(Sample Material) Study Kit on Current Affairs for UPSC Mains Exam: Ethics & Integrity: Was Judicial Intervention in Management of Civil Services Required?
(Sample Material) Study Kit on Current Affairs for UPSC Mains Examination
Ethics & Integrity: Was Judicial Intervention in Management of Civil Services Required?
It is widely acknowledged, including by the Government of India, that poor implementation and weak oversight have distorted and reduced the effectiveness of Government policies and programmes. Thus, the Second Administrative Reforms Commission (ARC) acknowledged that “governance is admittedly the weak link in our quest for prosperity and equity. (Second ARC, Fourth Report on Ethics in Governance). The Tenth Five Year Plan noted that “people’s welfare is largely determined by the efficiency of public delivery mechanisms. The best plan cannot compensate for poor implementation. Accountability and efficiency in all our public institutions are the key to unlock the potential of our country and to sustained social development.” Weak governance has adversely impacted performance and resulted in unacceptably poor outcomes in a large number of critically important sectors, especially in crucial areas such as education, public health, etc. reflecting in very poor international ratings relating to various indices of comparison.
Since, for the need of proper management of Civil Services, the implementation of Government policies and programmes is the responsibility of the permanent civil service, the lacunae and fault lines in this regard can be traced back directly to the civil servant. The consistent failure to achieve targets, across the board and over time, clearly indicates that the basic problem underpinning each failure lies in implementation arising out of poor governance. Any attempt to improve administration must, therefore, necessarily focus on the micro-issue of civil service reform, which in turn, affects all aspects of service delivery and implementation.
The Union Government as well as the State Governments have set up numerous Committees which have studied and made recommendations with regard to administrative and civil service reforms. All these Committees have concurred on the need to protect the civil servant from extraneous pressures and make him/her independent so that he/ she can render his/her considered advice freely and frankly, without fear or favour. Although, many of the recommendations of these Committees have been broadly similar, they have not been accepted or implemented. In this context, the Second Administrative Reforms Commission (2006-2008) noted that “it is ironical that there has been no sincere attempt to restructure the Civil Service although, more than six hundred Committees and Commissions have looked into different aspects of public administration in the country. The Indian reform effort has been unfailingly conservative, with limited impact. Civil service reform in India has neither enhanced the efficiency nor the accountability of the Civil Service in any meaningful manner.”
The Hota Committee and the Santhanam Committee have recognized that much of the deterioration in the standards of probity and accountability within the Civil Services can be traced to the practice of issuing and acting on verbal instructions or oral orders which are not recorded.
At present, the system of transfers, postings, promotions, disciplinary and other personnel matters pertaining to the higher civil services are ad-hoc and non-transparent. Transfers are often used as instruments of reward and punishment, with officials being frequently transferred on the whims and caprices, as well as the personal needs of local politicians and other vested interests. Officers, especially those in the All India Services serving in State Governments, have no stability or security of tenure, the ‘transfer industry’ is backed by entrenched and powerful vested interests, as frequent transfers generate huge amounts of black money for corrupt officials and politicians, both directly and indirectly.
All Commissions and Committees dealing with administrative reform have stressed the need for transfers at all levels to be handled in a non-political, non-partisan, open and transparent manner. The Hota Committee had identified the absence of a fixed tenure for officials as one of the most important reasons for tardy implementation of government policies and programmes, lack of accountability, waste of public money and large-scale corruption. “Good administration is not possible without continuity and intelligent administration is not possible without local knowledge.”
The Conference of Chief Ministers (1997) had observed that frequent and arbitrary transfer of public servants affects the ability of the system to deliver services effectively to the people. It recommended the constitution of Civil Services Boards in different states. Direct political control or direction in the management of transfers, postings, promotions, inquiries, disciplinary proceedings, rewards and punishments has adversely affected the morale, capability, efficacy and morality of the Civil Services. These matters need to be de-politicized and entrusted to independent Civil Service Boards, which will closely monitor and ensure accountability at all stages, regulate transfers in a transparent and rational manner, protect the honest civil servant, and identify and recommend punishments for those who betray the public trust.
