POLITICAL LINKS CANNOT DECIDE GOVERNMENT LAWYERS.

An advocate's performance in courts, and not his political connection, would count for her/his appointment as government lawyer, the Supreme Court has said dismissing the Bihar government's plea for a free hand in making appointment of government lawyers. The Nitish Kumar government engaged Attorney General Mukul Rohatgi in addition to Standing Counsel Shoeb Alam to challenge the Patna High Court's judgment directing the State to follow the model procedure set by the Apex Court for appointment of Government Lawyers for District Courts and Additional Advocates General (AAG) for Punjab and Haryana. The two states were infamous for appointing dozens of advocates as AAGs merely because of their proximity to politicians.

Rohatgi argued before a Bench of Chief Justice J.S. Khehar and Justices D.Y. Chandrachud and Sanjay Kishan Kaul that the state already has put in place a litigation policy which envisages a process for appointment of Government Lawyers. "Where will this end? If the High Court can direct today how Government Lawyers should be appointed, tomorrow it would be for public sector enterprises, panchayats and other semi-government organisations", he said.

With the common knowledge that governments are the biggest litigants, The CJI-headed Bench said: "The cases involving the governments were crucial in many aspects touching key areas of governance. A certain degree of competence was required from the advocates to represent the government and render  meaningful assistance to the courts. Have some mercy on the courts too. Mere connection with politicians should never be the criteria to appoint an advocate as government lawyer.

With these remarks, the Supreme Court dismissed the Bihar government's appeal against the 17th November, 2016 judgment of the Patna High Court, which had asked the state government to adopt the Punjab and Haryana model dictated by the Apex Court for selection of Government Lawyers in Brijeshwar Prasad case in 2016. The Apex Court had also said that though these directions were for Punjab and Haryana, other states would do well to reform their system of selection and appointment of Government Lawyers to make the same more transparent, fair and objective. The High Court had faulted the Bihar litigation policy saying it did not satisfy the criteria of transparent, fair and objective appointment process. 

In Brijeshwar Prasad case, the Apex Court had regretted that "the states continue to harp on the theory that in the matter of engagement of state counsel, they are not accountable and that engagement is only professional and/or contractual, hence, unquestionable. It is too late in the bay for any public functionary or government to advance such a contention leave alone expect this court to accept the same".

It said: "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 consideration (read political connection of advocates)".

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