KERALA HIGH COURT ACCORDS 'DUE PRIMACY' TO DISTRICT JUDGES IN PUBLIC PROSECUTOR APPOINTMENTS; APPROVES STATE GUIDELINES WITH MODIFICATION

KOCHI: In a significant judgment aimed at preserving judicial independence in the appointment of state counsel, the Kerala High Court has approved the State Government’s new draft guidelines for selecting District Government Pleaders and Public Prosecutors, subject to a vital modification.

A Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar VM ruled that the opinion of the District Judge must be given overriding importance in the selection framework, directing the State to substitute the phrase "due regard" with "due primacy" in its draft circular.

Judicial Oversight Safeguarded
The ruling concludes a series of Public Interest Litigations (PILs) filed by Advocates Sudheer PS and Vishnuprasad Nair. The petitioners had challenged the revised selection criteria, arguing that the state’s draft rules diluted the judiciary's role and opened the doors to potential executive overreach in appointing critical legal officers.

The controversy primarily centered around Clause 3 of the State’s draft guidelines. While the government proposed that the selection committee pay "due regard" to the District Judge's recommendations, the High Court and the appointed Amicus Curiae, Senior Counsel P. Deepak, emphasized that a stronger statutory safeguard was required.

Modifying the draft, the Division Bench observed:
"After giving anxious consideration to the aforesaid submissions, we feel that the only modification called for is in Clause (3) of the said draft circular where, instead of the expression 'due regard', the expression 'due primacy' shall be used."
By elevating the requirement to "due primacy," the judgment ensures that the executive cannot easily bypass or ignore the judiciary’s assessment of an applicant's competence, legal acumen, and character.

Police Role Kept Strictly Informational
The petitioners also vehemently contested the inclusion of the District Police Chief in the consultative appointment process, raising concerns over police interference in choosing prosecutors who are meant to act as independent officers of the court.

However, the High Court refused to strike down the inclusion of the police chief, validating the administrative logic behind the rule. The Bench clarified that the law enforcement chief’s involvement is confined to verifying the background and antecedents of candidates.

The Court noted that given the immense public responsibility associated with the office of a Public Prosecutor, it is imperative that a candidate's record remains entirely free from doubt. Crucially, the Bench reassured that the police report would serve merely as an administrative aid rather than a deciding factor, stating:
"The opinion of the District Police Chief is not conclusive, but is intended merely to assist the committee to find out the antecedent of the candidate."

Alignment with the BNSS
The roots of the dispute trace back to April 2025, when the High Court initially directed the Kerala Government to formulate transparent internal selection rules. This directives arose out of the transition to Section 18 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which repealed and replaced the old Code of Criminal Procedure (CrPC).

Section 18 of the BNSS mandates a structured statutory procedure for establishing panels for public prosecutors. Following the High Court’s initial mandate, the State issued a revised draft circular in December 2025, which has now secured final legal clearance following this week's judicial amendment.

With the modification firmly in place, the Division Bench formally closed the PILs, marking a definitive step forward for Kerala's criminal justice administration.

Discription: This report covers the Kerala High Court's landmark decision ensuring that the judiciary retains the ultimate say in appointing Public Prosecutors, preventing the process from becoming entirely controlled by the government. It explains how the court ordered a crucial wording change in the state's draft rules—elevating the District Judge’s input from "due regard" to "due primacy"—which ensures their recommendations cannot be casually brushed aside by the executive.

The text further addresses the controversial inclusion of the District Police Chief in the selection process. It explains the court's reasoning that while a police background check is practical to ensure a candidate’s integrity, it remains strictly informational and carries no final decision-making power. Ultimately, it frames this ruling within the transition to Section 18 of India's new criminal code, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.