Has Governance Misnomed The Democracy in India ?

(By Liju V. Stephen, Advocate, High Court of Kerala)

“Where there is no law, there is no freedom”                                                                                                                                -- John Locke.

The Indian constitution envisages a constitutional form of democracy but unless the fundamental facets of democracy are upheld, it would be just a misnomer to call it a truly democratic country. Democracy can never be attained unless the 3 facets of democracy are maintained (1) Strict adherence to The Laws (2) Equality and Equal Opportunities to all the Citizens and (3) Citizens right to live without fear in a civilized society. If any of these 3 facets fail it would not be Democracy but some other form of Government.

A glance through the Indian legislatives enactments make sure that it is not the lack of Law that hampers the Democratic system but lack of proper implementation of the same. Lack of proper implementation of law arises in various forms. The tinkering of the statutory provision by subordinate legislation many a times losses the teeth for which the legal enactment was originally made for. The passive response of the Executive and its delay to act in accordance with law necessitates the citizens to approach the Constitutional Courts under Article 32 and 226 whereby which the number of cases over burdens these Constitutional Courts. The majority of the cases in constitutional courts are nothing but the basic duties which the Executive fail to act on time. And in the Criminal legal system the escaping of real culprits from the clutches of law are mainly due to the fact that the investigation of the offence by officers without the proper understanding of Law makes inadvertent or advertent loopholes in the investigation reports which enable the culprits to get away from the clutches of law. The Judicial Courts which tries the offences on the basis of these reports furnished by the investigating officers have no go other than acquit the accused. As long as Criminal Jurisprudence lacks the Legal Enactments to search and find out the real culprits even after a criminal trial, the real culprits languishes in the society as a mockery to the so called lawful society. And the law protects the pitfalls of officers on bona fide grounds. It is not that it is only the executive organs that are to be entirely blamed for and that the judicial system is not tainted with, but when compared to the other organs of Government the judiciary has the less numbers of deviants, of course not absolutely without.

The Second Facet of Democracy is the right to Equality which is enshrined in Article 14 in our Constitution whereby the Indian Constitution treats all the citizens equally and with equal opportunities. But the fact remains that the Government and its machineries are not mainly utilized for the majority of the common man but for the privileged politicians, bureaucrats and the business corporate. The recent judgment of the Supreme Court inRam Singh and others v. Union of India reported in (2015) 4 scc 697, with regard to Jat community reservations held that the Government is not to circumvent the law and its machineries to favour the few for getting votes. Article 14 guarantees equality to the citizens of India with exception by Article 16(4) and Part xvi that for the upliftment of the socially backward class, reservations can be made. It is dubious that in spite of the Government policy for upliftment of the socially backward classes, even after a period of 65 years of the implementation of the said policy, the number of the backward class in India are day by day increasing, which makes it evident that the Government policy is only farce and the regulations are being misutilised, and the so called upliftment has not yet been attained. And communities are striving to get into the so called backward class list so that reservation benefits accrue to them. And the political parties utilizing the said opportunity to secure votes by giving false promises .No citizens of India would be against giving reservation to the deserving persons and communities, but it is unfortunate that the said policies are being misutilised and thereby the lawful opportunities are being denied to the deserving persons, and thereby resources of the state can’t be optimized for providing better living standards to the citizens.

The crouching summer heat in 2015 had taken life of more than 1200 people in the State of Andhra Pradesh alone and the reason being lack of proper shelter. Were they not citizens of India for whom also the Indian Constitution guaranteed protection of their lives? What are the taxes and levies collected from the people being utilized for? And the answer is that they are being diverted to the privileged by way of loans and write-offs to support their extravagance. Dating back to the formation of the Institution of Government was to support the citizens but now it is the reverse that the people are serving the Government and they are taxed to sustain the Government. The majority of the income that is collected by way of taxes and levies are spent for providing salaries to Government officials in States like Kerala, and the money which ought to be spent for providing better standard of living for the citizens are denied to them. To have a good road, continuous electricity, drinking water and other infrastructures are just a dream for the majority of the common man. It cannot be faulted that the young educated cream of India migrates to the other parts of the world seeking better employment and living standards, they don’t want to hear the routine gimmick of the age old politicians and their political philosophies. Any democratic form of Government can prosper only if the law is implemented equally for all, or else few of the elite class and their community would create a class of its own.

