Petition In SC Challenges Appointment Process Of Public Prosecutors In Kerala [Read Petition]

A Writ Petition has been filed in the Supreme Court of India to strengthen the prosecution machinery across the country, especially in the State of Kerala in pursuance of the provisions in Section 24(6), 24(9) and 25A of the Code of Criminal Procedure, 1973.

Section 25A of the Code of Criminal Procedure states as follows:

1. 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.

2. A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.

3. The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.

4. Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.

5. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-Section (1), or as the case may be, Sub-Section (8), of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.

6. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under the Sub-Section (3), or as the case may be, Sub-Section (8), of Section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under Sub-Section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution.

7. The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.

8. The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

The Petition seeks to declare Rules 4, 8, 14, 15, 53 and 69 of Kerala Government Law Officers Appointment and Conditions of Service and Conduct of Cases Rules, 1978 (hereinafter, "1978 Rules") as unconstitutional on the contention that they are repugnant to the letter and spirit of Section 25A of CrPC and thus, are violative of Article 254 of the Constitution of India.

The petition filed by Rameez Jabbar, Dileepkumar M.P. and Suresh Chandran R - three Assistant Public Prosecutors - states that the class of PPs/APPs in the State of Kerala do not have a proper hierarchical order and are not under any administrative control. So they end up forming a separate class without any reasonable nexus between the other classes in order to achieve the objective stipulated under Section 25A of the CrPC.

197th Law Commission was tasked with coming up with solutions to this effect, however, a few states, including Kerala, are yet to implement the solutions. While almost all States favoured the opinion of the Law Commission and established a regular cadre of prosecuting officers from which alone the appointment to the posts of PP/APP for the district is made, the State of Kerala was against the same as it would entail the curtailment of the appointing power of the State Government.

The Petition filed through Advocate M S Suvidutt states that "the independence of the prosecution officers is essential for the criminal justice system to function at its best for the reasons mentioned above and that independence can emanate only from a free and fair selection process. A hierarchical system provides strong advantages for organizational control and management and is better able to deliver a much sought-after consistency of approach within a prosecution service."

It also goes on to state that steps should be taken to prevent political considerations from being a factor in the appointment of career prosecutors. The Directorate of Prosecution in Kerala, established in the year 2000 does not have any control over the persons under the 1978 Rules as they are under the administrative control of the Law Secretary in Kerala. This entails a reasonable apprehension of politicization of the prosecution service and therefore, there is an urgent need to provide transparency in the appointment process.

"Clear criteria for appointment to office should be established. Vacancies should be advertised and suitable candidates invited to apply. There should be input into the selection process from suitably qualified person with suitable expertise and of high reputation. It is important that the method of selection of the prosecuting officers should such as to gain the confidence of the public and the respect of the judiciary and the legal profession. Therefore, professional non-political expertise should be involved in the selection process."

"... 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 main grievance in the Petition is with regard to the recommendation procedure which has been adopted by the State of Kerala in the appointment of PPs and APPs. This provides a space for political influence over the considerations of such posts. In the case of Vineet Narrain v. Union of India (1998), the bureaucrat-politician-criminal nexus was explored, and the relationship of the Prosecutors with the Executive was condemned.

The Petition also seeks for the appropriate training of the Prosecuting Officers. "The States shall ensure that prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law. Prosecutors have great responsibility, and much is expected of them by society."

The Prayers sought in the Writ Petition are as follows:

1. To issue a Writ of Mandamus or any other suitable writ directing the State of Kerala to include the posts of Deputy Director of Prosecution, Public Prosecutors (PP) and Additional Public Prosecutors (Addl.PP) in the preexisting cadre of prosecuting officers to effectuate the legislative intent of Section 25A read with Section 24 CrPC, 1973 and to modify 2018 Special Rules accordingly;

2. To issue an appropriate Writ declaring Section 24 (4), 24 (5) and the Proviso of Section 24 (6) of Cr PC as arbitrary and redundant in the context of State of Kerala;

3. To issue an appropriate Writ declaring Rules 4, 8, 14, 15, 53 and 69 of Kerala Government Law Officers Appointment and Conditions of Service and Conduct of Cases Rules, 1978 as unconstitutional as they are repugnant under Article 254 of the Constitution to the letter and spirit of Section 25A of CrPC;

4. To pass an order setting up a National Commission headed by a retired Judge of the Hon'ble Supreme Court 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;

5. To pass an order to establish National and Regional/ State level Prosecution Academy for training of the prosecuting officers so as to improve the quality of work of prosecution officers in the country with a Director from the regular cadre;

6. To pass such other Order (s) in favor of the Petitioners herein, as this Hon'ble Court may deem fit and proper in the interest of Justice.

Click here to download petition

 Read Petition