While it is apparent that due process has been subverted to the advantage of a few by the political executive, it is equally true that there has been some politicisation of the civil service
Two recent events have focussed attention on the relationship between the political executive and public servants. At the international conference on corruption organised by the Central Bureau of Investigation on November 11, Prime Minister Manmohan Singh urged that if there was no evidence of wrong-doing, there should not be any presumption of criminality. He also said that Section 13 d (3) of the Prevention of Corruption Act, introduced when P. Chidambaram was the Minister for Personnel two decades ago, would be removed. This Section extends the concept of corruption to any loss to the government by the action of public servants.
On October 30, the Supreme Court of India, on a public interest litigation plea by several retired senior civil servants, ruled in favour of greater order and transparency in transfers and posting. It directed the formation of a Civil Services Board of senior civil servants to decide on transfers and postings and a fixed tenure for postings. It also directed civil servants not to accept oral orders from their superior officers or Ministers, and to ensure that the orders are reduced in writing before they are carried out.
The judgment has been welcomed by the media, the bureaucracy and those who deal with the government and its institutions. The reaction from the political executive has been muted and, from some quarters, negative, with one spokesman saying the power of transfers and postings should continue with the political executive. There have also been comments from think tanks that the judgment would be difficult to implement, given that the Central as well as State governments would be involved, and that the Supreme Court should not have ventured so deep into the realm of executive jurisdiction.
Behind these two events is the recognition of the development of a malaise that is affecting governance and the way the business of government is transacted. Even more deeply, there appears to be a debate between what is right and who is right.
The permanent civil services are a pre-Independence legacy. There was always to be a gap between administrators/implementers and politicians. The former were professionals who were expected to advise on policy, and implement the government’s programmes and projects. The relationship was one based on mutual trust and respect of one another’s role. Those of us who joined the services in the 1960s took this relationship for granted, and were able to function freely, with respect and close coordination with Ministers. This has changed since the 1980s. The growth of regional parties and the fragmentation of the national polity brought to power groups which had the short-term objective of retaining power, and lesser respect for established rules and regulations. There was increasing pressure on civil servants to do as they were told, under threat of transfer and administrative action. In some States, there was little respect for office or tenure, and officers lived in constant anxiety over the next transfer. The recent case of the suspension of a young officer in Uttar Pradesh, and actions against an officer in Haryana are visible examples of political highhandedness. Officers were given oral orders that were often not backed by rules. In the event of an investigation, the officers had to face culpability. In the last decade, the excesses have extended to several sectors that are now facing investigation and criminal action.
The Supreme Court judgment is a welcome reprieve that attempts to set the boundaries for political intervention in administration. The directions on written orders, fixity of tenure and the establishment of a Civil Services Board are based on the earlier recommendations of the Hota committee and the Administrative Reforms Commission reports of 2009. These recommendations were not implemented by the government, and the Supreme Court verdict draws upon them and directs implementation. However, it is not going to be easy to implement the instructions, for several reasons.
Disjoint in governance
First, there is a serious disjoint in governance between the political hierarchy and the administrative machinery. The 2G case, coal and mining scandals, the Commonwealth Games and other incidents have clearly demonstrated that there has been considerable erosion of fair processes in the last decade. Criminal investigations will determine where the malaise lies: but it is quite apparent that the subversion of due process to the advantage of a select few has originated at the level of the political executive. Only investigations will reveal whether the civil service participated in the wrong-doing. It is also clear that in several instances, rules have been flouted, earlier norms overturned, and protests marked on files ignored. There is now lack of trust and fear among senior bureaucrats, who feel they have no safety net against illegal action, and that they are victimised if they do not toe the political line.
The Prime Minister’s assertion at the anti-corruption seminar on November 11 that in effect, a loss to the government and the country does not necessarily constitute wrong-doing indicates the direction of future political decision-making. If this is the mindset, there is no way the Supreme Court judgment will change the behaviour or attitude of those in power. It is no surprise that a Congress spokesperson has reacted strongly to the judgment, and declared that transfers are a tool to control the bureaucracy.
Second, it is equally true that there has been some politicisation of the civil service. In several States, officers close to a regime are unwanted during the next regime. Such close political proximity is possible only through compromises in decision-making as well as in ethical standards. The politician may well turn to these instances to justify his position. There is also considerable corruption at the operating levels. Fixity of tenure in lucrative jobs, as promised by the court, is but a guarantee to continue to exploit the benefits of the position. It will become a double-edged sword. If there is collusion between the interests of the political executive and the civil service, the Supreme Court judgment will result in an increase in wrong-doing, not a curb on it. There is enough evidence at the lower levels of administration that this is true.
Third, there is the ultimate question of accountability. As long as wrong-doing goes unpunished, the politician will continue to believe that getting voted back to power is sufficient proof of innocence, and that the civil service should not be a bottleneck. Recent Supreme Court judgments on the Representation of the People Act as well as the close monitoring of 2G and other cases have shifted the focus to courts, and no political party is comfortable with that. We are faced with the ultimate question of whether, in a democracy, the rule of law can be interpreted in favour of those in power at a particular time. If yes, the Supreme Court judgment will have no effect.
The time is now ripe for a much more fundamental debate, on whether the rules of business that applied to a colonial regime are any longer relevant. Even in the United Kingdom, where these rules originated, they have been given up in favour of a joint decision-making process that makes the Minister in charge solely responsible for the actions. Watchdogs are effective and retribution is swift and deterrent. The vertical hierarchy of notes and orders prevalent in India shifts responsibility in a manner that makes accountability difficult — it is time to change that. If not, as predicted by Hamza Alawi two decades ago, the state would be under the control of the political and industrial class, aided, to some extent, by the bureaucracy, and all to the detriment of the nation and the citizens.
(S. Narayan is former Finance Secretary, Government of India.)