The Third facet of democracy is in fact the predominant one that is the right of citizens to live without fear in a civilized society. Freedom to live without fear is necessarily a fundamental right which should be given the utmost priority. All citizens should have the right to lead a dignified way of life and to live according to his wish and choice. Of course if any element of acts which is adverse to the interest of the nation the law should take care of the same and punish the guilty by the due process of law. But it is not the same to let few persons to carry out their whims and fancies to declare the nation to their will. When Pakistan declared itseif as an Islamic republic, demands were made to declare India into a Hindu nation but the Constituent Assembly did not heed to the said demand and declared India into a secular Democratic Country. The recent news report from parts of India gives a picture of how a class of individuals who have no respect for this great country is taking law into their hands and depriving the fellow citizens the fundamental rights guaranteed under the Indian Constitution. It has not been too long to forget the history of India which witnessed the worst blood shed as an aftermath of the “Direct Action Day” and the “Babri Masjid demolition” where thousands of Indians were killed in the communal riots. Is that not enough or let another ten thousand to be massacred. What are all these for? For few politicians to get on to power? Whether be it Hinduvata , Jihad or Christianity it is going to affect the Democratic fabric of this great nation and pushing our country and our children to chaos and misery.

Whether it is a Political party or any other organization, the right to form an association or to profess and propagate an ideology emanates from the right guaranteed under Article 19 and 25 of the Indian Constitution. Once the said organization commences its operation from the right so guaranteed it shall not deviate from the constitutional mandates. Article 13 of the Indian constitution declares any law that is inconsistent with the fundamental rights guaranteed under part iii of the Indian Constitution to be void. Article 13 of the Indian Constitution is so wide that it is not the legislative laws alone that comes under its sweep but non legislative sources also comes within its sweep .Hence any unlawful or illegal act of any political party or any organization that breaches the constitutional mandates the Government should curb the said act as unconstitutional. The Government being the repository of power given by the citizens to act under the constitution should first and foremost be accountable to the constitution, or else it is the people of this great nation that is to suffer and fail, and democracy would just be in words.

Let us be an Indian first.

Commissioners

(By V.M. Balakrishnan Nambisan, Advocate, Taliparamba)

In Civil Suits, where the subject matter is immovable property, identification of the property is a must (See Order 7 Rule 3 of C.P.C.) Courts can issue a Commission for this purpose, “ to such person as it thinks fit”, directing him to make a local investigation, survey the property, take measurements, identify it, prepare a plan and report and submit it to the Court (See Order 26 Rule 9 of the Code).

Court can of course issue the Commission to any person (not necessarily an advocate) as it thinks fit. In practice, however, advocates, in most cases juniors, are appointed as Commissioners. When they get it they get puzzled. Because, unfortunately, advocates are not trained in this field. As such, they seek the help of either Village Assistants or Private Surveyors. This causes more expense for the litigants apart from delay in getting the help of Surveyors.

If advocates are trained to do the surveying, there are two advantages; firstly they themselves can do the surveying and prepare the plan and report to their satisfaction. Further, by getting practical training during their early days, they can equip themselves to conduct their own title suits effectively and efficiently.

I would therefore suggest to include land survey as one of the subjects for the law students in their curriculum and request the concerned authorities to give due consideration for this suggestion.

taking cognizance of an offence - the dissillusionment continues

(By V. Ramkumar, Former Judge, High Court of Kerala)

The essential facts discernible from a nascent verdict of the Supreme Court of India in Crl. Appeal No. 844 of 2015 ( 2015 (3) KLT 382 (SC)- S.R. Sukumar v.S. Sunaad Raghuram) handed down (as reportable) on 2.7.2015, are as follows:-

 9.5.2007:    A complaint was filed by one Sunaad Raghuram before the Addl.