The implementation of civil service reforms and institution of a rational and transparent policy on transfers would go a long way in insulating civil servants from wrongful and extra-legal pressure from the political establishment.
PIL on Governance
It is in the above background of consistent reluctance, indeed total opposition to genuine reform in the management of civil services that a group of retired officers had to move to the Apex Court for intervention. The prayer before the Court was neither related to the welfare of the serving officers, nor to the difficulties suffered by them through arbitrary transfers and whimsical management of the services dictated by special interests. The prayer related to the adverse impact on the population in general, since the civil services are not being enabled to provide the proper services that they are legitimately designed to perform - indeed the pleas related to improved rational management of the civil services, as a prerequisite for improved public administration.
The PIL, initiated in 2011 had the following specific prayers:-
i. For issue of a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the creation of an independent Civil Service Board or Commission, both at the Centre and the State based on recommendations by the Hota Committee, 2004 (para 5.09, para 5.11, Main Recommendations No.38); the 2nd Administrative Reforms Commission, 2008 (10th Report, para 9.8); the statement adopted at the Conference of Chief Ministers on Effective and Responsive Administration, 1997;
ii. For issue of a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the fixation of tenure for civil servants ensuring stability, based on recommendations by Jha Commission 1986 (para 7.2); Central Staffing Scheme 1996 (para 17.01,para 17.02,para 17.03, para 17.12), the 2ndAdministrative Reforms Commission, 2008 (10th Report, para 8.7, para 9.8, para 17.5); Hota Committee Report, 2004 (Main Recommendations No.39);
iii. For issue of a writ in the nature of mandamus or any
other appropriate writ, order or direction requiring that every civil servant
formally record all such instructions directions/ orders/suggestions which
he/she receives, not only from his/her administrative superiors, but also from
political authorities, legislators, commercial and business interests and other
persons! quarters having interest, wielding influence or purporting to represent
those in authority based on the principles recognised by Rule 3(3)(ii)(iii) of
the All India Services Conduct Rule 1968 and as implicitly recognized by the
Santhanam Committee Report, 1962 (section 6, sub-para 33[iii])
The demands stated above are clearly unexceptionable in principle; these are normally taken for granted in a well-functioning democracy. These very recommendations have been made in one form or another by successive administrative reforms commissions! committees, as indicated earlier. Indeed, these are the starting points of any civil service reform, so, much more work needs to be done to make the civil services an effective instrument of governance.
In October 2013, in a landmark ruling, the Supreme Court in
its findings, was fully supportive of the logic of the PIL and the need for
intervention, in the public interest. The Supreme Court categorically supported
the need for specifying a ‘normal tenure’ for every category of posts at the,
Centre and the State, and asked for a procedure to delineate the same. With
regard to the establishment of the Civil Services Board, the Apex Court directed
that such Boards, having expertise in areas such as finance, personnel, etc. may
be established, separately at the Centre and the States, to oversee and
recommend the management of civil services, including postings, transfers,
disciplinary proceedings etc. The Apex Court also endorsed the principle that
all oral instructions be brought on record and directed this to be formalized by
the governments within three months.
Thus, the Supreme Court has paved the way for far-reaching reforms in the management of the civil services, through its landmark directions in October 2013. What was seen hitherto as the exclusive domain or area of activity by the executive, is now subject to the test of’ public interest’; the Supreme Court, under the umbrella of Article 32 of the Constitution has found it fit’ to enter this domain, and has recognized the right of the people for ‘good governance’ as a fundamental right.
