by Rakesh Mohan
Although there are several notable exceptions (such as some of the recent debate on the GST), Parliament has ceased to be a venue where the people’s representatives seriously debate issues or seriously review policy or Budget documents or reports prepared by parliamentary committees. Tolerance for other points of view has declined, and instead of reasoned discussion, the tactics of street warfare are used to oppose a particular legislation or to highlight issues of corruption. Much of this deterioration mirrors the sharp political divide that has emerged in many major democracies and the failure of political leadership of the ruling party, to take Parliament seriously and to seek and build consensus around reforms. Moreover, power has shifted to the Executive in most Westminster-style governments, and legislatures are weaker.
• The Executive Branch and Service Delivery
Citizens expect the government in power to provide them with basic services or to regulate the providers of such services. They also expect the government to enforce the rule of law and ensure law and order.
The Civil Service
The civil service plays a central role in delivering a broad range of services to citizens and helping elected representatives fulfil the social contract. ‘Government service’ is still seen as an avenue for personal advancement. Recruitment is through a highly competitive process. Some 3 million people apply each year—a four-fold increase over 1990—and a tiny fraction get in for the various services, with less than 100 securing admission in the prestigious Indian Administrative Services (IAS).
Given the odds of getting in, the quality of intake is presumably high. Yet, ‘there is a widespread perception within and without the IAS that the average IAS officer’s ability to enforce the laws, rules and procedures, and to tender policy advice without fear or favor has declined dramatically, to the point where a large number of officers are perceived to routinely act at the behest of political or other interests in the performance of their routine (non-policy) work’.17 The legendary reputation for integrity has gone, and there is a further perception that there is extensive misuse of the officer’s official position to secure ‘pecuniary advantage’. There are undoubtedly many officers who choose to remain clean, but they tend to pay a heavy price for such integrity.
Two principal problems plague the civil services: first is the relationship between civil servants and their political masters, and the second, and related, is the steady deterioration in the quality of internal management of the services.
The National Commission to review the working of the Constitution describes the root problem in the relationship between the political executive and civil servants:
Arbitrary and questionable methods of appointments, promotions, and transfer of officers by political superiors also led to corrosion of the moral basis of (the civil service’s) independence. It has strengthened the temptation in services to collusive practices with politicians to avoid the inconvenience of transfers and to gain advantages by ingratiating themselves to political masters.18
The civil service is poorly managed. It is also grossly understaffed at the senior level, with Class A and B employees comprising roughly 15 per cent of the 3 million central government employees. A central issue, relating to political management, is the short average length of postings. In the 1978–2006 period, the average tenure of postings for nearly half of all IAS officers was less than one year, and for another quarter, less than two years. The impressive second ARC report found that training was grossly underemphasized, and its role in domain expertise and promotions was weak; there was a ‘glaring mismatch’ between required competencies for jobs and the background or training of officers; appointments lacked transparency and did not emphasize domain competence; performance management systems were weak and promotions were routine and automatic up to the joint-secretary level. Of these, the most serious issue, in a world of increasing technical complexity where governments in middle-income economies are required to manage complex transitions is the neglect of domain expertise in a service dominated by colonial-style generalists. As Rakesh Mohan notes, ‘civil servants may be field district officers one day and state or central government secretariat functionaries the next. Domain knowledge is then acquired on the job, but no sooner is it acquired than they are transferred to the next job’.19
The three most important of the ARC’s many sensible recommendations were (i) to subject postings and transfers to a more transparent process, less prone to political interference, by establishing central and state civil service authorities, (ii) introducing a fitness bar after fourteen and twenty years of service to allow officers to be discharged for unsatisfactory performance; and (iii) introducing competition for joint-secretary-level appointments from all government services and for highly specialized assignments from outside the government. The Commission could have gone further and recommended opening up all joint-secretary positions, and some even more junior, for external competition to attract domain expertise from outside.
The UPA failed to act on these important ARC recommendations. Public Interest Litigation (PIL) from retired civil servants resulted in the Supreme Court instructing states in 2013 to establish Civil Services Boards and a fixed tenure for all cadre posts, but state governments have largely ignored this. There are still highly talented and hardworking officers in the system. When the interests of political leaders coincide with the need to do the right thing—such as managing natural disasters, or the Kumbh Mela, or when officers report to the Chief Election Commissioner and manage elections—they do a first-rate job. Yet, this potential remains largely unrealized due to a failure to reform the system.