                     Chief Metropolitan Magistrate against one Sukumar (A1) and his mother

                     (A2) alleging the commission of offences punishable under sections120B,

                     499 and 500 I.P.C.

18.5.2007:  The Magistrate took cognizance of the offences under Section 200 Cr.P.C. and

                     recorded in part the sworn statement of the complainant and adjourned the

                     case to 23.5.2007 for want of time. The above proceedings were recorded by

                     the Magistrate in the proceedings sheet.

23.5.2007:  Recording of the sworn statement of the complainant was completed. The

                     matter was then adjourned to 24.5.2007 on request.

24.5.2007:  The complainant filed an application for amendment of the complaint by

                     introducing a subsequent event constituting a new cause of action by seeking

                     to incorporate 2 more paragraphs in the complaint.

24.5.2007:  The Magistrate allowed the application for amendment holding that he had not

                     taken cognizance of the offences earlier. He then took cognizance of the

                     offences.

26.6.2007:  The Magistrate permitted the complainant to carry out the amendment and

                     directed the issue of process against A1 alone.

2007:           Aggrieved by the above order A1 approached the High Court by filing a petition

                     (presumably under Section 482 Cr.P.C.) praying for quashing the order dated

                     21.6.2007 passed by the Magistrate contending, inter alia, that there was no

                     provision in the CrPC for amendment of the complaint and that, at any rate, the

                     Magistrate went wrong in allowing the application after he had already taken

                     cognizance of the offence.

21.1.2012:  The High Court dismissed the petition holding that-

                     i)  before allowing the amendment, the Magistrate had not taken cognizance of

                     the offence.

                     ii) no prejudice was caused to the accused.

                     iii) if the amendment was not allowed, then it would have resulted in multiplicity

                     of proceedings between the parties.

2012:           A1 preferred S.L.P. (Crl.) No.4813/2012 before the Hon’ble Supreme Court.

                     Leave was granted and the appeal was numbered as Crl. A. No.   844/2015. :

5.1.15          A two - Judge Bench of the Supreme Court (2015 (3) KLT 382 (SC)) dismissed

                     the criminal Appeal. The following propositions of law/observations made by

                     the Apex Court have surprised the author:-

A)       “Merely because the complainant was examined that does not mean that

the Magistrate has taken cognizance of the offence” (Paragraph 8).

B)       “Only upon examination of the complainant, the Magistrate will proceed to

apply the judicial mind whether to take cognizance of the offence or not

(Paragraph 11).

C)       “Under Section 200 Cr.P.C., when the complainant is examined, the

Magistrate cannot be said to have ipso facto taken cognizant, when the

Magistrate was merely gathering the material on the basis of which he will

decide whether aprima facie case is made out for taking cognizance of

the offence or not” (Paragraph 11).

D)       “It is wrong to contend that the Magistrate has taken cognizance of the

case even on 18.5.2007 when the Magistrate has recorded the statement

of complainant/respondent in part and even when the Magistrate has not

applied his judicial mind” (Paragraph 16).

E)       “Even though the order dated 18-5-2007 reads “cognizance taken under

Section 200 Cr.P.C.”,the same is not grounded in reality and actual

cognizance was taken only later” (Paragraph 16).

2. For the sake of argument we will assume that it is permissible to allow amendment of the averments in a complaint so long as the amendment does not change the character of the original complaint. Even then, what was the need or scope for examining the question as to whether cognizance of the offence was or was not taken ? If as a matter of fact the amendment sought is one which can be allowed since it does not change the foundation of the case as originally pleaded, can it not be allowed even after cognizance of the offence has been taken? Was not the enquiry regarding the factum and the stage of taking cognizance of the offences, an avoidable exercise?

