Arbitrariness in selection of Counsels and Struggle for ensuring an opportunity for All

Are the positions of Law Officers and Advocates in various Government Bodies, Boards and Corporations meant for advocates belonging to, or affiliated with, political parties in power or do advocates in general have the right to be considered for such appointments? The said question is examined in this paper and also throws light on a struggle to ensure an equal opportunity for all.

Rule of Law – A bedrock of Indian Constitution
Rule of law is one of the major aspects of good governance. The phrase “Rule of law” is derived from the French phrase ‘ Le principe de legalite’ which implies principle of legality. It refers to a Government based on the principles of law and not those of men. It is one of the basic principles of the Indian Constitution. Yet, in our society, the rule of law has not achieved the intended purpose.

BBC journalist Tufail Ahmad, in First Post dated 3.5.2018 stated:
“In the Indian democracy, politicians in the power are new ‘Kings’ and above the law. The principle of Rule of Law, that – ‘state is governed not by ruler but by law, no one is above the law and the law must prevail irrespective of which political party comes to power’, is routinely trampled upon by our rulers.”

In Secretary State of Karnatka & others Versus Uma Devi (1992 3 SCR 826), the Constitutional Bench of Supreme Court of India has laid down the law in the following terms:
‘Thus, it is clear that adherence to rule of equality in public employment is a basic feature of our Constitution & since the Rule of law is the core of our Constitution, a court would certainly be disallowed from passing an order upholding a violation of Article 14 or ordering the overlooking of need to comply with requirements of Article 14 read with Article 16 of the Constitution.’

Supreme Court on Appointment of Counsels
A case from States of Punjab and Haryana titled State vs Brijeshwar Singh Chahal & Another invited the attention of Supreme Court on the prevailing system of appointment of State Counsels. The common grievance was that no criteria was followed by the State for such appointments which were made on whims and fancies of political executive.
The Hon’ble Supreme Court of India came down heavily on such illegal practices and laid down certain principles:

(i) The Government and so also all public bodies are trustees of the power vested in them.
(ii) Discharge of the trust reposed in them in the best possible manner is their primary duty.
(iii) The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner.
(iv) The duty to act in a fair, reasonable, non discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours.

All have right to be considered without political interference
The Apex Court observed:
Appointment of Government counsel at the district level and equally so at the High Court level is not just a professional engagement, but such appointments have a “public element” attached to them.
Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations.
The government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts.
The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.
All such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.
Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

Final directions by the Apex Court
The Court directed that State shall frame criteria for appointment of State Counsels. A duly constituted selection committee shall interview the applicants and conduct the selection process. Thereafter the panel of selected candidates shall be placed before the Chief Justice of the State for his final approval. The Chief Justice may, based on any such recommendations, record his views regarding suitability of the candidates included in the panel.
The Government shall then be free to appoint the candidates having regard to the views expressed by the Chief Justice regarding their merit and suitability.

Similar Petition filed in High Court of HP
Armed with such observations of the Supreme Court, some advocates from different places in Himachal Pradesh approached PeRGo for filing such a petition. Since the issue was for fighting against arbitrary use of power by the government, PeRGo extended its help in drafting the petition and arguing it in the Court. Needless to mention PeRGo does not charge anything for offering its services. Accordingly CWP No. 2969 of 2016 titled, “Narender Kumar Reddy & Others Versus State of Himachal Pradesh & Others”, was filed before the High Court of Himachal Pradesh wherein the petitioners had prayed for formulation of selection criteria for appointment of Additional Advocate Generals and Deputy Advocate Generals, etc.

Directions by the Court
High Court of Himachal Pradesh, vide its judgment dated 22.5.2017 directed the State of HP to comply with the principles laid down in judgment of Supreme Court. This judgment paved the way for adoption of selection criteria for appointments of State Counsels and gave a right to all the advocates for applying and to be considered for such appointments. Now these were not pure whims and fancies of the political executives which could determine the selections.

First time open interviews in the State for appointments of State Counsels
The State was reluctant to frame the selection criteria because it would not be able to use free hand to offer appointments to its chosen few. Accordingly a contempt petition was filed and the State of HP came out with Rules which would govern the selection process granting opportunity to all the advocates. So this lead to the interviews for selections of State Counsels including Additional Advocate Generals, Deputy Advocate Generals and Assistant Advocate Generals. It was a first timer in nearly fifty years history of State.

Similar issues of such Appointments in other Government Bodies
Encouraged by the aforesaid success, a few more lawyers practising in different parts of Himachal Pradesh approached PeRGo for granting help to take up similar issue pertaining to appointments of Advocates in other government bodies like Universities, Boards, Corporations etc. As in the case of State Counsels, these bodies also do not follow any criteria for appointment/engagement of advocates. Again the political party in position decides who is to be appointed to these positions.
Being ever ready to work for a legitimate cause, PeRGo again took the matter under its wings. Accordingly, a petition was prepared (C.W.P. No.1314 of 2017) titled Pawan Kumar & others vs State of HP, and was filed in the High Court. The case was argued by PeRGo lawyers and all legal assistance was given free of cost. The petitioners claimed that they were granted a fundamental right to equality under the Constitution and had the right to be considered for such appointments.

Orders passed by the Court led to Constitution of Committee for formulating Selection Criteria
Finally, in response to the above petition and subsequent orders passed by the Court, the Government of Himachal Pradesh came out with a notification dated 03.08.2019, whereby a Committee has been constituted to recommend the procedure for selection and appointment of such advocates for appointment in various Boards/ Corporation and statutory bodies.

Next Selections shall see Selection Criteria for Appointments
The Committee so constituted is required to frame a procedure for selection of advocates to represent various government bodies. So the next selections shall see some transparency in appointments and remove political arbitrariness from exercise of such power.

PeRGo contributes to check Arbitrary use of Power
Another success for PeRGo in achieving its objectives! In this case, the maintenance of Rule of Law as laid down in our Constitution.