The U.P. Legal Remembrancer's Manual: A Critical Analysis of Its Framework and Judicial Scrutiny

The U.P. Legal Remembrancer's Manual: A Critical Analysis of Its Framework and Judicial Scrutiny

Introduction

The Legal Remembrancer's Manual (hereinafter referred to as "LR Manual" or "the Manual") of Uttar Pradesh stands as a pivotal administrative instrument governing the appointment, conditions of engagement, renewal, termination, and conduct of Government Counsel and Law Officers representing the State. Described as an "authoritative compilation of the Government orders and instructions for the conduct of legal affairs of the State Government,"[1] the Manual aims to provide a structured framework for the State's legal representation. However, its application and interpretation have been subjects of extensive judicial scrutiny, particularly concerning the principles of fairness, non-arbitrariness under Article 14 of the Constitution of India, and the balance between executive discretion and the rule of law. This article undertakes a comprehensive analysis of the LR Manual, examining its key provisions, the evolution of its judicial interpretation, and the persistent challenges in its implementation.

Historical Context and Evolution

The LR Manual has its origins in executive instructions compiled over time to regulate the State's legal machinery. Para 1.01 of the Manual itself indicates that its provisions are executive instructions for the conduct of legal affairs of the State Government.[2] It details various categories of Law Officers, including Government Counsel (Civil, Revenue, Criminal), the Judicial Secretary, and the Legislative Secretary.[3] Over the decades, the Manual has undergone amendments, and its provisions have been tested against constitutional mandates and statutory enactments, most notably the Code of Criminal Procedure, 1973 (CrPC). The judiciary, particularly the Supreme Court and the Allahabad High Court, has played a significant role in shaping the understanding and application of the Manual, often intervening to curb arbitrary state action and uphold constitutional principles.

Key Provisions of the U.P. Legal Remembrancer's Manual

The LR Manual contains detailed procedures and guidelines covering various aspects of the engagement of Government Counsel. Some of the most frequently litigated and analyzed provisions pertain to appointments, renewals, and the role of various functionaries.

Appointment of Government Counsel

Chapter VII of the Manual lays down the procedure for the appointment of District Government Counsel (DGCs). The process typically involves:

  • Applications being considered by the District Officer (District Magistrate).
  • Consultation by the District Officer with the District Judge regarding the suitability and merit of candidates.[4] The Supreme Court has emphasized that the State should give primacy to the opinion of the District Judge in such appointments to demonstrate fairness and reasonableness.[5]
  • Submission of names in order of preference by the District Officer, along with the District Judge's opinion, to the State Government. Due weightage is to be given to the claim of existing incumbents, if any.[4]
  • The Legal Remembrancer is then required to submit these recommendations with his own opinion for the orders of the State Government.[4]

The Supreme Court in Kumari Shrilekha Vidyarthi And Others v. State Of U.P And Others (1991)[6] established that appointments of Government Counsel are not mere professional engagements akin to private contracts but are appointments to a public office, thereby attracting the obligations of Article 14. The selection criteria are expected to be based on merit and integrity.[7]

Renewal of Tenure

The renewal of the term of Government Counsel has been a significant area of contention. Para 7.08 of the Manual, often cited in litigation, deals with renewal. Key judicial pronouncements clarify the nature of such renewals:

  • Nature of Appointment: The Supreme Court in State Of Uttar Pradesh And Others v. Rakesh Kumar Keshari And Another (2011)[8] and State Of U.P And Another v. Johri Mal (2004)[9] held that such appointments are professional engagements, not civil posts, and do not confer an indefeasible right to renewal.
  • State's Discretion: The State generally retains discretion in renewing terms. However, this discretion is not unfettered and must be exercised non-arbitrarily.[6] In State Of U.P v. Ramesh Chandra Sharma And Others (1995), the Court examined the claim for renewal under para 7.08, balancing state discretion with the need to avoid arbitrariness.[10]
  • Conditions for Renewal: Para 7.08 (often referred to via its footnote) typically outlines conditions for renewal, such as satisfactory performance, sound integrity, and good health. In Girja Prasad Shukla v. State Of U.P.& Others (1997), the Allahabad High Court directed reconsideration of renewal when these conditions were met but renewal was denied for extraneous reasons.[11]

