Govt can't claim prerogative in prosecutor's appointment: SC

Rejecting government claim of prerogative, the Supreme Court has said it cannot claim to have exclusive right in appointment of prosecutor in a criminal case.

Directing the government to appoint senior advocate UU Lalit as special public prosecutor for the trial in the 2G scam, a bench of Justices GS Singhvi and AK Ganguly brushed aside the Centre's stand that only government has the right to appoint Special Public Prosecutor(SPP) in the 2G spectrum allocation scam.

While objecting to the court's decision to appoint SPP in the case, Additional Solicitor General Harin Raval, appearing for the Enforcement Directorate, had said it is the "prerogative" of the government to take decision on appointment of lawyers in the case.

Raval cited an earlier verdict of the apex court in the fodder scam in which it was held that appointment of lawyers in a criminal case was the prerogative of the government and the prosecuting agency and the court has no role to play.

Differing with the stand of the counsel for ED, the bench said the earlier verdict was rendered "in a totally different fact situation".

"We are of the view that the expression prerogative cannot be used in the context of a statutory provision. Under our Constitution and statutory framework, there is nothing known as prerogative," the bench said.

The bench quoted from late jurist NA Palkhivala's treatise "Our Constitution: Defaced and Defiled" which read, "Our Constitution recognises no prerogative whatsoever; it recognises merely rights, duties and discretion. The difference between 'prerogative' and 'discretion' is clear.

"A person who has a prerogative can act arbitrarily or irrationally and yet his decision must be treated legal and valid. On the other hand, if the person has the discretion and not the prerogative, to make a decision, the discretion can only be exercised fairly and reasonably; otherwise his act is void on the ground that there was no valid exercise of discretion in the eyes of law."

The court said it was in "respectful agreement" with Palkhivala's view saying it was not not changing any public prosecutor who has already been appointed.

The bench said that the question in the present case was never an issue in the fodder scam case and therefore the decision in that case was not of much relevance here.

Observing that there is a public element in such appointment, the court said "UU Lalit satisfies the said requirement quite adequately. Therefore, we are unable to accept the contention of the Union of India and we hold that in the interest of a fair prosecution of the case, the appointment of UU Lalit is eminently suitable."