes that while Assistant Public Prosecutors are made to undergo comprehensive training, no such training is imparted to PPs or APPs appointed on Government recommendation.
“.. the prosecuting officers appointed in terms of Section 25 Cr PC are made to undergo a comprehensive training period along with periodical training on regular intervals to keep with the advancements in the specific fields of law. Whereas on the other hand, no such training or periodical training is imparted to the appointed prosecutors under Section 24. Hence, strengthening the argument that the APP’s inducted after a competitive exam and with specialized training are better equipped to deal with the case load of the existing prosecutors appointed under section 24 of Cr PC. “
In view of the above concerned, the petitioners have made the following prayers before the Supreme Court.