SIBY  MATHEW – IN MEMORIAM

(By Hon'ble Justice K. Sukumaran, Former Judge, High Court of Kerala)

One more life is gone. One more leaf is torn- from the unbound Law Times of unfading Memory shelves.

The connection with Law Times, for me has been far more emotional and sentimental than with yet another legal publication.

In the infancy of my profession, the local law used to be learnt from the local law reports. The official Law reports-of Travancore and Cochin, (the States which got integrated just before I graduated in Law), -and the unofficial Law Journal and Law times. Travancore Law Times had a special appeal. It had a rare flare and flavor.

It was in its columns that one could come across really learned disquisitions on legal topics. Dr. John Mathai, (First Finance Minister of Independent India) T.K.Velupillai, (later Sadasya Thilakam, and compiler of the Travancore State Manual), Justices Chatfield, Venkita Rao, and others. They wrote and spoke . Their wisdom was made available to the curious by TRAVANCORE  LAW  TIMES.

Additionally, and more importantly, a western view was also available. The latest cases decided by English Courts were neatly summarized. 

The winds of change had started blowing across the western coast of India. Pandit Nehru who discovered India, remarked that while many parts of Europe were still groping in the dark, light was visible in the southern States of India. ‘This’ was, in no small measure, due to the contribution of the Travancore Law Times. That glorious tradition was continued after the integration of the two princely States of Travancore and Cochin, in 1949. The continuation of Travancore Law Times was imaginative. 

When the official law report was rechristened as Travancore –Cochin Law Reports, TLT got transmuted as KERALA  LAW  TIMES.

Mr. M.C. Mathew steered clear, the little skiff then, with sincerity and dedication. Bashful by nature, he mingled with all, concealing a latent sense of humour. There was intimate friendship between M.C. Mathew and the legal firm Menon and Pai, with which I was associated, 1954 onwards. Both G.B.Pai and P. Govindan Nair were members of the Editorial Committee of KLT. I too had an indirect link with KLT.

G.B.Pai and P.Govindan Nair were Reporters of All India Reporter, thought of for covering the cases of High Court. Both were very busy, professionally and otherwise.

K.V.R Shenoi was the de facto Reporter. 

Two juniors joined the firm in 1954 – this writer and V. Desikan. There was a sub-delegation of the reporting work. We did the work with all the enthusiasm of a fresh broom. Shenoi shared a professional secret to reduce the intellectual burden. ‘Pick up from the bundle of typed out judgments, those reported in KLT. They are bound to be reportable.’ It invariably worked. Trouble arose only when the competitor Law Reporter-the Dominion Law Reports reported a judgment outside KLT! The publication registered phenomenal prosperity and international reputation thanks, to the association built up by involving  jurists of international repute in the operational side.

A Judgment of mine, dealt with the nocturnal movements of the heads of the matriarchal families crossing each other with a country torch in hand. I referred to the legally ingenious ways in which Brahmin fathers avoided payment of maintenance to their children. This attracted the attention of the American Law Researcher Louis Caroll Street. Her findings in the research of a long period, tallied with my observations - She wrote to me. Such International intercourse of ideas was fecilitated by KERAL A LAW  TIMES. 

The old volumes of the TLT's remain in the shelves, with papers brittle but preserving the unbreakable thoughts, reminding one of the rare pieces of the Viking Museum in  Stockholm , with a significant warning: ‘Don’t Touch it. Preserve it for the future generations.’

Siby, with his frail frame and unfading smile will not fade out from memory lane. Two edifices face each other in the eastern part of the Old Ram Mohan Palace. The High Court of Kerala and the Kerala Law Times. One produces the law , the other disseminates it!

The height Siby reached and kept was not attained by sudden flight.  He was initially a reporter (in 1974) and then in the editorial board (1978). In the year 1979 was Assistant Editor; and in 1985 when M. C. Mathew left his busy seat opting for membership in the Editorial Committee, the son Siby  occupied it. He managed it with imagination and innovation. Ailment did not dim his vision nor depress his spirits.