3. Now let us examine the soundness of the propositions of law/observations referred to above. Although the learned Judges have adverted to the binding and oft quoted passages from the decisions of the Apex Court itself, such asR.R.Chari v. State of Uttar Pradesh (1951 SCR 312), Jamuna Singh & Ors. v. Bhadai Sah ((1964) 5 SCR 37), Nirmaljit Singh Hoon v. State of West Bengal & Anr. ((1973) 3 SCC 753), Devarapally Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors. (AIR 1976 SC1072); C.R.E.F. Finance Ltd v.Shree Shanthi Hornes (P) Ltd. & Anr. ( (2005) 7SCC 467), S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors. ((2008 (2) KLT SN 64 (C.No.78) SC = (2008) 2 SCC 492,) and Subrahmaniam Swamy v. Manmohan Singh & Anr.( (2012 (1) KLT SN 79 (C.No. 90) SC = (2012) 3 SCC 64), it is respectfully submitted that the essence of the ratio decidendi in those decisions has either been missed or conveniently sculled over by the learned Judges unmindful of the resultant incertitude and confusion. The settled position has been unsettled and chaos has been injected into the consistent, stable and immutable situation. The law, as crystallised through the various rulings of the Apex Court, is very clear on the point. If the Magistrate applies his mind for the purpose of proceeding under Section 200 and the subsequent sections of Chapter XV of Cr.P.C. then he can be said to have taken cognizance of the offences as made out in the complaint. But, if the Magistrate applies his mind not for the above purpose, but for taking action of some other kind, eg. ordering investigation under Section 156 (3) Cr.P.C. or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

4. The above proposition of law laid down by Justice Das Gupta of the Culcutta High Court in Superintendent and Remembrances of Legal Affairs, West Bengal v.Abani Kumar Banerji (AIR 1950 Cal. 437)was quoted with approval by the three - Judge Bench of the Apex Court in R.R. Chari (supra) and the other decisions adverted to by the learned Judges in the said decision of questionable authority. The decision inDevarapally Lakshminarayana Reddy (supra) was also rendered by a three - Judge Bench, Another three - Judge Bench of the Supreme Court inGopal Das Sindhi v. State of Assam(AIR 1961 SC 986) also reiterated the above legal position. One more decision which has affirmed the above legal position but which was not adverted to by the learned Judges, is Narayanadas Bhagwandas Madhavadas v. State of West Bengal(AIR 1959 SC 1118). The distinction between Chapter XII Cr.P.C. dealing with the pre-cognizance stage and Chapter XV Cr.P.C. dealing with post-cognizance stage, was succinctly delineated by the Supreme Court in Tula Ram v. Kishor Singh ((1977) 4 SCC 459). The judicial act of taking cognizance of the offence should not be confused with the subsequent act of issuing process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint or Police report or in the other information. The issue of process is at a subsequent stage. (Vide C.R.E.F. Finance Ltd v. Shree Shanthi Homes (P) Ltd & Anr.((2005) 7 SCC 467) and State of Karnataka v. Pastor P. Rajan ((2006) 6 SCC 728). (See in this connection the illuminating article authored by Advocate Sri. M.A. Rashid titled “Anil Kumar’s case(2013) 10 SCC 705 violates binding precedents”)

5. Thus, if the Magistrate after applying his judicial mind to the avernments in the complaint decides to record the sworn statement of the complainant under Section 200 CrPC (i.e. decides to proceed under Chapter XV Cr.P.C.) he can legitimately be said to have taken cognizance of the offence. Even the actual recording of the sworn statement under Section 200 Cr.P.C.. is not necessary. For instance, we will take a hypothetical situation:

After applying his judicial mind to the factual matrix recited in the complaint the Magistrate records the following in the “proceedings sheet” at 5 pm.-

“Complainant present. For want of time, the case is adjourned to tomorrow for recording the sworn statement of the complainant and his witnesses, if any”.