The Police
Nowhere is the contrast starker between the transformation that India has witnessed in the last twenty-five years and the state of its institutions than in the case of the police. The police are still governed by an 1861 Police Act. The colonial culture that produced this Act is alive and well today. Ruling political parties that use the police to further their own interests have replaced the colonial masters. As Ved Marwah, a retired police officer and former governor, notes:
Arbitrary interference in day to day functioning has played havoc with its organization and morale … The ruling parties are directly interfering in their recruitment, postings, transfer and promotions. Beholden to their political masters, the police take less interest in the difficult task of enforcing the rule of law and spend more time in serving their benefactors.20
This day-to-day interference includes the routine actions police take in arresting anti-social elements or acting on a court-ordered detention since their superiors come under pressure from politicians ‘who attempt to make capital out of every incident’.21
Political interference apart, the police force faces three issues that are similar to those faced by the administrative services. First, it is poorly managed. Decision-making is highly centralized, both for personnel and for the resources needed to conduct investigations and perform basic tasks. Power is concentrated in the hands of the elitist Indian Police Service (IPS), which constitutes only 1 per cent of the police force. While much of the day-to-day work of the police is done by the middle ranks of inspectors and sub-inspectors, the SP (an IPS officer) calls the shots, and their chances of promotion and their ability to influence decisions are limited.22 Constables who account for 80 per cent of the police force are generally poorly educated, poorly paid, work long hours, and are treated shabbily by the officer class. They enjoy considerable powers of arrest, search and seizure, but lack the training and skills to exercise these powers without abusing them.
India’s crime rates are low by international standards. Crime incidence rose in absolute numbers from 4.8 million in 1990 to 7.2 million in 2014, but fell modestly to 581 per 1,00,000 people over this period. This decline, however, has more to do with the failure to properly record crimes than an actual decline in crime rates.23Politically managed data is part of the story of political interference and weak management.
Second, t
he police are grossly understaffed. While the sanctioned strength is 2.26 million, there are half a million vacancies, resulting in an actual size of 1.72 million.24In relation to India’s population, this is small, with 135 police per 1,00,000 people in 2013 as against 262 in Brazil, 367 in Mexico, 208 in South Korea and 225 in the UK (United Nations Office on Drugs and Crime). India’s armed police has grown rapidly and is now roughly one-fifth of the sanctioned police force.
Third, there is a growing mismatch between the skills and domain expertise needed for effective policing in a rapidly changing environment and a police force whose incentives are geared to primarily protect a ruling elite. The rule of law depends jointly on the judiciary and the police enforcing it. It is often equated with preserving law and order, but important as that is, the more subtle and difficult task is to ensure equality before the law, even for the country’s poorest and weakest. This is rarely understood. Beyond this basic function, a rapidly growing entrepreneurial and business class expects security for its enterprises. A growing middle class expects police protection from crime and harassment. A vibrant democracy brings demands each day to protect voters in elections, to ensure that demonstrations remain peaceful, and to provide security for political leaders. The growing threat of terrorism and social unrest requires high-quality intelligence and strong links with communities. The rapid increase in corruption and other white-collar crime calls for specialists in these areas. These multiple demands require a thorough modernization of the force.
State governments have resisted pressure from Supreme Court rulings on PILs to reform the police. Law and order is a state subject, so the ability of central governments to bring about change in the police is limited. However, a reformist central government could pass a ‘Model Police Bill’ as suggested by the Supreme Court, and at least implement reforms in union territories and pressure states under their party’s rule to implement reform.
The Judiciary
The judiciary is among the most trusted of India’s key governance institutions. It has also become very powerful as a defender of the Constitution and a protector of citizens’ rights. It is active in exercising its powers of judicial review and entertaining PIL suits, particularly in enforcing the Directive Principles of the Constitution. It is often seen filling the vacuum created by failures of the Executive branch, in what is regarded by its critics as judicial activism. At the same time, the judiciary is also becoming progressively dysfunctional.25
This dysfunctionality can be seen in the pendency of some 60,000 cases in the Supreme Court, some 3.9 million in the high courts and 27 million in the subordinate courts at the end of 2015 (see Table 2). The vast majority of cases have been pending for ten to fifteen years.26
There are four principal reasons behind this massive pendency:
First, the management of the court system has progressively deteriorated over the years. This is reflected in poor case scheduling, frequent rotation of judges, atrocious case management and judges agreeing too easily to requests from lawyers for postponements.
Second, India grossly underinvests in its judiciary. There are only 17,000 judges, roughly a fourth of the number recommended by the 120th Law Commission Report in 1987 nearly three decades ago. The problem is further exacerbated by a large number of vacancies. The high courts, for instance, have some 470 vacancies against a sanctioned strength of 1079 judges. A severe shortage of courtrooms worsens the situation.
Third, there appears to have been a deterioration in the quality of judges over time. While on average the quality remains high, poor pay, particularly relative to the high fees top lawyers command for each appearance, makes it unattractive for lawyers to want to join the judiciary. The blame also lies in a collegium system for selection of judges, which lacks transparency27 and is seen as relying too heavily on seniority and being too tolerant of weak and sometimes corrupt behaviour of judges. Efforts by the Executive to reform the system by creating a National Judicial Appointments Commission were blocked by a Supreme Court ruling that saw this as an encroachment on the separation of powers in the Constitution.