It is good that the tradition is carried on by  graceful faces and capable hands, a symbol of empowered women. 

MILD IN MANNERS; STRONG IN ACTIVITIES

(By Shri. Kaleeswaram Raj, Advocate, High Court of Kerala)

Shri.Siby Mathew now belongs to the extra-terrestrial jurisdiction.  His departure has created a big vacuum in the legal world especially in the significant areas of law reporting and legal journalism.  Press outside is often termed as ‘an institutionalized anarchy’.  But legal journalism belongs to quite an opposite category. It is bound to be a systemized institution. KLT illustrates this point. After its founder editor Shri.M.C.Mathew, it was Shri. Siby Mathew who carried on the legacy. Even while being conventional, he was remarkably radical.  Such a blend is rarely seen in the legal press.

An institution cannot develop on flattery and pretentions.  Dissent is the soul of judicial democracy as well.  Shri. D Y.Chandrachud, the Hon’ble Chief Justice of the Allahabad High Court, in a recent speech at Kochi indicated about the significance of dialogic truth that is peculiar to legal discourse and process of adjudication.  It applies to institutional criticism as well.  Siby Mathew, a man soft and soft spoken, was the most dynamic editor in Kerala’s Legal journalism.  Law reporting is not merely a matter of res judicata and estoppel.  It is bound to be a mirror that reflects the indications of finger points and the echo of the most outspoken criticism.  Sri. Siby Mathew was a fearless editor.   He valued the courage of the innocent than the commands of the powerful. He valued the institution rather than individuals. He always believed   that the judges too are not immune to criticism. However, he could distinguish between fair criticism and personal attacks and he never favoured the latter. Siby Mathew was concerned with the content –whether it is an article or judgment. In his private talks he was usually to say about the ritualism in reference speech and its consequent futility.  Whenever I was confronted with the pettiness of those in power, I had a soul searching experience through my writings in KLT.  For that I should thank this great editor in the form of a simple man.  

He was also a good lawyer. He focused on substance rather than on form. When the court room argument has lost its rhetoric relevance and the process is more conversational, lawyers like Siby Mathew set a good example to follow. He was not individually ambitious.  He was just doing his dharma and karma. 

KLT has a rich heritage to be taken ahead.  My friends at KLT will be motivated and rejuvenated even with a slightest remembrance about the departed soul.

Mutuality of Law and Culture - I

(By Dr.K.B. Mohamedkutty, Senior Advocate and Former Dean, Faculty of Law, Calicut University)

We speak out on culture parrot like. Sometimes we grumble at the poverty of culture in others we dislike or who dislike us. We witness plentiful debates on culture of art, literature, music, poetry and politics and so on, as culture stems from a variety of its manifestations. Law is one of them. However, its role in the development of culture is seldom appreciated. The culture of a country is reflected in its law and justice system emerging from its socio-economic backgrounds. Naturally cultural norms vary from country to country. The law and justice-system has no greater light than it absorbs from the light of its social life pattern. But the law has responsibility to see that the moon of culture remains in the orbit to give us light so that the dawn shall not be submerged into darkness. Such responsibility of the law, however, is more than that of art, literature and other forms of culture.

For learning the cultural status of a people it is enough if we examine their system of law and justice. This is because law is culture itself in solid form moulded from social life and interaction of people. In every sphere of life man is permitted by law to do or abstain from doing certain things. Such prohibition or permission indicates certain cultural norms at certain point of time in the history of man. Renowned jurists and thinkers have expressed the view that law permeates ethos of a people as it flows from the soul of the people, just like national poetry. The law grows and spreads like language, religion, ethical norms etc. On analysis of history, it is revealed that the law has contributed immensely to the culture of man. It is rightly said that law is culture specific. In order to learn the cultural traits of a society we trace firstly the life pattern through its art and literature. Much more important in this respect would be tracing the life pattern through the law, custom, and usage of the people. It is indisputable that for sustenance of culture, law and legal system contribute immensely. The laws constitute the autobiography of human life inasmuch as laws take in its ambit all matters of social life from the beginning till now.   An autobiography gives insight into the making of life and time of the person who writes it, though perhaps much of it is no longer of topical importance.

