Indian Civil services replete with constitutional anomalies as reforms continue to be anathema

Recent decision of the central government compulsorilyly retiring some officers needs to be welcomed as a step in the right direction. But the other recent decisions of giving extension to selected secretaries to Government of India, in some cases well beyond the age of retirement, is disconcerting.

When there is no dearth of meritorious and deserving officers, this cannot be justified on any ground. This has understandably led to considerable demoralisation among officers, giving mixed signals about Modi government’s commitment to undertaking civil service reforms, which have been neglected all these years. It needs to be appreciated that economic reforms aimed at globalisation and achieving double-digit economic growth will be incomplete without adequate emphasis on civil service reforms.

It may be recalled that in spite of Jawaharlal Nehru’s reluctance, it was only due to the insistance of Vallabhbhai Patel that specific provisions were made in the Constitution of India to create the two all India services to serve the centre and the states, and give protection to service matters of all civil services. Patel was of the firm view that independent, apolitical civil services, which can provide objective and fearless advice to the ministers were necessary for India’s future. Their importance was also underlined by Justice RS Sarkaria commission report (1988) on centre-state relations.

Representational image. Reuters

Representational image. Reuters

Unfortunately, like several other provisions of the Constitution, these constitutional safeguards too have remained on paper.

When Dr. Rajendra Prasad, President of the Constituent Assembly, rose to move the motion for adoption of the Constitution in 1949, with great foresight, he had said : ‘Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. This will depend upon the men who administer it.’ Similar sentiments were expressed by BR Ambedkar, Chairman of the Drafting Committee of the Constitution, in his closing speech in the Constituent Assembly in November 1949: “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of the Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of state such as the legislature, the executive and the judiciary.’’

The experience of the working of the Constitution during the last 67 years has shown how true are these observations are. Rapid decline in standards of governance have also been commented upon by a number of committees and commissions.

After summarising the observations of a number of commissions of inquiry held earlier, the Shah Commission on Emergency excesses, had, in its last report (1978), noted: “One cannot but be struck by the near unanimity in the observations of several commissions on the unhealthy factors governing the relationship between the ministers and the civil servants. Yet nothing seems to have been done, at any rate effectively, to set right such of the aspects of these relationships which, prior to the Emergency, had contributed to the several developments which came in for indictments by the commissions. In the light of this, it may be easy to conclude that what happened during the Emergency is merely a tragic culmination of the particular trend that has been identified and condemned from time to time by the commissions of the past.”

The National Commission to Review the Working of the Constitution had, in its report (2002) stated, “The present situation is characterised by a pervasive disenchantment with the way things have worked out. It is futile to debate whether it is the institutions provided by the Constitution that have failed or whether the men who work those institutions have failed.”

It is disappointing to see that such a high-powered commission comprising legal luminaries and eminent public figures failed to go into the relevant issues and remained satisfied with such a bland conclusion, which does not make anyone any wiser.

Good governance has now become a globally accepted concept. All political parties in India are seen to be vying with each other in making promises to voters to provide good governance. There is a recognition that good governance can be an effective antidote to the dreaded phenomenon of anti-incumbency. This is borne out by some chief ministers enjoying three or even more terms in office. However the essential pre-requisites for good governance have been deliberately neglected. Prominent among them are civil service reforms.

Unfortunately, even the judiciary, which is the last bastion for upholding the Constitution, has, till recently, been reluctant to take on the political executive, when it came to management of civil services. Repeated pleas made to the Supreme Court against arbitrary mass transfers, undeserved supersessions in promotions, favouritism and suspension of all India service officers failed to elicit worthwhile response. Prominent among these was the writ petition filed by me in the Supreme Court (C) No. 69 of 2004.

It was submitted to the court that the words “governance of the country” appear only in Article 37 of the Constitution in Part IV on Directive Principles of State Policy but good governance is writ large and implicit in several provisions of the Constitution. In this light, it was urged that time had come to declare right to good governance as a fundamental right.

This would be in keeping with the Supreme Court declaring a number of other rights such as right to privacy, right to information, freedom of press, environmental protection and some other rights as fundamental rights, though they did not find explicit mention in the Constitution.

All political parties in India are seen to be vying with each other in making promises to voters to provide good governance. There is a recognition that good governance can be an effective antidote to the dreaded phenomenon of anti-incumbency. Prominent among them are civil service reforms.

The Supreme Court itself had observed in Maneka Gandhi (AIR 1978 SC 597) that “The attempt of the court should be to expand the reach and the ambit of fundamental rights rather than to attenuate their meaning and content by a process of judicial construction.” I had urged that civil services should be recognised as the instruments for translating the fundamental right of good governance into a reality.

For this purpose, they should be given independence and autonomy. Simultaneously, I had also proposed a number of civil service reforms such as:

— Pre-mature retirement of officers whose work is assessed to be unsatisfactory
— An officer, who is not empanelled for the post of joint secretary in government of India or secretary in the state government, and for each stage of promotion thereafter, should be retired — There should be a cooling off period of two years after retirement, before a public servant can join a political party.
— There should be a total ban on grant of extension in service or re-employment.

Unfortunately, the Supreme Court decided not to admit the writ petition. If it had been heard and pleas therein accepted, the series of major scams which rocked the country after 2004 could have been avoided.

Fortunately, the trend of non-interventionist attitude of the Supreme Court was reversed with the decision of the Supreme Court in Prakash Singh and others v. Union of India ((2006) 8 SCC 1) pertaining to the recommendations of the national police commission which had remained unimplemented since 1980.

The Supreme Court has given comprehensive directions for reorganisation and management of police departments of the state governments and the central police organisations. This was followed by the decision of the Supreme Court in writ petition (civil) No. 82 of 2011 filed by TSR Subramaniam pertaining to transfers and promotions etc. of all India services and other central civil services. By its decision dated 31 October 2013 the Supreme Court has laid down some broad guidelines for management of service matters of these services.

However, now a very disturbing trend is evident. Shockingly, the orders of the highest court are being blatantly flouted by several states. The petitioners are left with no other alternative than filing contempt petitions in court. This is not easy for individual officers to do, considering the time, money and effort required for the purpose. Regrettably, the Supreme Court also appears to be reluctant to haul up the defaulting states, which it can do, suo motu, if it so desires. As for Parliament and the state legislatures, less said the better. They have no time to spare for these “mundane” matters.

We have ostensibly adopted the British model of civil service. But this is only in name. The basic principles, values, rules, procedures, conventions or the esprit de core of the British civil services are no where to be seen.

In fact, the Indian civil services are the unholy mix of British, feudal and American systems, with an unique Indian touch and flavour. It is therefore no wonder we have such highly politicised and arbitrary management of civil services.

Well-known cartoonist Sudhir Telang had memorably depicted in one of his cartoons in 1990, two IAS officers introducing themselves as belonging to Rajiv Gandhi and V.P. Singh batches. Nothing has changed since then. They would now be of Manmohan Singh or rather Sonia Gandhi batch, or Modi batch!

The writer is former union home secretary and secretary, justice. He is the author, among other books, of Good Governance Never on India’s Radar (2014).

Published Date: Jan 27, 2017 19:50 PM | Updated Date: Jan 27, 2017 19:52 PM

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