Verdict corner: Law officers must be men of merit

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Published: April 8, 2016 6:17:35 AM

In a much awaited verdict, the Supreme Court has asked state governments to make a realistic assessment of their requirements and adopt fair, transparent and objective criteria based on merit for appointment of law officers.

In a much awaited verdict, the Supreme Court has asked state governments to make a realistic assessment of their requirements and adopt fair, transparent and objective criteria based on merit for appointment of law officers.

Virtually questioning if most law officers assumed the post merely because of their affiliation to the ruling party, it said such appointments—from advocate general to those below—by state governments to represent them before the courts should not be reduced to an exercise of “political aggrandisement, appeasement or personal benevolence by those in power.”

Calling for halting the “process lest even the right thinking become cynical about our capacity to correct what needs to be corrected,” Chief Justice TS Thakur, who delivered the judgement last week, said that public interest should be the guiding consideration while appointing law officers. “In the matter of selection of lawyers, those who are running the government or the public bodies are under an obligation to make earnest efforts to select the best from the available lot. This is more so because the claims made by and/or against the public bodies are monetarily substantial and socially crucial with far-reaching consequences,” he said.

Dealing with a batch of petitions challenging appointment of law officers, including assistant and additional advocate generals in Punjab and Haryana, the Supreme Court said, “…the dangers of such an uncanalised and unregulated system of appointment, it is evident, are multi-dimensional, resulting in erosion of the rule of law, public faith in the fairness of the system and injury to public interest and administration of justice.”

The apex court’s stand assumes significance as the CAG had pointed to serious irregularities in the working of law officers of Haryana between December 2009 and January 2012. The judgment also quoted the CAG’s report of Social, General and Economic sectors (non-PSUs) to note that, in January 2012, of the 179 law officers on the roll, on an average 140 were not allotted any work and 87 were without work for the whole month but were still paid. The excess number of law officers led to the payment of “idle salaries” to the tune of R69.48 lakh for that month.

Driving home its point, Justice Thakur said that if state resources could not be given to private contractors in an arbitrary manner, similarly there has to be some yardstick for the appointment of law officers as they are paid from state exchequer.

The Bombay High Court, in a similar case, had said that “the power of the state government to appoint law officers of their choice cannot be disputed, but the appointment in such a post must not be a political one.”

Welcoming the decision, legal experts feel there can’t be a uniform method but the process of selection should be objective, and if a person does not have a political clout, she should not remain excluded from consideration for appointment as law officer.

According to senior lawyer Harish Salve, “Law officers should be selected on integrity, merit and experience. While they should enjoy the confidence of the government, they need not be politically affiliated. The current Attorney General Mukul Rohtagi and Solicitor General Ranjit Kumar are the two top apolitical lawyers.”

“Law officers discharge an important public function. Their appointment should be on merit, based on a transparent criterion. Reported judgments in cases argued, articles written, legal aid work done can be looked into. When merit is equal, the government can appoint one in whom they have confidence, for at the end of the day, there is also the aspect of lawyer-client relationship. Appointment only on political considerations should be deprecated,” senior SC lawyer and former additional solicitor general in the UPA regime KV Viswanathan said.

According to him, in the Kumari Shrilekha Vidyarthi case, the Supreme Court has said “the spoils system should not plague law officer appointments. Spoils system is the practise where offices are distributed as loaves of bread to supporters of a political party, when they come to power.”

The Madras High Court has also deprecated the decades-old practice of ruling parties appointing their loyalists as law officers in lower courts as well as in the High Court. Law officer post is not a political one; it is a public post with greater responsibility in the administration of justice. Appointment of law officers must be based on merit, ability and integrity alone, it said.

On September 5, 2014, the PMO had sent a communication to all the ministries and departments to focus on merit while proposing candidates for a particular assignment.

In April 2013, Arun Jaitley, the then Leader of the Opposition (Rajya Sabha), had suggested that the panel of lawyers who appear and advise the government must be independent. They must be appointed by the Director of Prosecution in consultation with the Lokpal. “The stature and dignity of law officers has been gradually eroded. Far from being constitutional advisors to the government or the court, they have become instruments of lego-political management on the behalf of the government…”

Though unwritten qualifications are that the advocates should be the cardholders of the party concerned and should have appeared for party leaders, even people without political connections but who are clean and reasonably meritorious too should be considered, as otherwise it results in a “heartburn”.

According to Justice Thakur, “The government law officers should be men of merit and not men with connections.” This process definitely requires transparency.

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