The question that comes uppermost in our mind is that if law is culture itself, how far law-making is a cultural endeavour ? It is axiomatic that law-making needs a fine political culture and vision, which must be reflected in the discussion on the floor of the Legislature. Political leaders and their followers must imbibe values of culture for effective functioning of the Legislature as well as the Executive in a democracy. Good temper and moderated expression are necessary attributes of Parliamentary culture. The legislators must learn in the process the impact of intellectual, economic, technological, social and cultural needs of the society. They must strive for solving issues facing the people within the framework of the law-and-justice machinery. But today politicians belittle themselves by cheap rhetoric on the floor of the Legislature and outside. They forget that law is culture and they are its makers. To our great disappointment, thousands of legislators are involved in serious criminal cases and some out of them are Parliamentarians. The recent judgment of the Indian Supreme Court declared that convicted law-makers for two or more years are disqualified to continue as members of the Legislature. But attempt was made to retain them in the Legislature by hurriedly navigating an Ordinance which did not materialise by a sudden turn of unexpected events. In another instance, perhaps exasperated beyond measure by the misuse of electoral process, the Supreme Court declared that the voters have the right to exercise the option of negative voting by which they could reject all candidates as unworthy of being elected, if they evaluate accordingly. This ruling empowers the voter in the context of the present-day abysmal demoralisation of political culture.

Let us examine how the relationship between the law and culture developed and how law engages people and nations for a better tomorrow. When we speak about culture, we mean basically the standard of thinking and behaviour of people in particular regions or times. Ever since man began to live as a social being and settle in places congenial for living, leaving aside his nomadic life, we find the starting point of culture on earth. In those pre-historic days there was, of course, no law in writing and yet some kind of control mechanism prevailed in the society for man’s safety and peace. Law became later a crown on his head or a beacon light in darkness.  A glance through the major legal systems of the world convinces us that law portraits the way of life of the people in their respective times and in this process it outlines a cultural map of people’s living. Man’s social relationship, sentiment, custom and life patterns are reflected in it.

Ancient  Connection

The history does not tell us the precise point of time at which man had chosen the path of culture. Nevertheless, some kind of a legal order might have emerged some six thousand years ago when culture began to kindle. We stop at that point of time as recorded history does not go beyond that period. The memory of history is short and limited to that point of time. In the Indus Civilization flourished some five thousand years ago some such legal order must have existed as it was necessary for growth and development. Jawaharlal Nehru in his Discovery of India quotes Prof. Childe’s observation about this wonderful civilization: “Indus civilization represents a very perfect adjustment of human life to a specific environment that can have only resulted from years of patient effort. And it has endured; it is already specifically Indian and forms the basis of modern Indian culture.” We can imagine that this could not have been achieved without orderliness and unity arising out of a legal system. Even in those ancient days India had developed intimate contact with other cultures of the world — the Persians, the Egyptians, the Greek, the Chinese, the Arabs before the advent of Islam, the Central Asians etc. When we look at the ancient forts, palaces and sculptures, every stone in them tells us the glory of ancient India. A glance through history convinces us that numerous and glittering civilizations of the past in various parts of the world faded away and yet the Indian civilization survived all onslaughts against it only because of its cultural supremacy and superior vitality. Arthasastra (around B.C. 400) testifies this fact. Law must have assisted this process. Hill produce from South India and blankets, skins and horses from North India fetched ancient markets beyond India. Goods manufactured included things of beauty and value such as silk, woolens, cotton, textiles etc. Mining of precious stones and metals, spinning and weaving were some of the occupations. The Indian weapons of war attracted foreign markets. Carpentry and cane work done in villages. Perfumes and medicines were exported. Long before such involvement in trade and trade- related norms of law, in the epics of India we find golden thread of law. In Mahabharata (B.C. 3000-1000), which contains over one lakhs couplets, we find wholesome cannons of law and ethics. The Mahabharata says that the safeguards of Merchant’s Guilds were not allowed to be superseded by king’s law. This is long before the modern trade unions came into being The Bhagavad Gita, a poem of seven hundred verses, in Mahabharata, is highly meaningful to life of every man and highly philosophical. It is a call to action and to eschew slumbering mood in order to meet the obligations and duties of life. According to great thinkers like Tilak, Aurobindo Ghosh, Gandhiji, Rajaji and others the philosophy of Bhagavad Gita is to interpret Dharma and how it harmonises the path of intellect, the path of action and the path of faith. For a perfect legal order all these are most essential. Law has a philosophical content and a metaphysical content in it in the form of ‘equity’, ‘good conscience’ and ‘custom’ embedded in personal law.