The refusal to grant renewal cannot be arbitrary and is subject to judicial review under Article 14.[10] However, an advocate cannot claim automatic renewal till a prescribed age of superannuation unless specifically provided and justified.[10]

Termination of Services

The power to terminate the services of Government Counsel is also governed by principles of non-arbitrariness. The landmark decision in Kumari Shrilekha Vidyarthi[6] struck down an en masse termination of all Government Counsel by a general order, holding it to be arbitrary and violative of Article 14. The Court reasoned that even if the appointments were contractual, the State, as a party to the contract, must act reasonably and not arbitrarily. The termination of an individual counsel must also be based on valid, non-arbitrary grounds.

Conduct and Duties of Government Counsel

The Manual also outlines the duties and expected conduct of Government Counsel. For instance, Para 7.22(3) and Para 7.20(7) of Chapter VII stipulate that the District Government Counsel (Criminal) should inform the Legal Remembrancer about case developments and seek guidance or instructions from the District Magistrate or State Government in certain matters, such as filing applications under Section 319 Cr.P.C.[12]

Role and Office of the Legal Remembrancer

The Legal Remembrancer (LR) holds a significant position, often equivalent to a senior judicial officer, and is expected to provide independent and fair advice to the government.[13] The LR has a role in appointments, distribution of work, supervision, and sanctioning bills of counsel.[14] However, concerns have been raised about the erosion of the independence of this office, with judicial observations noting that the office should adhere to rules with firmness.[13]

Judicial Scrutiny and Interpretation of the LR Manual

The provisions of the LR Manual have been extensively interpreted by the judiciary, leading to the development of significant legal principles regarding state action in public appointments.

Application of Article 14 (Non-Arbitrariness)

The most profound impact of judicial review on the LR Manual has been the consistent application of Article 14 of the Constitution, which prohibits arbitrary state action. Kumari Shrilekha Vidyarthi[6] is the cornerstone in this regard, establishing that State actions concerning Government Counsel, even if contractual in nature, must be fair, reasonable, and non-discriminatory. The Court held that "the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition." This principle extends to appointments, renewals, and terminations. Any decision taken without a rational basis or based on extraneous considerations is liable to be struck down as arbitrary.[11] The principles of reasonable classification, intelligible differentia, and rational nexus, as elaborated in cases like Ramesh Chandra Sharma v. The State of Uttar Pradesh (2023)[15] concerning other state actions, are equally applicable here.

The Allahabad High Court in Suraj Narain Srivastava v. State Of U.P And Others (2003) explicitly held that if an administrative order appointing State Counsel contravenes the executive instructions contained in the LR Manual, it is rendered arbitrary and violative of Article 14.[2]

Scope of Judicial Review

While affirming the applicability of Article 14, the judiciary has also delineated the limits of judicial review in matters governed by the LR Manual. In State Of U.P And Another v. Johri Mal (2004)[9] and subsequently in State Of Uttar Pradesh And Others v. Rakesh Kumar Keshari And Another (2011),[8] the Supreme Court cautioned against judicial overreach. It held that judicial review is generally limited to grounds of illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety. Courts should not substitute their own judgment for that of the executive in matters of appointment or renewal unless the decision is demonstrably arbitrary or perverse. The High Court's attempt to institute a collegium system for appointments, not envisaged by statute or the Manual, was overturned in Johri Mal.[9] Policy decisions of the State are generally not interfered with, unless they are mala fide, arbitrary, or violative of statutory provisions.[9] The principle that government bodies possess discretion, especially when aligned with policy, as seen in State Of Uttar Pradesh And Others v. Vijay Bahadur Singh And Others (1982)[16] in a different context, also informs the understanding of executive powers under the Manual, albeit tempered by Article 14.

