The political executive and the permanent executive should realise they are public servants first and work in harmony to achieve the constitutional objectives
There is a need to arrest the ‘laal batti’ [red beacon] culture in public governance. The Supreme Court of India has been delivering a variety of judgments on matters of public governance, and these have been the subject of debate and discussion. Some of these related to the role of criminals in legislatures, the option to exercise the voting right to reject all contesting candidates by what is known as the “none of the above” option (NOTA), insisting on a fixed tenure for top civil servants’ postings, effecting the transfer of senior civil servants through a Civil Services Board, and civil servants necessarily obtaining written orders from their political masters before implementation. The latest judgment on the use of the red beacon has become a bone of contention. It is indeed timely, significant and relevant as it attacks the feudal mindset of our public servants.
A view has often been expressed that such intervention by the Supreme Court to improve the quality of public governance and democracy would amount to judicial overreach, not warranted by the spirit of the constitutional provisions. In line with this critical view, Pinky Anand, a Senior Advocate in the Supreme Court, wrote in The Hindu (“Keeping politicians at bay”, Nov. 26, 2013) raising some issues on the role of the bureaucracy and politicians, and the maintainability of the petition filed under Article 32 of the Constitution on the relationship between politicians and civil servants. The author stated: “The Supreme Court has assumed itself to be superior to Parliament and is directing Parliament to enact new laws, which seems to be violating the fundamental principle of Separation of Powers.”
But nowhere did the judgment suggest or imply such a view. Para 29 recognises Parliament’s authority to bring in legislation to set up a Civil Services Board. A reference is made to the statement by the Union government’s counsel to the effect that a draft Bill titled “Civil Services Performance Standards And Accountability Bill, 2010” was under the government’s consideration. In several cases, including Vineet Narain (1998) and Prakash Singh (2006), the Supreme Court had recommended legislation to fill the vacuum, and issued directions as an interim measure.
The Supreme Court invoked this approach in the landmark judgment in Vishaka vs. State of Rajasthan (1997), setting out guidelines to prevent sexual harassment and discrimination at the workplace. Although one may not differ with Ms. Anand in arguing that the vacuum in governance prompted the judiciary to step in, the reluctance, indifference and insensitivity on the part of governments cannot be overlooked. The main reason for such an attitude seems to be the fear of erosion of political authority in governance.
A case in point is the lackadaisical approach to the subject of electoral reforms. Although some electoral reforms were recommended by the Election Commission of India, the Law Commission and civil society organisations, ruling parties have justified their inaction on the ground that there was no political consensus. It is amazing that while many pieces of legislation are being enacted with the necessary majority, election reforms and such other governance reforms are not getting through owing to lack of political consensus. This is but lack of political will, and is based on selfish reasons of survival.
Ms. Anand questioned the competence and expertise of the petitioners in asking the “judiciary to overreach into the domain of the executive”. The petitioners made no such request. Their expertise cannot be doubted, considering that collectively they had 2,500 man-years of hands-on experience in public administration. All that they sought was action on the reports of government-appointed commissions and committees, including the Administrative Reforms Commission which was headed by political personalities.
The court’s direction on the subject of the tenure of officers is criticised as an act of “taking away the privilege of Ministers to work with the best officers of their choosing”. But the author overlooks the fact that the judgment explicitly recognises the right of the political leadership to overrule the recommendations of the Civil Services Board by stating that in such a case the reasons had to be recorded by the political masters. The judgment does not in any way impinge upon the domain of the political executive.
An obnoxious nexus
Supreme Court judgments on such matters relating to public administration should not be seen as an issue between the political class and the permanent executive. On the other hand, it has to be seen as an attempt to promote good governance and quality democracy in order to achieve the rule of law and equality of opportunities. Unfortunately, in India there is an obnoxious nexus between some members of both the political class and the bureaucracy, which has, over time, gradually resulted in deterioration of public governance.
This process seems to have started soon after Independence. Vallabhbhai Patel, India’s first Deputy Prime Minister, said in 1950: “Certain tendencies and developments in our administration and public affairs fill me with some disquiet and sadness of heart. Our public life seems to be degenerating. We talk when the paramount need is that of action. With all the sincerity and earnestness at my command I appeal to all my countrymen to reflect on what they see in and around themselves.”
This aspect was highlighted in detail by the Shah Commission report which inquired into irregularities in administration during the Emergency (1975-77). The feudal culture of public servants (and politicians in office) seems to be the bane of our public administration. And it is spreading, resulting in lack of sensitivity, efficiency and accountability in public service.
It is therefore necessary that the political executive and the permanent executive realise they are public servants first, and that it is their duty to work in harmony to achieve the constitutional objectives. Let it be clearly understood that public governance in a democracy is not the private business of any one section. It is the collective responsibility of the government as a whole.
Today, the conditions and circumstances of public administration are different from what they were some time ago. A vigilant civil society, ever-watchful media and the Right to Information Act require that politicians and the bureaucracy are held accountable and their actions remain transparent. They will frequently seek intervention by the judiciary to protect the fundamental rights under a good and effective public governance.
Caveat against power hunger
In 1947, India was an infant aspiring to grow in the comity of nations. The freedom fighters undertook another task of drafting the Constitution based on other countries’ experiences.
One of the issues highlighted in the discussions at the drafting stage was the anxiety to avoid concentration of power in a few individuals as naked greed for power will destroy democratic principles. However, what has actually happened in India in the last few decades is shocking and demoralising. The best political and governance practices have been distorted and twisted by those in power.
We have to realise that there is an urgent need to change the country’s administrative culture if we have to survive as a nation. We need to get away from the leisure culture where public holidays and delays contribute to deficiencies in the delivery of public services. We need to get away from the feudal culture of politicians and civil servants, who adopt a domineering attitude while dealing with the common man. We need to get away from the hostile attitude between the politicians and civil servants vying with each other in exercise of their power.
What we need is not keeping at bay either the politician or the civil servant; what we need is a clear demarcation of their respective roles in rendering public service. The laal batti culture, frowned upon by the Supreme Court, highlights the need for urgent administrative and attitudinal change.
(The author is a former Chief Election Commissioner of India. Email: firstname.lastname@example.org)