Even principle of tax law is projected in Mahabharatha. Adam Smith and his Wealth of Nations laid down principles of Economics and Taxation much later. A passage from Udyoga Parva of Mahabharata says: “Just as the bee draws honey from flowers leaving them uninjured, the king should take wealth from men without harming them”. It was not only economic law that was vibrant. The International Law too was practiced in puranic days as is evident from Ramayana (B.C. 1500-300) which contains 24000 couplets. To cite an example, Ravana ordered to kill Hanuman for embarrassing the Lankans by his deeds against them. But the order to kill him could not be executed as Hanuman had the status of an Ambassador (Duta) having sovereign immunity from punishment. Vibhishana, the legal advisor of Ravana, advised accordingly. It was complied with. Mahabharatha and Ramayana are the twin epics which are understood like Illiad even by the unlettered people of India. The behaviour and life’s philosophy of the Indians are tremendously influenced by these epics. The concept of International Law in Indian epics has now become an attraction of students from abroad. The students of Universities in China are taught on lessons of human values from Ramayana.   Valmiki’s text is enchanting and enlightening. It currently attracts foreign students of international politics.

The Vedas (B.C. 2500-2000), Upanishads (BC 1000-500 BC) and Manusmrithi (B.C. 1000-500) enunciated the principles of Dharma of the Law. Dharma, like equity, is higher form of justice. Compassion is the thematic thrust of Budhism, which spread far beyond Indian sub continent. Budhism is an off-shoot of Hinduism and stands for peace and harmony. The Dharma jurisprudence is more advanced than the Anglo-Saxon British model which came into being much later. In Raghuvamsa, Kalidasa (around A.C.500 too) refers to fine principles of taxation law. According to him: “It was for the welfare of the subjects alone that King collected taxes from them. In this he resembles the sun which draws up water or vapor from the earth only to pour it thousand fold in the shape of rain”.

Pre-Aryan  and  Dravidian  Legal  order

The pre-Aryan civilization which appeared about three millennia before Jesus Christ had its legal order. In the life of Dravidians South (around B.C.2700 -1700) there existed a legal order underlying peace and stability. Magasthenes, the Ambassador in the Court of Pataliputhra (Modern Patna) in the days of Chandragupta Mouria wrote that all inhabits were free and laws were simple. Charaka Maharshi (around B.C.200), the founder of Ayurveda, tells us the characteristics of Uttamapurusha (cultured man) in unmistakable terms. The Tamil literary treasure, Thirukural, the poetic mouth piece of all time, is a treasure of moral law during the beginning of Christian era. Gover’s translation of Thirukural gives the concept of patience in the following lines:

‘How good are they who bear with scorn

And think not to return it

They are like the earth that giveth corn

To those who dig and burn it.”

