The bureaucracy can never be immune to political interference as long as bureaucrats are willing to twist and bend before politicians to get the postings of their choice

The Supreme Court’s recent move to set up a Civil Services Board for the management of babu promotions and emoluments, granting fixed tenure to them, and freeing them of the obligation to obey oral orders from the executive — though a boon to honest bureaucrats who are transferred frequently — has the potential to bring within its wake more harm than good. The Supreme Court has replaced the increasingly erratic and unresponsive executive power with the rule of the judiciary.

Government to blame

Serious issues with this judgment challenge the very core of democracy and that of Parliament’s legislative authority. The UPA government — which through incessant corruption has destroyed executive institutions — is to share the blame for this judicial enthusiasm. A society which evades its responsibility by thrusting upon the courts the nurture of its spirit will eventually cause its spirit to perish. By creating a governance vacuum, the UPA has voluntarily ceded its turf to the judiciary. It implies that an administrative policy paralysis suffered by the country in the hands of the present government has compelled the judiciary to go into matters pertaining to administrative reforms.

First, the Supreme Court has assumed itself to be superior to Parliament and is directing Parliament to enact new laws which seems to be violative of the fundamental principle of Separation of Powers. Although the court has used this power very rarely, it is not a valid argument for using it even once, because assuming another democratic wing’s characteristic power has serious consequences.

There is no clarity on how this petition was maintainable under Article 32. Article 32 is a judicial safeguard for the enforcement of fundamental rights. Administrative reforms, though abundantly desirable, cannot be classified as “fundamental rights” of a citizen, in a very basic application of constitutional law.

The petitioners — former Union Cabinet Secretary T.S.R. Subramanian, former Chief Election Commissioners T.S. Krishnamurthy and N. Gopalaswami, former Indian Ambassador to the U.S., Abid Hussain, former CBI Director Joginder Singh, former Manipur Governor Ved Prakash Marwah and 77 others — are a few individuals who claimed to know the exact mechanics that are most suitable for the functioning of the executive, in accordance with “public interest,” and asked the court to issue binding orders to the legislature to control the executive. So, fewer than 100 citizens — not legislative experts — essentially asked the judiciary to overreach into the domain of the executive. Are the four legs of a democracy not needed to be independent of one another any more? With due respect to the Supreme Court, by directing Parliament to make laws it is clearly undermining the legislative authority of Parliament.

On legal reasoning, the court has been ambiguous at the very least. The Bench has relied heavily on various Administrative Commission reports — the 2004 Hota Commitee on Civil Service Reforms, the 2008 Second Administrative Reforms Commission, the 1997 Conference of Chief Ministers on Effective and Responsive Administration and the 1968 All-India Service Conduct Rules. By merely reiterating the reports of government-appointed bodies and directing Parliament to enact a new law, the judiciary has essentially ignored the limited scope of its power, that is, not to encroach upon the constitutional authority of the legislature.

The order in passing refers to the 2006 judgment in Prakash Singh and Others v. Union of India to establish its jurisdiction to issue orders of this nature according to Article 32 read with Article 142. Article 142 deals with procedural aspects and the two words “complete justice” cannot enlarge its scope. In construing the expression, “complete justice,” the scheme of the Article should be looked into. It is not right to construe words in a vacuum and then insert the meaning into an Article, explains Dr. R. Prakash in the treatise “Complete justice under Article 142” published in 2001.

Poor implementation

Now, we come to the question of implementation. Where the UPA has methodically thwarted systems, what could be better than a multi-member independent Civil Services Board in theory? One in practice! In Prakash Singh and Others v. Union of India, the Supreme Court gave similar orders on police reforms, directing State governments to implement the order in six months from its passage, but seven years hence none of the States has actually implemented the order. State politicians can challenge its establishment on the ground of intrusion into State rights. Even in States where Civil Service Boards have already been constituted — as in Uttar Pradesh — arbitrary transfers and postings are the prevalent norms. Since 2008, Uttar Pradesh has also had a transfer policy. But random transfers — often to punish “erring” officers — are the norm. The case of Durga Shakti Nagpal is the most recent example of the fact that even established boards have little force when facing political will.

Some of what the court suggests as safeguards are already available to civil servants but they have been used rarely. For instance, an officer can record any minister’s oral instructions to him and send them to the minister for confirmation. One cannot really say if it is more the threat of transfer or the incentive of a patron-client relationship fairly early in their bureaucratic career that stops officers from using this provision. It is not certain that governments will do what the court has ordered. If the legislation asked for is not passed in three months, whom will the court haul up? The Chief Minister or the Speaker? That could provoke a constitutional crisis. Assuming that power comes with responsibility and accountability, should orders that are not enforceable be issued?

The Supreme Court order is not going to change the nature of the senior bureaucracy. The Cabinet, instead of the Civil Services Board, continues to have control over appointments made at the highest level. As long as bureaucrats are willing to twist and bend before politicians to get their choice of top postings at the end of a 25-year-long career, the bureaucracy can never be immune to political interference, and let’s not forget post-retirement incentives. Not only incentives, there is fear too. If civil servants begin to believe that even years after retiring, they can be criminally prosecuted for a mistake made in good faith or for a bona fide decision taken on the basis of the data that was available, there will be serious repercussions on the morale of serving officers.

Also, fixed tenure takes away the privilege of Ministers to work with the best officers of their choosing. No system should prevent a Chief Minister from choosing his own Secretary and the Chief Secretary of the State. When there can be alternative procedural safeguards to save honest officers from arbitrary transfers, why impose less-able officers on Ministers? Take the example of Prime Minister Manmohan Singh who replaced his Finance Secretary and Chief Economic Adviser, and put together his team. Is that flexibility to be always denied to a Minister?

While it is necessary to stay the hand of politicians, so is it important to reform the bureaucracy. For instance, one-third of the All-India Service officers are “conferred IAS officers” promoted from the State services to key positions such as District Collectors, Secretaries to government and heads of departments. The three to five year security of tenure in key assignments enjoyed by conferred IAS officers is absolute — an almost sure-shot recipe for dishonesty and lack of integrity.

Can you consider the perils of a politically weak future government where every Minister would be answerable to the bureaucrats for the transfers he orders to ensure better administration? The danger of a country that is ruled by the judiciary is bested only by that which is ruled by the bureaucracy — voters cannot end their tenure in office every five years!

(Pinky Anand is a Senior Advocate.)

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