State Must Frame Guidelines Ensuring District Judge’s Primacy In Public Prosecutor Appointments: Kerala High Court
The petition was triggered by widespread systemic issues stemming from poorly managed prosecution appointments and long-standing vacancies.
The Kerala High Court has directed the State government to formulate clear administrative guidelines and establish a defined protocol to ensure that vacancies in the post of public prosecutors are promptly filled.
These observations came in the context of suo motu proceedings initiated by the High Court in 2021, triggered by widespread systemic issues stemming from poorly managed prosecution appointments and long-standing vacancies.
The Division Bench comprising Chief Justice Nitin Jamdar and Justice Ziyad Rahman AA said, “The State Government will frame internal administrative guidelines in strict conformity with Sections 18(3) of the Bharatiya Nagarik Suraksha Sanhita and the law laid down by the Hon’ble Supreme Court enumerated above. Such guidelines will contain the stipulations and methodology to ensure that the opinion of the District Judge is given primacy. Any guideline issued by the State Government that contravenes this requirement or dilutes the primacy of the District Judge's opinion will be contrary to the law laid down by the Hon'ble Supreme Court in the aforesaid decisions.”
The Bench criticized the State's reliance on Rule 8 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. The Court observed that these 1978 Rules pertain to the appointment of individuals to public offices, whereas public prosecutors do not hold such positions in the strict legal sense. Consequently, the application of these outdated rules to the appointment of public prosecutors was held to be legally untenable.
Further expressing concern over the deteriorating standards in criminal prosecution across the state, the Court highlighted how the appointment of unqualified or ill-equipped advocates has adversely impacted the justice delivery mechanism. The chronic delay in appointing public prosecutors and the failure to create new posts in a timely manner, it observed, had severely compromised the State’s responsibility to uphold justice.
"The delay in filling up the vacancies of Public Prosecutors in the State, and the failure to create the posts of Prosecutors in the criminal courts in time, directly affect the justice delivery system in the State. The State Government is under a duty to take measures to ensure the vacancies are filled in time," the Court said.
The Court expressed serious concern about the State's continued dependence on the obsolete 1978 Rules, which entrusted District Collectors—rather than judicial officers—with preparing a panel of eligible advocates, thereby bypassing judicial oversight.
Despite several authoritative Supreme Court rulings emphasizing the crucial role public prosecutors play in safeguarding the rule of law, the Court noted that Kerala’s appointment process had remained inconsistent with these principles, lacking proper statutory backing and often sidelining the judiciary's role.
To comprehensively address the issue, the Court convened a stakeholders’ meeting. This meeting involved top-level representatives including the Registrar General of the High Court, the Additional Chief Secretary (Home), senior officials from both the Prosecution and Law Departments, and the Amicus Curiae appointed in the case. During the discussions, there was a consensus on the urgent need to overhaul the existing appointment mechanism. It was also recognized that the present rules were not legally applicable for appointments under Section 24(3) of the Code of Criminal Procedure (CrPC).
Subsequently, the State government gave an undertaking before the Court that all existing vacancies in the post of public prosecutors would be filled without further delay. Based on this assurance, the Bench decided to close the proceedings.
However, the bench added, “If the internal guidelines issued by the State as above are found to be contrary to the above-mentioned mandate or the delay in appointing the Public Prosecutor persists, the Court will consider reviving this suo motu Writ Petition.”
Cause Title: Suo Motu Writ Petition Initiated By The High Court v. State of Kerala & Ors., [2025:KER:30823]
Appearance:
Respondents: Additional Director General of Prosecution Grashious Kuriakose, Senior Counsel BG Harindranath, Senior Counsel P Deepak as Amicus Curiae