We find law’s wonderful influence in Talmud, Bible, Quran, and other religious texts and classics like Illiard, Oddyssy etc. Prof. Basham in his famous work, TV Cultural History of India’ observes that no land on earth had such a long cultural continuity as India. More ancient civilizations like Egypt and Iraq were virtually forgotten by their people.   In India Vedic hymn is in use even today.   Chinese and Greek traditions are only next to Indian tradition.” Sir Wiliam Jones observed that the Sanskrit language is more perfect than the Greek more copious than the Latin and more exquisitely refined than either. It had its contributions to law as well because of its interaction with both scholars and the ordinary people. University of Takshasila was a pre-Budha university. ; Banaras was a centre of learning though not a university, in the days of Budha (600 B.C. ) Much later, several centers of learning sprang up like Nalanda which existed in 500 A.D as a great centre of culture. Scholars from far and wide came to such centers in search of knowledge. Interestingly, Law was a subject of study there along with religion, history and linguistics, whilst Oxford was established only in A.D. 1167 and Cambridge in AD.1209. Kalidasa, according to Jawaharlal Nehru, spoke about things which Europe did not learn until the 19th century.

After the decline and fall of Mughal Empire, we find the spreading of colonial culture and the growth of western ideas replacing gradually the past culture and tradition of India. During such period, the Indian culture became like a tree which had strong and deep roots in the soil which began to decay for want of nourishment from its soil. A mountain torrent of western culture has washed some of the roots of Indian tradition and law’s growth was diverted to a different direction. The other aspects of law and culture are examined in the next part.

Doling out Appointments of Government  Pleaders and  Public

Prosecutors on Political Basis-an unlabelled Spoils System Practice

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala) 

A Judicial whistle was blown by Mr. Justice Harun-Ul-Rasheed in Crl. M.A No.4811 of 2013 in Unnumbered Criminal Appeal of 2013 while considering the condonation of delay in filing the Criminal Appeal observing that there is a battalion of Government Pleaders/ Prosecutors for the Government before the High Court and the cases are not being prosecuted in proper manner and in proper time. Presently, it is the focus of debates among the legal fraternity. The learned Judge further observed that “propriety requires handling of cases seriously and vigilantly”. Incidentally, the learned Judge also observed that “Our experience and facts reveal that professional hands with experience in coducting cases in High Court are not preferred in the selection and majority are selected out of political and other considerations. This Court hope that the Government will give proper attention in the matter of handling cases in the High Court”. Feeling aggrieved by the above observations, 107 Government Pleaders/ Prosecutors filed Criminal Miscellaneous Application No. 6823 of 2013 in Crl. M.A No. 4811 of 2013 in Unnumbered Criminal Appeal of 2013 under Section 482 of the Code of Criminal Procedure to recall/expunge the observations made by the learned Judge which did not meet with success. The gravamen of the attack against the observations made by the Court is that it is upto the pleasure of the Government to decide the efficiency of Counsel appointed by it and that the High Court is not justified in advising the Government in the matter of choice of counsel since it is beyond the scope of judicial decision. 

In the above context, it is necessary to consider as to whether the Court has power and jurisdiction to alert the Government that the appointments of Government Pleaders and Public Prosecutors are awfully inadequate being made on political considerations.  It is incontestable that inadequacy of Government Pleaders and Public Prosecutors would affect the conduct of Government cases and would badly affect the administration of justice. In that event, the ultimate sufferer is the general public and tax payers. 

A Government Pleader holds a ‘public office’. In the decision in Mundrika Prasad Sinha v. State of Bihar (AIR 1979 SC 1871), the nature of appointment of Government Pleaders came up for consideration and it was said that the office of a Government Pleader holds  a ‘public office’. Krishna Iyer J. in that decision also pointed out that “The Government under our constitution shall not play with Law Officers on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. Afterall , a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.” 