Statutory Status v. Executive Instructions

The LR Manual primarily comprises executive instructions.[2] While executive instructions do not have the same status as statutes, they are binding on the executive and are enforceable if they create rights or legitimate expectations, or if their violation leads to arbitrariness.[5] A critical issue arises when provisions of the LR Manual or amendments thereto conflict with statutory provisions. In State Of Uttar Pradesh And Others v. Ajay Kumar Sharma And Another (2013), the Supreme Court criticized the State of U.P. for amending Section 24 Cr.P.C., seemingly to overcome the decision in Shrilekha Vidyarthi, stating, "We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries."[5] Similarly, the Allahabad High Court in U.P Shaskiya Adhivakta Kalyan Samiti v. State Of U.P (2012) found a Government Order amending the LR Manual to be violative of Section 25-A Cr.P.C. (which aims to make the prosecution branch independent) and thus ultra vires.[13]

The "Spoils System" Controversy

A recurring theme in judicial pronouncements is the concern over the misuse of the LR Manual's provisions, leading to what is often termed a "spoils system." In Ajay Kumar Sharma (2013), the Supreme Court lamented:

"However, from 1990 onwards these provisions have become victim of the spoil system and have been misused by the party in power for conferring favours upon chosen advocates. In the last 2½ decades the appointments and renewal or non-renewal of the term of District Government Counsel and termination of their services generated huge litigation..."[5]
This politicization undermines the objectives of fair legal representation by the State and erodes public trust in the system.

Challenges and Criticisms

Despite judicial oversight, several challenges and criticisms persist regarding the functioning of the LR Manual regime:

  • Politicization: Appointments and renewals are often perceived as being influenced by political considerations rather than solely by merit and suitability.[5]
  • Lack of Transparency: While procedures exist, the decision-making process can lack transparency, leading to allegations of favoritism and arbitrariness.
  • Tension between Discretion and Rule of Law: Balancing the State's legitimate need for discretion in choosing its counsel with the constitutional mandate of non-arbitrariness remains a continuous challenge.
  • Independence of Functionaries: The independence of key functionaries like the District Judge (in providing opinion) and the Legal Remembrancer is crucial but sometimes appears compromised.[13]
  • Dilution of Oversight: Attempts by the executive to amend laws or rules in ways that might reduce judicial or procedural checks (e.g., amendments to Section 24 Cr.P.C. in U.P.) have drawn adverse judicial comment.[5]

The Path Forward: Reforms and Recommendations

The judiciary has, through its pronouncements, indicated pathways for reform. Key among these are:

  • Primacy of Merit and DJ's Opinion: Consistently giving primacy to the opinion of the District Judge in appointments and renewals, as suggested in Ajay Kumar Sharma[5] and Johri Mal,[9] can enhance fairness.
  • Transparency and Objectivity: Adopting more transparent and objective criteria for selection and renewal can reduce arbitrariness.
  • Adherence to Rule of Law: The State must scrupulously follow the procedures laid down in the Manual and relevant statutes, ensuring that actions are not driven by "administrative vagaries" or political motives.[5]
  • Strengthening Independence: Measures to strengthen the independence of the Legal Remembrancer's office and ensure that consultations with the District Judiciary are meaningful are essential.

Conclusion

The U.P. Legal Remembrancer's Manual is a critical document that structures the State's legal representation in Uttar Pradesh. While intended to ensure an organized system for engaging legal counsel, its implementation has been fraught with challenges, primarily revolving around the exercise of executive discretion and the adherence to constitutional principles of fairness and non-arbitrariness. Judicial review, spearheaded by landmark decisions like Kumari Shrilekha Vidyarthi, has played a vital role in infusing Article 14 into the Manual's operation, checking arbitrary actions and emphasizing that public power must be exercised in the public interest. However, the persistent concerns about politicization and the "spoils system" underscore the ongoing need for vigilance and reform. Ultimately, the efficacy of the LR Manual hinges on the State's commitment to upholding the rule of law, ensuring transparency, and respecting the institutional integrity of the processes it prescribes, thereby fostering a system of legal representation that is both competent and constitutionally sound.

