SC says prosecutors are advocates too

Considered government employees and not "advocates", public prosecutors and assistant advocates general of state governments can finally make use of their toil in the courtrooms for joining the judiciary.

Opening the gates of judicial services for them, a Bench led by Justice R M Lodha has ruled that prosecutors, like every other lawyer, is an "officer of the court" and hence he or she can count on such experience while applying for the post of district judges. District judges are appointed from judicial service or from amongst advocates who have at least seven years of experience as a lawyer.

Until now, public prosecutors were not treated as "advocates" in view of certain Bar Council of India (BCI) rules. The prohibition is based on the principle that since they hold a regular post under the state government and controlled as their employees, they cannot be treated as advocates.

However, the apex court has now negated the bar, holding that what mattered was not the terms of engagement but the kind of work they carried out. "The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an advocate. Or, in other words, whether pursuant to such employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an advocate," noted the Bench.

Enumerating the duties of an advocate under the Advocate Act, the Bench underlined that a prosecutor also performed the same two functions: protect the interest of his client and pursue the case briefed to him with the best of his ability, and act as an officer of the court.

The ruling came on a bunch of appeals by persons whose appointments as additional district and sessions judges had been quashed by the Punjab and Haryana High Court in May 2010 on the ground that they could not be treated as "advocates" since they functioned as prosecutors.

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