Fairness in governmental action is the minimum expectation of any citizen living in a constitutional democracy. The legitimacy of the State does not rest merely on the authority it exercises, but on how that authority is deployed — whether decisions are reasonable, transparent, and impartial. This expectation is seriously undermined when public power appears to be bent to suit an individual through selective policy manipulation. Such actions weaken institutional integrity, distort rational governance, and hollow out the rule of law.
The Rajasthan High Court’s order dated December 2, 2025, in Sunil Samdaria v State of Rajasthan & Anr brings these concerns into sharp focus. While the case deals formally with the appointment of an Additional Advocate General (AAG), it raises deeper questions about nepotism, arbitrariness, and the dilution of constitutional ethics in the appointment of law officers.
The dispute over the appointment of an Additional Advocate General
The controversy arose from the State’s decision to appoint an Additional Advocate General despite allegations that the appointee did not satisfy the minimum experience requirement under the Rajasthan State Litigation Policy. Clause 14.4 of the policy prescribed a minimum of ten years’ professional experience for appointment as an AAG. However, just before the appointment, the State inserted Clause 14.8 into the policy.
Clause 14.8 begins with a sweeping non-obstante provision, empowering the “authority at the appropriate level” to appoint any counsel to any post after considering their expertise, notwithstanding anything else in the policy. In effect, this clause neutralised the mandatory experience requirement, operating as an escape route from an otherwise binding condition.
The writ petitioner sought a writ of quo warranto, arguing that the appointment violated the policy framework and amounted to a colourable exercise of power.
Is the office of Additional Advocate General a public office?
One of the central issues before the High Court was whether the post of Additional Advocate General constitutes a “public office” for the purposes of a writ of quo warranto. The Court declined to issue the writ, holding that the office of AAG is neither constitutional nor statutory, but contractual in nature, and therefore distinct from the office of the Advocate General under Article 165 of the Constitution.
This reasoning is open to serious critique. An AAG is remunerated from the public exchequer, functions exclusively on the instructions of the State Government, and performs duties that are governed by statutory rules and departmental manuals. Appointment orders themselves require AAGs to follow provisions of the Rajasthan Law and Legal Affairs Department Manual, underscoring the statutory character of their functions.
Further, the office of the AAG operates in close and intrinsic coordination with the Advocate General, effectively functioning as an extension of that constitutional office. Established constitutional jurisprudence has clarified that quo warranto lies not only against holders of constitutional or statutory offices, but also against those occupying independent substantive public offices or franchises. The Court’s narrow characterisation overlooks this functional reality.
Policy decisions and the scope of judicial review
The Rajasthan State Litigation Policy did not emerge in a vacuum. It was framed pursuant to judicial directions aimed at improving transparency and efficiency in State litigation. As an executive instrument issued in public interest, it falls within the ambit of “law” for constitutional scrutiny and is subject to judicial review.
While courts ordinarily exercise restraint in interfering with policy matters, there is no absolute immunity for executive policy. Where a policy decision is arbitrary, biased, or tainted by mala fides, judicial intervention is not only permissible but necessary. In this case, arbitrariness becomes evident when the sequence of events is examined. Clause 14.8 was introduced and the appointment was made on the very same day. Despite this chronology being explicitly raised by the petitioner, the High Court’s order remains silent on its implications.
The authority empowered under Clause 14.8 is the State Level Empowered Committee, comprising the Advocate General and senior civil servants heading key departments. Decisions taken by such bodies are unquestionably subject to judicial review and must satisfy the test of reasonableness and non-arbitrariness.
Escape clauses and colourable exercise of power
The insertion of Clause 14.8 reflects a deeper governance problem. By overriding mandatory eligibility criteria, the clause effectively renders the ten-year experience requirement redundant. More troubling is the manner in which discretion was exercised. The only safeguard accompanying the discretionary power under Clause 14.8 is the requirement of “considering expertise.” In the present case, this consideration was allegedly completed on the very day the clause was introduced and the appointment made.
Such use of discretion raises the spectre of colourable exercise of power — where authority is exercised ostensibly within legal bounds but for an improper purpose. When rules are rewritten to fit a person rather than persons being chosen to fit the rules, the distinction between discretion and arbitrariness collapses.
Why law officer appointments demand higher standards
Law officers occupy a uniquely sensitive position within the constitutional structure. They represent the State in courts, shape litigation strategy, and influence how government actions are defended and justified. Even if their engagement is contractual, their role is deeply entwined with the State’s constitutional obligations.
Normalising opaque appointments and flexible eligibility norms in such positions risks institutionalising patronage and eroding public confidence in the justice system. It also weakens the internal culture of legality within government, where adherence to rules is replaced by the convenience of exceptions.
What to note for Prelims?
- Writ of quo warranto under Article 226.
- Difference between Advocate General (Article 165) and Additional Advocate General.
- Meaning and effect of non-obstante clauses in policy or law.
- Status of State Litigation Policies as executive instruments.
What to note for Mains?
- Rule of law and non-arbitrariness in public appointments.
- Judicial review of executive policy decisions.
- Concept of colourable exercise of power.
- Institutional importance of transparency in appointing government law officers.
- Tension between executive discretion and constitutional accountability.