6. Here the Magistrate has decided to proceed under Chapter XV Cr.P.C. Hence the Magistrate can legitimately be said to have taken cognizance of the offence. He cannot thereafter retrace his steps back to the pre-cognizance stage and forward the complaint to the Police under Section 156(3) Cr.P.C. (See Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC) = (2004) 7 SCC 338).

 I am, therefore, with due respect, of the considered opinion that the two - judge Bench in Sukumar’s casewas wrong in laying down the propositions of law marked as A to E in paragraph 1 above and they tend to confuse, if not mislead, the entire hierarchy of courts particularly the Magistrates in the whole nation. The said verdict deserves to be over-ruled at the earliest.

Rule Only Observed In Breach

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

Order XX Rule (1) of the Code of Civil Procedure, a Code, once upon a time, considered the Bible for trial court lawyers, reads as follows:-

“1. Judgment when pronounced -- (1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.”

This is affirmed in Rule 180 of the Civil Rules of Practice, Kerala, which reads as follows:

“Date of pronouncing judgment:-- Unless the Court pronounces judgment immediately after the conclusion of the hearing, the case shall be adjourned to a specified date for pronouncing judgment and judgment shall not be pronounced on any day to which the case does not stand adjourned for the purpose unless notice has been previously given to the pleaders” While Section 354 of the Code of Criminal Procedure does not prescribe any time limit, Rule 132 of the Criminal Rules of Practice mandate recording of reasons for delay.

Who observes the above provisions these days? None at all. No judgment either in the High Court or in any one of the courts in Kerala is pronounced within the time stipulated by the salutary statutory provisions. The rule is breached every time often delaying the judgments for years together particularly in the High Court. You may feel I am exaggerating when I say that some judgments are pending for more than four and half years after arguments are heard. An adamantine truth all the same. In one of the cases a distraught mother whose daughter was suspected to be murdered in a Lady’s Hostel and who had got an order for enquiry by the Central Bureau of Investigation from the High Court, had to stage a silent protest along with her women friends with their mouths covered by black clothes. Itimmediately yielded results. The judgment was immediately rendered and a copy furnished.

Do the dispensers of justice expect every litigant to resort to such exfoliating tactics? If they do, it will indeed be an unfortunate day for the entire judiciary in the country as the same survives still as the last hope of the common man, whom all other institutions have wholly failed. Why are judgments so much delayed? Long arguments? Inadequacy? Overload of work? Indifference or lack of commitment? It can be anyone of them but all equally unsupportable and wholly unjustifiable. Anil Rai rendered long back (2001) is the law of the land under Article 141 of the Constitution of India. Yet that law is also breached showing disrespect to the highest court of the country.

There are two branches of criminal law, the contours of which are by now far too well settled not warranting time consuming adjudications. They are applications for bail and petitions under Section 482 of the Code of Criminal Procedure. The Apex Court has authoritatively spoken on every facet of those two, by series of decisions. Yet applications for bail are held over for days together often leading to unjust and continued incarceration and threat of imminent loss of freedom to many. How can this be justified in a democratic country where Articles 21 and 22 proclaim the prime importance of individual freedom along with Article 19 of the Constitution of India? Even those who were not initiated into practice on the criminal side will find no difficulty in quick disposal of applications for bail and miscellaneous petitions under Section 482 of the Code of Criminal Procedure.

This should not happen in a Court where there are Judges who commanded large and lucrative practice in the past in all branches of law after abrilliant academic career. [See journal section of Kerala Law Times] One should not however fail to respectfully and gratefully acknowledge that majority of our Judges do pronounce promptly judgments with the sense of urgency needed. This therefore, is a lachrymose lament.

Why should there be an excruciating and yawning gap between close of arguments and pronouncing judgments and providing copies of the judgments to the ordinary litigants? Lawyers throughout the State and those who run an institution which should be the best managed public institution of the State should ponder over this matter and take appropriate measures. Of course without delay.