In Ramachandran v.  Alagiriswami (AIR 1961 Mad. 450), a Division Bench of Madras High Court expressed the view that  “.....the duties of the Government Pleader are the duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which Government Pleader discharges his duties because, if he handles his cases badly they have ultimately to foot the bill”. The above passage has been quoted with approval by the Apex Court in Mundrika Prasad’s case. The Hon’ble Supreme Court hastened to add that the Government Pleader is more than an Advocate for a litigant and he holds a public office. 

In the decision in Mukul Dalal v. Union of India ((1988) 3 SCC 144)  the Apex Court held that “Office of the Public Prosecutor is a public one” and “the primacy given to the Public Prosecutor under the Scheme of the Code has a social purpose. In the decision in Srilekha Vidhyarthi v. State of U.P. (AIR 1991 SC 537),  the Hon’ble Supreme Court has refined and resolved the concept in the context of Section 321 of Code of Criminal Procedure permitting withdrawal of case by Public Prosecutor in charge of the case with the consent of the court, the Public Prosecutor is entrusted with such power in the interest of administration of justice and such power flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office  which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.

The Apex Court emphasised the need for making appointments of Government Pleaders and Public Prosecutors on merit and renewal of appointments on objective assessment of suitability of the person and the requirement to maintain character roll for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer. Suitability of the appointee being the prime criterion for such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved, which even otherwise should be the paramount consideration in the appointment of Government Pleaders aimed at promoting public interest. All Government counsel are paid remuneration out of the Public exchequer and there is a clear public element attaching to the ‘Office’ or ‘Post’ of Government Pleader.

The appointments of Government Pleaders are governed by the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978. Rule 4 of the said Rules relates to method of appointment of Government Law Officers in the High Court and Rule 5 lays down the qualifications for appointment as Government Law Officers in the High Court. Rule 4 provides that appointment as Public Prosecutor, Senior Government Pleader, Government Pleader and Liaison Officer from a panel of names of Advocates furnished by the Advocate General. Appointment as Public Prosecutor shall be made in consultation with the High Court: Provided that in furnishing the panel of names, the Advocate General shall include atleast two names of Scheduled Caste/Scheduled Tribe communities for every ten vacancies reported. Rule 5 prescribes the qualifications for appointment as Government Law Officers in the High Court which reads as follows:- (1) No person shall be included in the panel furnished by the Advocate General for appointment as Government Law Officer in the High Court unless such person.- (a) in the case of Public Prosecutor or Senior Government Pleader or Liaison Officer has for at least ten years been an advocate of a High Court and has actually practised in the High Court for at least 5 years. (b) in the case of a Government Pleader has for at least seven years been an Advocate of a High Court and has actually practised in the High Court for at least 3 years: Provided that a member of Scheduled Caste or Scheduled Tribe shall be eligible to be included in the panel for appointment as a Government Pleader or Liaison Officer if he has for at least five years been an Advocate of a High Court and has actually practised in the High Court for at least 3 years. Explanation:- In computing the standing at the bar for the purposes of coming under clauses (a) and (b) above, the persons should have actually practised in the High Court for a period of 5 years to be considered for Public Prosecutor or Senior Government Pleader or Liaison Officer and 3 years in the High Court to be considered for appointment as Government Pleader. (2) Only those persons, who, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents are, in the opinion of the Advocate General, fit to be appointed, shall be included in the panel. 

Rule 4 of the Rules, 1978 thus cast a statutory duty on the Advocate General to include names of Advocates in the panel after making an objective assessment of suitability as the suitability of the appointee is the prime criterion for appointment. While including the names in the panel, the Advocate General is required to form an opinion, having regard to their qualifications, experience, integrity, reliability, reputation and character and antecedents, that the names of Advocates included in the panel are fit to be appointed as Government Pleaders. The opinion of the Advocate General is formed on the basis of information available to the Advocate General. It is the duty and statutory obligation on the part of the Advocate General to exclude those advocates who are otherwise unfit and are guilty of rank incompetence without yielding to the political or other influence and pressure from any quarter. A Division Bench of the High Court of Kerala in George Varghese v. State of Kerala  (2002(4) KLT 263), recommended the learned Advocate General that one important aspect may be kept in view when names are sent for consideration for Government Law Officers. It is in public interest that Government Law Officers are selected only from amongst qualified and competent persons so that interest of the State and the Public is not prejudicially affected. 

