Appointment of District Government Counsel in India: Constitutional and Statutory Dimensions

Appointment of District Government Counsel in India: Constitutional and Statutory Dimensions

1. Introduction

The State is the single largest litigant in India. Its effective representation before courts depends upon the quality, integrity and independence of its law officers. Within the district judiciary, that responsibility is shouldered by the District Government Counsel (“DGC”). Although the engagement is often described as a “professional” one, five decades of case-law demonstrate that the appointment, renewal and removal of DGCs is suffused with a public element that attracts constitutional scrutiny, especially under Article 14 of the Constitution.

This article critically analyses the legal architecture governing the appointment of DGCs, traces the jurisprudential evolution from Mundrika Prasad Singh to Ajay Kumar Sharma, and distils the principles that presently guide, and constrain, executive discretion.

2. Statutory and Regulatory Framework

2.1 Section 24 of the Code of Criminal Procedure, 1973

Section 24 CrPC creates the offices of Public Prosecutor and Additional Public Prosecutor and prescribes a consultation-based process for their selection at both the High Court and district levels.[1] Sub-sections (4)–(6) require the District Magistrate to prepare a panel of names “in consultation with” the District & Sessions Judge. While Uttar Pradesh has deleted the High Court consultation requirement for High Court PP appointments, the district-level consultation mandate remains untouched.

2.2 The Legal Remembrancer’s Manual

The U.P. Legal Remembrancer’s Manual (“LR Manual”) Chapter VII regulates appointment, tenure, renewal and removal of DGCs (Civil, Criminal, Revenue, etc.).[2] Key provisions include:

  • Para 7.03: public notification of vacancy, application scrutiny by the District Officer in consultation with the District Judge, and submission of names in order of preference;
  • Para 7.06(3): declaration that the engagement “is only a professional engagement terminable at will”;
  • Para 7.08: renewal procedure three months prior to expiry, again mandating consultation and evaluation of work, conduct and age.

Comparable manuals or executive instructions exist in other States, but the U.P. Manual has generated the bulk of litigation, shaping national jurisprudence.

3. Jurisprudential Evolution

3.1 Early Recognition of Public Character

In Mundrika Prasad Singh v. State of Bihar (1979) the Supreme Court held that Government Pleaders hold a public office and therefore their selection must satisfy constitutional standards of fairness.[3] This laid the foundation for subjecting executive discretion to judicial review.

3.2 Non-Arbitrariness and Article 14: Kumari Shrilekha Vidyarthi

The watershed came with Kumari Shrilekha Vidyarthi v. State of U.P. (1991) where a State circular terminating all DGCs en masse was quashed as arbitrary.[4] The Court rejected the State’s argument that DGCs were in a purely contractual relationship, holding:

“Public element attaches to the office… This is sufficient to attract Article 14.”[4]

Shrilekha established three propositions: (i) even contractual engagements of the State are subject to the constitutional discipline of non-arbitrariness; (ii) reasons, though not necessarily disclosed, must exist; and (iii) wholesale terminations triggered solely by a change of government are impermissible.

3.3 Procedural Fidelity: Harpal Singh Chauhan and Ramesh Chandra Sharma

Post-Shrilekha, the Court shifted focus from substantive to procedural review. In Harpal Singh Chauhan v. State of U.P. (1993) the Court invalidated appointments because no panel was prepared “in consultation” with the District Judge as required by s. 24(4) CrPC and Para 7.06(2) LR Manual.[5] Likewise, Ramesh Chandra Sharma (1995) reaffirmed that renewal is not automatic but the decision-making process must be rational and duly supported by record.[6]

3.4 Demarcating Judicial Review: State of U.P. v. Johri Mal

In Johri Mal (2004) the Supreme Court struck a careful balance. It reiterated that the State must “act fairly and reasonably” and ordinarily follow the LR Manual.[7] However, it disapproved the High Court’s attempt to create a collegium system for appointments, holding that courts cannot transplant processes not envisaged by statute. Thus, while expanding the grounds of review to include “malice in law”,[7] the Court circumscribed institutional overreach.

3.5 Continuing Debates: Ajay Kumar Sharma Line of Cases

Litigation resurged after a 2008 amendment removed District Judge consultation for fresh appointments. In Ajay Kumar Sharma (2014 HC; 2015 & 2017 SC decisions) the Supreme Court set aside mass terminations and emphasised that any modification of the LR Manual must still pass the test of Article 14 and s. 24 CrPC.[8] The Court, however, refrained from prescribing a uniform national procedure, leaving States with room to frame transparent rules.

