Last year, 2016, was a bad one for Tamil Nadu’s ruling party, the All India Anna Dravida Munnetra Kazhagam (AIADMK). It lost its leader Jayalalithaa; and three crucial appointments made by her were set aside by the courts. All three selections appeared to be a form of spoils-sharing.
In the 17th and 18th centuries, a peculiar system of employment prevailed in the U.S. Leaders of the political party that came to power considered it their prerogative to appoint faithful followers to public offices; further, they removed those who did not support the party. Between 30,000 and 40,000 office-seekers used to converge in the capital to scramble for 23,700 federal service jobs. However, as the government grew, a serious need for qualified employees developed. The Civil Service Reform Act of 1883 re-established the United States Civil Service Commission. The Act rendered it unlawful to fill various federal offices through the spoils-system. Since then, a lot has been done to avoid the evils of the system. Federal civil service legislation has been greatly expanded. Many States and municipalities have made training and experience a prerequisite for appointment to public offices.
In India, Article 320 of the Constitution has resulted in the establishment of the Union Public Service Commission and various State Public Service Commissions to deal with rules to be framed for recruitment and other conditions of service. In essence, public service commissions act as watchdogs for the civil servants. However, over a period of time, recruitment to these commissions have become dependent on political loyalties.
SC’s observations
Aghast at the form of spoils-system haunting the public service commissions, the Supreme Court observed in one such case concerning the Bihar government: “The Public Service Commissions which have been given the status of constitutional authorities and which are supposed to be totally independent and impartial while discharging their function in terms of Article 320 have become victims of spoil[s] system” ( Upendra Narayan Singh, 2009 ).
Little did one realise that the warning of the Supreme Court would not be taken seriously by political parties. The result was that the 11 appointments made by the State Governor to the Tamil Nadu Public Service Commission were set aside by the Madras High Court; further, the Supreme Court refused to stay the order.
Among the 11 was a retired district judge whose request for extension of service by two years had already been denied by the High Court on the ground that his records were not clean. The appointments had been finalised in great hurry on a Sunday. The court held that it could not have been possible for the government to apply its mind to all the 11 appointments in one day and that the recruitment process was suspicious.
The post of State Consumer Forum president had been kept vacant for more than one-and-a-half years following the retirement of the previous incumbent. Contrary to the norms and practices, the State insisted on one particular retired judge getting appointed. However, thanks to the no nonsense attitude of Chief Justice S.K. Kaul, the government had to relent and appoint a person recommended by him.
Coming to the third appointment, the selection of Kalyani Mathivanan as the chairperson of Tamil Nadu Commission for Protection of Child Rights created a legal controversy. The qualifications for holding such a post are prescribed clearly under Section 17 of the Commission for Protection of Child Rights Act, 2005. The act requires the chairperson to be a person of eminence who must have done outstanding work concerning the welfare of children.
Even Ms. Mathivanan’s earlier appointment as the Vice-Chancellor of the Madurai Kamaraj University had been challenged on the grounds that she lacked even the minimum qualification. The apex court had then held that stipulations of the University Grants Commission (UGC) for the post of Vice-Chancellor, unless adopted by the State, could not be applied to unseat her.
However, when her appointment to the Child Rights Commission was challenged, the Tamil Nadu government could not convince the court about her credentials. Finally, it agreed to withdraw her nomination and to look for a more qualified person.
The three appointments, all political, cannot be looked at in isolation. They only show that the party in power is willing to bend rules to please its loyalists. Even in the case of appointment of a State Public Prosecutor, the opinion of the High Court is a must. However, other panel lawyers of both State and Central governments are selected by the ruling party.
Their tenure co-exists with the tenure of the government. The justification given is that just like a private person engages an advocate of his/her own choice, the government should be given the freedom to appoint lawyers of its own choice. However, the Supreme Court is now scrutinising the system. It has observed that the State should appoint only competent lawyers possessing integrity to represent it, failing which there is a strong possibility of “miscarriage of justice”.
Spoils-sharing
Does this mean that a lawyer with a political background can never be appointed by the party which comes to power? The issue here is not concerning the political background. The Supreme Court has held that political faith cannot be an inhibiting factor, even for appointment to government services. It said: “We think it offends the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individuals service. To hold otherwise would be to introduce ‘McCarthysim’ into India. ‘McCarthyism’ is obnoxious to the whole philosophy of our Constitution. We do not want it.” ( Ramashankar Raghuvanshi, 1983. )
In sum and substance, while McCarthyism is unacceptable, so is the system of spoils-sharing. Will parties in power wake up to the ground realities and abide by the fundamental duty in the matter of appointments so as “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement”?
Justice K. Chandru is a former judge of the Madras High Court.