In a recent decision in George v. State of Kerala  ( 2013(1) KLT 815) a Division Bench of the High Court of Kerala comprising Hon’ble Chief Justice Mrs. Justice Manjula Chellur and Hon’ble Mr. Justice K. Vinod Chandran it has been held that “We are also not convinced that there is any mandatory rule for reservation of Scheduled Caste and Scheduled Tribe Candidates in the appointments made as per the aforementioned rules and the State cannot be compelled to appoint Advocates who, according to the State, may not be fit to handle cases on their behalf. Primarily, the proviso to Rule 4 only mandates inclusion of atleast two names of Scheduled Caste/ Scheduled Tribe candidates for every ten vacancies reported.” What follows is that ‘fitness’ is the sole criterion for appointment as Government Pleaders and ‘fitness’ is justiciable. 

It is the will and executive responsibility of the Government to choose and appoint Government Pleaders purely on merit and it is wholly illogical to say that it is upto the pleasure of the Government to decide the efficiency of the Counsel and the Court is not justified in advising the Government in the matter of choice of Counsel as the judiciary cannot shut its eyes against the arbitrariness in the appointment of Government Pleaders jeopardising the administration of justice. The efficiency in conducting cases on behalf of the Government depends not on the number of Government Pleaders but on the competency of the Government Pleaders and advocacy makes an indispensable contribution to the maintenance of rule of law in a democratic country. 

To concede to the stand that the appointment of Government Pleaders and Prosecutors is well within the pleasure of the Government is to reintroduce ‘Spoils System’ prevailed in America which was denounced as corruption. The spoils system was criticised for decades and the spoils system notoriously known as ‘political patronage’ was done away with in America on realising that America fell far behind other nations in civil service standards of ability and rectitude. The experiment proved the merit system to be both functional and supportive.

In the territories of India ruled by British also a large chunk of jobs went to those who were faithful to the British rulers who were considered fit for serving British interest. However, the framers of the Constitution made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen under Articles 14 and 16(1) of the Constitution of India. Article 309 of the Constitution envisages enactment of laws by Parliament and the State Legislators for regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. The proviso to Article 309 empowers the President or the Governor of a State to make Rules regulating the recruitment and the conditions of service of persons appointed to such services and posts till the enactment of law by appropriate legislature. The appointment of Government Pleaders is necessarily to a post in connection with the affairs of the State and the selection and appointment of Government Pleaders are governed by Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 formulated in exercise of the power conferred under Section 2(i) of the Public Services Act, 1968. Therefore, the appointment of Government Pleaders and Public Prosecutors has to be done in accordance with the statutory rule on the basis of merit and the Government is not competent to make any unlawful departure from the mode of appointment or to disregard the qualifications and experience prescribed in the Rules on the basis of political or other considerations. Favouritism or arbitrariness in the selection and appointment of Government Pleaders would fall foul of the requirement of efficiency of judicial business offending Articles 14 and 16(1) of the Constitution. The observations made by the Court pointing out the drawbacks and deficiencies in the appointment of Government Pleaders with a view to improve the system cannot be attacked as falling outside the scope of the inherent power of the High Court. If and when a Government Pleader acts with unwarranted casualness, indifference or total lack of seriousness or senisivity is exhibited, the court cannot take the role of a mute spectator. The exercise performed by the Court is its obligation to ensure proper judicial functioning and to prevent failure of justice. To accede to the stand that the appointment of Government Pleaders and Public Prosecutors is within the pleasure of the Government, wide door would be opened to abuse of power and the rule of law would cease to operate.