THE spoils system came into vogue in India soon after independence. The bad habits set by the Congress were adopted by all the opposition parties which came to power at the centre and in the states.

But they exercised certain restraint. There were limits which they did not cross. It was left to the government headed by Narendra Modi to accomplish that.

There was a massive dismissal of governors in the states and their replacement by Bharatiya Janata Party men and undermining of autonomous statutory organisations and educational institutions by appointing political favourites. It was a systematic purge, of the kind practised in totalitarian countries.

The Indian Council of Historical Research felt the effects when it was reconstituted in Feb 24, 2015, with 18 fresh appointees including office-bearers of the Rashtriya Swayam­sevak Sangh-backed Akhil Bharatiya Itihas Sankalan Yojana.

Baldev Sharma was made chairperson of the National Book Trust on March 3, 2015. He was once editor of RSS organ Panchjanya. On June 24, 2015, the Central Advisory Board of Education inducted yoga teachers and Sanskrit scholars.

BJP is in the business of appointing political favourites.

Even Nobel laureate Amartya Sen had to step down from the chancellorship of the Nalanda University. He wrote in The New York Review of Books: “Nothing in this scale of interference has happened before. Every institution where the government has a formal role is being converted into one where the government has a substantial role.”

The head of the Indian Council of Cultural Relations, Lokesh Chandra, appointed by the Modi government, said that “from a practical point of view [Modi] supersedes Mahatma [Gandhi]” as “a reincarnation of God”.

Can there be any constitutional checks on this malpractice? The framers of India’s constitution proposed to append to it schedules and instruments of instructions to guide the president and the governors. The proposal was unwisely dropped shortly before the constitution was adopted.

Meanwhile, the constitutional adviser to the constituent assembly Sir B.N. Rau had framed a draft instrument to guide the president.

It envisaged the establishment of an advisory board elected by both houses of parliament “in accordance with the system of proportional representation by means of the single transferable vote for the purpose of advising the president in the matter of making certain appointments under this constitution and shall take all necessary steps for the due constitution of such board as soon as may be after the commencement of this constitution.”

This applied to all offices under the union or a state other than that of a governor. The leader of the opposition was to be an ex-officio member of the board.

Consultation with the board was mandatory for the appointment of judges of the supreme court and the high courts, the auditor-general of India, members of the Union Public Service Commission and even ambassadors.

If the board’s advice is rejected, it could ask the president to “cause the record of their dissent from the decision taken by the president and the reasons thereof to be laid before each house of parliament together with a memorandum explaining the reasons for non-acceptance of such recommendation.”

If the proposal had been adopted, the crises over the appointment of judges of the supreme court and the high courts would not have arisen. It led to more than one case decided by the supreme court; none too correctly. That includes the latest one by five judges on Oct 16, 2015.

Sir B.N. Rau’s proposal stood not a chance for adoption by the politicians. But the idea that underlay it is of continuing relevance — depoliticisation of important appointments.

The rampant abuse had its impact on judicial minds. Two of the five judges wondered how a government which could make the kind of appointments which the present one did could be trusted with unfettered powers to make judicial appointments.

Justice Jagdish Singh Khehar pointedly said: “It is necessary to appreciate that the constitution does not envisage the ‘spoils system’ (also known as the ‘patronage system’) wherein the political party which wins an election gives government positions to its supporters, friends and relatives as a reward for working towards victory and as an incentive to keep the party in power.” Justice A.K. Goel made similar remarks.

Observations like these serve as the foundation for the evolution of case law on the subject later. If distribution of state largesse for partisan ends can be controlled by the courts why not appointments to high posts?

True, a certain margin of discretion is fair. But surely an appointment which is manifestly demonstrably improper can be quashed. There is a writ meant for precisely such a purpose — the writ of quo warranto.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, August 13th, 2016