Finally, the government adds to the backlog of cases by becoming what ex-Attorney General Goolam Vahanvati calls ‘a compulsive litigant’, filing appeals on ‘frivolous grounds’ in what is seen as an unholy nexus between civil servants and lawyers who ‘milch’ the government for legal expenses.28
Table 2: Pendency of Cases in Indian Courts
2010
2015
Supreme Court
Pending (start of year)
55,791
62,791
Fresh Cases Filed
78,280
82,114
Cases Resolved
79,509
85,663
Pending (end of year)
54,562
59,272
High Courts
Pending (start of year)
40,60,709
41,43,803
Fresh Cases Filed
18,64,975
13,56,479
Cases Resolved
16,77,863
12,53,501
Pending (end of year)
42,49,344
38,75,014
Subordinate Courts
Pending (start of year)
272,74,953
264,88,111
Fresh Cases Filed
180,04,311
189,39,721
Cases Resolved
176,59,558
182,68,495
Pending (end of year)
277,51,181
271,00,951
Sources: The Supreme Court of India Annual Report 2014; Court News Vol. 5, Issues 2–4; Vol. 6, Issue 1; Vol. 9, Issues 3–4; Vol. 10, Issues 1–4.
The high pendency of cases results in unacceptable delays in enforcing contracts and property rights and in meeting citizens’ needs for criminal and civil justice. It rewards the rich and the more influential who can manipulate the system, and penalizes honest and poor litigants. It is time the state invested adequate managerial and financial resources in developing a modern judicial system that can cope with the demands for dispute resolution of a rapidly growing economy while also ensuring the rule of law for ordinary citizens. The judiciary on its part must ensure that the incentives facing judges are aligned with the need to reduce the pendency of cases. This, in turn, will require reforming the country’s bar associations and ensuring that lawyers play their part in reforming the system.
IV. The Guardians of Accountability
While the judiciary has proved to be the main guardian of accountability in India, the Constitution specified a number of other bodies that play a key role as checks-and-balances institutions, such as the Election Commission, the Comptroller and Auditor General, the Attorney General, and the Union Public Service Commission. In addition, there are a number of other statutory bodies such as the Central Vigilance Commission (CVC), the National Human Rights Commission (NHRC) and the Lok Pal. With the exception of these statutory bodies, where the leader of the Opposition participates in the high-powered committee to select the chairperson, the President, on the advice of the prime minister, appoints the three constitutional posts. While for the most part these constitutional posts have been discharged with a reasonable degree of independence from the Executive branch, as L.K. Advani noted in his letter to then Prime Minister Manmohan Singh, ‘keeping these important decisions as the exclusive preserve of the ruling party renders the selection process vulnerable to manipulation and partisanship’, especially when it is critical that these posts are filled by persons with ‘competence, integrity, and an impeccable record of service’.29 This consideration also applies to such critical bodies as the Reserve Bank of India (RBI) and a number of regulatory and other bodies that inter alia act as institutions of restraint.
While Advani was only advocating the inclusion of the leader of the Opposition in the selection process, the interests of the political class tend to coincide in choosing someone who
is amenable to influence and pressure from the government in power. It is important to broaden the appointments committee for all key appointments to include representatives from civil society and eminent persons knowledgeable in the area to ensure transparency and due process.
V. Citizens and the State: The Direct Link
While India’s formal institutions have mostly experienced a slow process of decay, India has experienced a social revolution in its informal institutions. This is owed to two parallel and reinforcing phenomena. First, compensating for state failure, citizens have found ways to enhance their voice. Civil society has grown exponentially and become a powerful tool in exposing government to public scrutiny. Registered NGOs now number over 3 million. That they are beginning to make a thin-skinned political class uncomfortable is reflected in both the UPA and NDA efforts to clip their wings. Citizens’ voice is also amplified by the rapid growth of the media and, particularly, television viewership, which has risen from 1.2 million TV homes in 1992 to 168 million in 2014, and from one state-owned TV channel to 800 channels, of which some 400 are 24x7 news channels in fifteen languages.30 Numerous daily TV debates expose government policies to close scrutiny and educate citizens on issues.
Second, the telecommunication revolution is transforming connectivity between citizens and creating an instrument that amplifies citizens’ voice and transmits it instantly across the country. Starting from almost scratch at the turn of the century, India now has close to 700 million unique users of mobile connections and 375 million users of the Internet (see Table 3). This is still a nascent industry. Penetration rates are still low but will soon catch up with countries such as China and Indonesia. Internet connectivity is becoming the norm, marking a fundamental transformation in the way people communicate and access information. Current usage is confined to the upper and middle classes but is spreading rapidly, especially among the young.