A missed judicial opportunity to uphold Constitutional fairness

Fairness in governmental action is the minimum expectation of every citizen living in a constitutional democracy. The legitimacy of the State rests not merely on the authority it wields, but on the reasonableness, transparency, and impartiality with which that authority is exercised. Yet this expectation suffers repeated blows when government action appears tailored to benefit an individual through selective policy bending. Such manoeuvres erode rational decision-making, weaken institutional integrity, and undermine both substantive and procedural safeguards embedded in the rule of law.

The order dated December 2, 2025, passed by the Hon’ble Rajasthan High Court in Sunil Samdaria v State of Rajasthan & Anr, represents a troubling instance where constitutional ethics and the rule of law were not adequately defended. Beyond the immediate controversy, the case throws light on a deeper malaise — the growing normalisation of nepotism and arbitrariness in the appointment of law officers. The High Court upheld the appointment of an Additional Advocate General (AAG) for the State of Rajasthan, despite serious allegations of substantive and procedural impropriety surrounding the process.

At the heart of the dispute lies the insertion of Clause 14.8 into the Rajasthan State Litigation Policy, which reads: “Notwithstanding anything contained in the Policy, the authority of the appropriate level shall have power to appoint any counsel to any post after considering his expertise in the respective field.”

The writ petitioner sought a writ of quo warranto, alleging that the appointment violated Clause 14.4 of the same policy, which mandates a minimum of ten years’ professional experience for appointment as an AAG. The sudden addition of Clause 14.8 effectively neutralised this requirement, functioning as an “escape clause” to bypass an otherwise mandatory condition.

The reasoning adopted by the Hon’ble High Court suffers from infirmities on at least three fundamental grounds.

First, the Court declined to issue a writ of quo warranto on the premise that the office of Additional Advocate General is not a “public office”, since it is neither constitutional nor statutory, but merely contractual and distinct from the office of the Advocate General under Article 165 of the Constitution. This reasoning overlooks critical realities. An AAG draws remuneration from the public exchequer, acts strictly on the instructions of the State Government, and performs functions that are statutory in nature. The appointment circular dated August 23, 2024, expressly directs AAGs to follow Rules 7 to 9 of the Rajasthan Law and Legal Affairs Department Manual, 1999, underscoring the statutory character of their duties. Moreover, the office of the AAG functions in close and intrinsic coordination with the Advocate General, effectively operating as an extension-or franchise-of that constitutional office.

The Constitution Bench judgment of the Hon’ble Supreme Court in State of Mysore v CD Govinda Rao (1965) clarified that quo warranto lies against any person holding an independent substantive public office or franchise. The High Court’s narrow characterisation of the AAG’s office fails to engage with this settled jurisprudence.

Second, the Rajasthan State Litigation Policy itself owes its existence to judicial directions issued by the Hon’ble Supreme Court in State of Rajasthan v. Man Sukh Das (2018), where the Court mandated that such a policy be framed in public interest.

An “order” falls squarely within the definition of “law” under Article 13 of the Constitution. Consequently, the policy is subject to judicial review. There is no blanket immunity for policy decisions. In Tata Cellular v. Union of India (1996), the Supreme Court held that courts may interfere where a policy decision is arbitrary, biased, or tainted by mala fides.

Arbitrariness in the present case becomes evident when events are examined chronologically. Clause 14.8 was inserted on August 23, 2024 and the appointment was made on the very same day. Despite this sequence being specifically highlighted by the petitioner, the High Court’s order remains conspicuously silent on it. Further, the “authority at the appropriate level” under Clause 14.8 refers to the State Level Empowered Committee under Clause 9.1, comprising the Advocate General and senior civil servants heading key departments. Decisions taken by such public authorities are unquestionably amenable to judicial review and must withstand the Wednesbury test of reasonableness.

Third, the insertion of an escape clause to override mandatory eligibility criteria reflects a colourable exercise of power. Clause 14.8 effectively nullifies the ten-year experience requirement under Clause 14.4. More disturbingly, the purported “consideration of expertise” — the sole safeguard accompanying this discretionary power-was allegedly completed on the same day the clause was introduced and the appointment made.

No material demonstrating such consideration was placed on record, nor did the High Court insist upon it.

Clause 14.2 of the Policy further requires that the appointment of an AAG be made on the advice of and in effective consultation with the Advocate General. This raises serious questions of procedural propriety. If the amendment and appointment occurred on the same day, when did such advice and consultation meaningfully take place?

The High Court’s observation that “the art of advocacy is not bound by years of experience” may be philosophically appealing, but it cannot substitute for objective criteria in public appointments. Notably, the Court did not cite any reported judgments, significant matters, or prior occasions where it had occasion to assess the appointee’s advocacy.

This issue is not isolated. Recently, the First Generation Lawyers Association challenged similar empanelments before the Delhi High Court, pointing to fresh graduates being placed in elite panels to represent the Union of India, while far more experienced Advocates-on-Record were relegated to lower categories. Such practices, though contractual in form, strike at the heart of equality, transparency, and fairness.

Appointments by the State-contractual or otherwise-must conform to constitutional values. This demands clear selection criteria, open advertisement, and a transparent process. In an era of overwhelming applications, the use of artificial intelligence to assist in objective segregation and evaluation is not only feasible but desirable. What must not be allowed is the quiet bending of rules to fit individuals, for that is where constitutional decay begins.

The author is an advocate and writes on law and the legal system; views are personal