Public Service Commission - Some Lines of Thought

(By O.V. Radhakrishnan, Advocate, Ernakulam)

Public services under a democratic system of Government hold a pivotal position. Our Constitution has adopted the working of the British Civil Service under open competitive examination and avoided the spoils system in America. The Public Service Commission, under our Constitution, is an advisory and consultative body. It is legally independent, but its powers depend upon the terms of the statute. Expand a little, it cannot exercise powers that are not specifically conferred on it and cannot breach any statutory barricade. The Commission is powerless to discharge its constitutional obligations in respect of services that are not brought within its purview by legislative wand or executive fiat.

Art.320(1) refers to "appointments to the Services of the Union and the Services of the State" and the proviso to Art.320(3) refers to "services and posts in connection with the affairs of the Union and to the services and posts in connection with the affairs of the State". The expression "Services of the Union and Services of the State" would embrace services under all the departments of the Government and the Services constituted by the Union of India and the State Governments. Art.321 of the Constitution of India empower the Parliament or the Legislature of the State as the case may be, to provide for the exercise of additional functions by the Union Public Service Commission or the State Public Service Commission as respects the services of the Union or the State and also as respects the services of any Local Authority or other body corporate constituted by law or of any Public Institution. Efficient functioning of the Government depends upon the efficiency of the personnel working for and under the Government. Efficiency demands proficiency and proficiency is a variable quotient of merit and suitability of candidates for appointments to various departments. The Commissions have been set up with aplomb and assurance as an independent body insulated against political, governmental and other authorisation influences and pressures. The job seekers, the Government and the general public expect a rational and reasonable procedure and process of selection for finding out suitable and meritorious candidates for appropriate posts in various public services.

The constitutional task assigned to the Commission is to conduct examinations for appointments to the services of the Union and the services of the State respectively under Art.320(1) of the Constitution of India. Art.320(3) provides that Public Service Commission shall be consulted in respect of all matters falling under sub-clauses (a) to (e) of that Clause that do not relate to selection and recruitment to services under the Union or the State. There is thus a clear dichotomy between clause (1) and clause (3) of Art.320. Consultation contemplated under clause 3 does not mean concurrence. The omission or irregularity in making consultation is not justifiable either. It is settled that in default of consultation, the action of the Government would not become inoperative and void. Nonetheless, consultation would be mandatory when the word 'shall' is used in a Rule or Regulation made by the Government.   

Now, let us disabuse our mind of certain misgivings associated with the powers of the Commission in regard to the conduct of examinations in the exercise of the power under Art.320(1) of the Constitution of India. Art.320(1) or for that matter any of the provisions of the Constitution does not lay down that all appointments to the services of the Union or the State shall be made only on the advice of the Public Service Commission. The power and authority of the Commission to hold examinations for appointment to the services of the Union or the State can be exercised only in respect of those 'services' those are brought within the purview of the Commission by law made by the appropriate Legislature or Rules made under the Proviso to Art.309 of the Constitution. The legislative heads are found in Entry 70, List I of Schedule VII and Entry 41, List II of Schedule VII. In the absence of any such law or rule requiring the Government to make first appointments to services of the Union and Services of the State on the advice of the Public Service Commission, the Commission is not called in to play. The power of the Government to include in or exclude any service from the purview of the Public Service Commission is unguided and unbridled. In this context, it is relevant to refer to R.3(a) of the Kerala State and Subordinate Service Rules, deemed to have been made under the Kerala Public Services Act which provides that all first appointments to the Service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases, by the appointing authority from a list of approved candidates prepared in the prescribed manner. The expression 'service' is defined in R.2(15) of the said Rules to mean 'a group of persons classified by the State Government as a State or Subordinate Service as the case may be'. Rr.7 and 8 of the Kerala Civil Services (Classification, Control and Appeal) Rules make the classifications. R.7 of the said Rules provides that the State Services shall consist of the Services included in Schedule I. R.8 provides that the Subordinate Services shall consist of the Services included in Schedule II. Therefore, the services that are not classified either as State Service or Subordinate Services fall outside the gamut of the Commission. To all other services, appointments would be made by the appointing authority from a list of approved candidates prepared in the prescribed manner.