4. Governing Principles Emanating from the Case-Law

  • Public Trust Doctrine: Appointment of DGCs involves a public element; the State acts as trustee of prosecutorial power and must prioritise public interest over partisan considerations.
  • Mandatory Consultation: Effective, meaningful consultation with the District Judge (and, where applicable, District Magistrate) is a statutory pre-condition; mechanical forwarding of names is insufficient (Badri Vishal Gupta).[9]
  • Merit-based Selection: Comparative assessment of competence, integrity, experience and professional income is mandated by Para 7.03 LR Manual and reiterated in U.P. State Law Officers Assn. (1994).[10]
  • Limited Judicial Review: Courts examine process—illegality, irrationality, procedural impropriety or mala fides—not the substantive choice of counsel (Johri Mal; Harpal Singh Chauhan).[5][7]
  • No Vested Right to Renewal: DGCs cannot claim renewal as of right, but denial must be founded on objective material and recorded reasons (Ramesh Chandra Sharma).[6]
  • Prohibition of En Masse Political Cleansing: Wholesale termination upon change of government violates Article 14 (Shrilekha).[4]

5. Contemporary Challenges

  • Executive Discretion v. Constitutional Discipline: Frequent amendments to manuals (e.g., 2008 U.P. G.O.) reflect attempts to tilt the balance towards unfettered discretion, inviting litigation and uncertainty.
  • Quality of Representation: The Supreme Court in Santosh Kumar Pandey (2019) warned that poor assistance by State counsel undermines judicial outcomes and erodes public faith.[11]
  • Lack of Uniform National Standards: Variations across States create uneven prosecutorial quality and invite forum shopping.
  • Tension over Collegium-style Models: While a judicially imposed collegium was rejected in Johri Mal, the absence of an independent screening body perpetuates allegations of political patronage.

6. Recommendations

  1. Codify Transparent Criteria: Parliament or State Legislatures should statutorily incorporate objective metrics—trial experience, past success rate, professional conduct—thereby reducing ad-hoc executive orders.
  2. Independent District Selection Committees: Without adopting a full collegium, a committee comprising the District Judge (chair), District Magistrate, and a senior bar representative could conduct interviews and prepare a reasoned panel, aligning with s. 24 CrPC.
  3. Digital Publication of Vacancies and Reasons: All vacancies, short-lists and final orders (with sanitized reasons) should be uploaded on official portals to ensure transparency and facilitate judicial review.
  4. Periodic Performance Audit: Annual confidential reports, jointly prepared by presiding judges and district administration, should guide renewal decisions, thereby linking tenure to merit rather than politics.
  5. Capacity-Building: Continuous training in ethics and emerging areas of law will enhance the quality of assistance rendered to courts, fulfilling the constitutional promise of fair trials.

7. Conclusion

The trajectory from Mundrika Prasad Singh to Ajay Kumar Sharma underscores a consistent judicial endeavour to align executive discretion with constitutional values of fairness, transparency and public-interest-orientation. While the Supreme Court has consciously refrained from micromanaging the appointment process, it has laid down robust guardrails: meaningful consultation, merit-based selection, and reasoned decision-making. The task now lies with legislatures and executives to institutionalise these principles through clear, uniform procedures, thereby ensuring that the State, as a litigant, is represented by counsel whose competence matches the gravity of public interest at stake.

Footnotes

  1. Code of Criminal Procedure, 1973, s. 24.
  2. U.P. Legal Remembrancer’s Manual, Chapter VII, Paras 7.01-7.08.
  3. Mundrika Prasad Singh v. State of Bihar, (1979) 4 SCC n/a.
  4. Kumari Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212.
  5. Harpal Singh Chauhan v. State of U.P., (1993) 3 SCC 552.
  6. State of U.P. v. Ramesh Chandra Sharma, (1995) 6 SCC 527.
  7. State of U.P. v. Johri Mal, (2004) 4 SCC 714.
  8. State of U.P. v. Ajay Kumar Sharma, (2015) SCC OnLine SC 1259; (2017) 3 SCC 568.
  9. Badri Vishal Gupta v. State of U.P., (2007) n/a (MP HC).
  10. State of U.P. v. U.P. State Law Officers Association, (1994) 2 SCC 204.
  11. Santosh Kumar Pandey v. State of U.P., 2019 SCC OnLine All n/a.