Supreme Court, Orders, on Administrative Reform
It should be noted that this intervention of the Court is exclusively from the perspective of ‘public interest’; it does not directly address grievances of civil servants, for which there is a separate mechanism. Clearly, the orders of the Court would imply some restraint or conditionality on the freedom of the political executive to have exclusive jurisdiction over postings, transfers and service matters - a larger dimension has been introduced, stemming from the fact that all public servants are there for service of the public - management of civil servants is not a question of the mere convenience or desire of the elected public servants. Clearly, the elected head of government or elected representative needs full freedom to govern; this includes the right to move personnel in ‘public interest’ However, with the -latest Supreme Court intervention, this right is not absolute. There has to be a rationality and reasonableness in the management of the civil services; as an essential part of good governance. Governance is not a personal household-type management by the elected representative; the civil servant is not a private servant, at the exclusive disposal of the elected public servant, to merely suit the latter’s convenience and needs - the overall public interest is the paramount consideration, of which the elected public servant is not the exclusive arbiter. The ‘reforms now mandated by the Apex Court are eminently reasonable if the successive governments at the Centre and States had taken minimal care to ensure rationality in their management of personnel, the need for court’s intervention would not have arisen.
The public comments on the subjects, have characterised the intervention of the court as unnecessary, or over-stepping the jurisdiction of the Court. Clearly, this point of view is not sustainable - interpretation of public interest and the larger ambit of Article 32 is in the province of the Apex Court, whose views are final. This issue has also been portrayed as one of Politician vs. Bureaucrat - this is clearly an erroneous, non-constructive and negative way of looking at the matter. The intervention of the court is fully justified and their definition of public interest is the only relevant one. Indeed, both the elected and permanent civil servants are the two sides of the same coin. Their interests in terms of dealing with public matters are common; there is, at least ought to be, no conflict in their mutual positions relating to public interest. Indeed, there can be no arbitrariness in public affairs; the concepts of transparency, right to information and the like are gaining greater currency and legitimacy in national practice increasingly in recent years.
Many elected politicians desire no restraint of any sort, on their freedom of action, merely on the ground that they have the electoral mandate to govern. Clearly, such a view is unsustainable; the overall public interest is supreme, under the umbrella of the Constitution. The elected representative is not the final judge of public interest, nor is the electoral victory, a licence for unfettered action. Thus, we have seen the reluctance of the politician, of every hue, to have an effective Lokpal; likewise the resistance to electoral reform, or for instance, openness in the financial accounts of the political parties. As we have seen in the case of the Lokpal, we have a thriving effective democracy, where public opinion can force significant changes in the overall structure, despite the combined opposition of the political class.
One further word· on the issue of judicial activism or overreach, so far as this issue is concerned, needs to be mentioned. It is the inherent strength of our Constitution that the third pillar, the Judiciary, has time and again risen to bridge the gap and to restore the overall balance and sanity in the system of governance. Thus, the present intervention by the Supreme Court ought also to be seen as an instance of the inherent strength of our Constitution and the Republic.
One final word on the implementation of the Supreme Court’s orders may be relevant. Many comments have been heard that governments will drag their feet and will not implement the civil service reform directions in letter and spirit. Indeed, it has been pointed out that the Prakash Singh verdict in 2008 of the Supreme Court in relation to Police Reform, still remains largely un implemented, with the State Governments reluctant to implement them. It should be pointed out that the overall atmosphere in 2014 is different from that existing a decade back in this respect. We now have a very active, aggressive and vocal media, unafraid of authority; civil society has acquired new energy and respectability; RTI has come into its own after ten years of existence there is a growing yearning for good dean governance. The circumstances are quite propitious for substantial and serious implementation of the Apex Court orders. This verdict may also provide a fillip to improved implementation of the Prakash Singh verdict.
In recent months, two major structural steps have entered our public space, not because the government wanted it, indeed despite government’s strong objection. The Lokpal Bill has now been passed; its impact will clearly be felt over the next decade as a highly positive force. The Supreme Court verdict on Civil Service reforms has similar potential to impact the quality of governance, over the next decade or so.