In Canada, Australia, South Africa and certain other Countries appointments, promotions and transfers lie exclusively within the hands of the Public Service Commissions. The makers of our Constitution were very particular to provide means and measures to make the Public Service Commission independent and fearless by prescribing a cumbersome process for removal and also prohibiting holding of offices by members of the Commission on ceasing to be such members. Art.322 of the Constitution of India provides that the expenses of the Union or a State Public-Service Commission including any salaries, allowances and pensions payable to or in respect of the Members or staff of the Commission shall be charged on the Consolidated Fund of India or as the case may be, Consolidated Fund of the State. The above provisions are intended to ensure independence of the members of the Public Service Commissions so that they will not be susceptible to any allurement of employment, under the Government after expiry of their term of Office in the Commission and also to ensure independence from Governmental interferences.

After giving strong constitutional protective vestments, the Constitution-makers did not provide a clause in the Constitution that no appointments to Public Services under the Union or the State shall be made otherwise than on the advice of the Commission, which would achieve the avowed object in setting up the Commission. Needless to say, the 'Service' is the soul of administration and the Government can function well and make progress only if the Civil Services are efficient and organised and the Services are manned by persons who would be neither "after the smiles of the Government nor would be afraid of their frowns". It is essential that all the Civil Services are brought under the penumbra of the Public Service Commission for efficient and dynamic functioning of the Government.

It is Art.316 of the Constitution of India that deals with appointment and term of office of members of the Commission. The Chairman and other members of Public Service Commission shall be appointed in the case of the Union Commission or a Joint Commission, by the President and in the case of a State Commission, by the Governor of the State. It is provided thereunder that as nearly as may be, one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least 10 years either under the Government of India or under the Government of a State. It is a subliminal provision without indicating any level or cadre of the Government servants who are eligible to be appointed as Members. The Public Service Commission being the highest constitutional body set up for discharging constitutional duties under Art. 320 of the Constitution should have members who are academically highly qualified and occupying high echelons in service having profound experience and learning and also having familiarity with setting and procedures. They should be equipped with cutting-edge technological information and ability to grasp crucial matters in issue. The Governor, who is the appointing authority of the members of the Commission is acting on the advice of the Council of Ministers. The present day Governments are making appointments out of political, communal, regional and other considerations and in the absence of any provision in the Constitution prescribing definite eligibility criteria for appointment as members of the Commission, the power of appointment is likely to be abused. Moreover, Government Servants at the lower echelons of the services are generally bereft of administrative experience needed for the job of a member of the Public Service Commission. In like manner, no criteria whatsoever have been laid down in regard to non-officials to be appointed as members of the Commission. Therefore, the Government would be influenced by subjective factors and would be subjective in its approach. It is in the fitness of things that non-official members should be distinguished Jurists and professionals with good academic background and administrative acumen. If a specific provision obligating the Government to make appointment of such erudite persons of the Society is provided in the Constitution, the power can no longer remain licentious. To put it differently, prescription of requisite qualifications and eligibility conditions would act as a damper upon the propensity for deviant conduct.

Under Art.318 of the Constitution, power is given to make regulations as to conditions of service of members and staff of the Commission. In exercise of the power under Art.318, the Governor of Kerala has made the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957. It only deals with composition, conditions of service, etc., of the members of the Commission and its staff and the qualifications for appointment of members of the Commission remain undefined.

Employment under the State and under the Public Sector Undertakings is national wealth and public property. Recruitment to the public services must be transparent and above suspicion. The happiness and well-being of the people depend on competent, efficient and incorruptible officials devoted to the public good - A service which does comport with the known pattern of a responsible Government bound by rule of law.