References

  1. Harpal Singh Chauhan And Others v. State Of U.P . (Supreme Court Of India, 1993). [Reference Material 8 & 9]
  2. Suraj Narain Srivastava v. State Of U.P And Others Opposite Parties. (Allahabad High Court, 2003), referring to para 1.01 of the L.R. Manual. [Reference Material 10 & 18]
  3. Harpal Singh Chauhan And Others v. State Of U.P . (Supreme Court Of India, 1993), referring to para 1.06 of Chapter VII. [Reference Material 8 & 9]
  4. Harpal Singh Chauhan And Others v. State Of U.P . (Supreme Court Of India, 1993), referring to Chapter VII. [Reference Material 8 & 9]
  5. State Of Uttar Pradesh And Others v. Ajay Kumar Sharma And Another (Supreme Court Of India, 2013). [Reference Material 6]
  6. Kumari Shrilekha Vidyarthi And Others v. State Of U.P And Others (1991 SCC 1 212, Supreme Court Of India, 1990). [Reference Material 1]
  7. Mundrika Prasad Singh v. State Of Bihar (1979) 4 SCC 701, as cited in State Of U.P And Another v. Johri Mal . (2004 SCC 4 714, Supreme Court Of India, 2004). [Reference Material 3]
  8. State Of Uttar Pradesh And Others v. Rakesh Kumar Keshari And Another (2011 SCC 5 341, Supreme Court Of India, 2011). [Reference Material 5 & 17]
  9. State Of U.P And Another v. Johri Mal . (2004 SCC 4 714, Supreme Court Of India, 2004). [Reference Material 3]
  10. State Of U.P v. Ramesh Chandra Sharma And Others (1995 SCC 6 527, Supreme Court Of India, 1995). [Reference Material 15]
  11. Girja Prasad Shukla v. State Of U.P.& Others (1997 LCD 15 1059, Allahabad High Court, 1997). [Reference Material 16 & 20]
  12. Siyaram v. State Of U.P. (2014 JIC 3 426, Allahabad High Court, 2014), referring to paras 7.22(3) and 7.20(7) of Chapter VII of the U.P. Legal Remembrancer's Manual. [Reference Material 19]
  13. U.P Shaskiya Adhivakta Kalyan Samiti, 8, Mustafa Market, Si Petitioner v. State Of U.P Through Prin. Secretary Nyay Evam Vidhi Parama (Allahabad High Court, 2012). [Reference Material 7]
  14. State Of U.P v. U.P. State Law Officers Assn (Supreme Court Of India, 1993). [Reference Material 13]
  15. RAMESH CHANDRA SHARMA v. THE STATE OF UTTAR PRADESH (2023 SCC ONLINE SC 162, Supreme Court Of India, 2023). [Reference Material 2]
  16. State Of Uttar Pradesh And Others v. Vijay Bahadur Singh And Others (1982 SCC 2 365, Supreme Court Of India, 1982). [Reference Material 4]

Additional cases cited within the provided reference materials, such as Shailendra Kumar Ojha (Allahabad HC, 2003), Saroj Kanti Mukherjee (Calcutta HC, 2013), Santosh Kumar Pandey (Allahabad HC, 2019), Madhavan v. State Of Kerala (Kerala HC, 1997), and Mangilal Saraf (Rajasthan HC, 1998), further illustrate the widespread influence and interpretation of these principles across various contexts and jurisdictions, often drawing parallels with or directly referencing the U.P. LR Manual and the Supreme Court's pronouncements thereon.