No doubt the judiciary has intervened nobly on occasion, to interpret the Constitution with courage, wisdom and efficacy. It has also been proactive on many issues, often to the extent of over-reaching itself to interfere in the legitimate domain of the executive. It could also be suggested that the judiciary shows a siege mentality, trying to hold on to its turf with undue vigour, and to resist 'encroachment' by real or imagined threats.
Today the judiciary is still held in awe, perhaps not all for the right reasons. The use of 'contempt law' or the threat to use the same stands as Damocles' sword over anyone who dares question any aspect of the judicial process. In an open democratic society, every institution should be available for analysis, examination, criticism and comment. Ultimately, truth has to be the defence in any circumstances – after all the national slogan is Satyameva Jayate. It will be ostrich-like behaviour to pretend that all courts are honest and efficient; this certainly is not true. There should be larger avenues and public space for analysing actions and decisions, even if sometimes they appear to be a little excessive. After all, an institution stands by its goals, its achievements, its continued performance and the standards it maintains. It should not be brittle enough to feel threatened by well intentioned-criticism.
We also need to take note of the way the judicial structure operates. Each court is independent, and at worst its findings get over-ruled or reversed. It is rare that a higher court takes a lower court seriously to task for major blunders relating to facts or law. Nor is there any explicit mechanism for higher courts to give directives or 'orders' to other formations on matters or procedures or approach. It is expected that the pronouncements of the apex court and high courts are taken note of by lower formations, and their approach is modulated within the confines of these directions. However, in reality this is not so; frequent grant of adjournments is a case in point. One feels there needs to be a more pro-active approach by the higher courts in giving specific guidance on approach and procedure.
In this chapter, some essential new directions have been indicated. Clearly, there is room for debate to see if these or some more reforms are required, and if so to prioritise them, and also to see how many of these can be concurrently undertaken. One notes that currently there is no clear system or procedure or machinery to initiate changes and to see that they are systemically absorbed and implemented. Even the apex court gives verdicts in individual cases but rarely gives its pronouncements in such a manner as to act as a clear message and direction to lower formations. For many of the reforms, perhaps some new legislation may be required. The law ministry naturally has to take a more proactive stance. Indeed what is required is the recognition among the highest echelons of our legal structure that a machinery needs to be created to initiate and pursue reforms.
Some experiments are being tried, especially the Lok Adalat system, which has had some success in furnishing rough and ready justice, at least by bringing warring contestants to a consensus. Many more such experiments need to be undertaken vigorously under expert guidance and supervision, with the blessings of the highest judicial levels. Attempts to reduce the time taken in pre-trial formalities, without losing substance, need to be tried out. The short point is that the current mood of hopelessness among the litigant public about the seeming eternity to reach conclusions needs to be changed to one of optimism and expectation of quick, reliable, just results. Many directions have been indicated in this book – probably more from the layman's point of view or the litigants' perspective; the need now is for an informed internal technical debate to see what can be implemented rapidly, and how it can be achieved.
One gets the impression that the judicial structure is unwilling to tread on others' toes, and is quite content to guard its own turf, to protect their own privileges. This may be an extreme or harsh view, and may not take into account the brilliant, bold and innovative interventions by so many courts at many different times. But the overall impression remains of a turgid, contented system, satisfied with its own existence, and sending out the message – 'don't bother me'!
In India it is nearly an axiom that self-regulation to maintain standards, make changes, to reform and achieve excellence is rarely done by any institution. We need extra-institutional supervision and guidance, if not control, to maintain high quality. The judiciary is no exception to this rule. They should not feel shy of a suitable regulatory mechanism which identifies details of the required reform process, set it up on a continuing mode, not feel shy of encouraging progressive changes. In this process, the need of a very carefully constructed supervisory, guidance structure, with participation by outsiders, under the chairmanship of the chief justice, with open transparent operations, would be a sine qua non. A major wave of reform needs to overtake our judicial processes without delay.
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*Already referred to in my earlier book Journeys through Babudom and Netaland: Governance in India.
4
POLITICIAN–BUREAUCRAT INTERFACE
he bureaucrat and the politician are the two sides of the governance coin. The bureaucrat has had a longer life in the Indian administrative scenario than the politician. Between them there is a strange symbiosis that is, at times, antagonistic as well as mutually beneficial. Both the bureaucrat and the politician seem to be locked in a tango-cum-wrestling match where one or the other is loved, hated, relied upon and discarded as and when the winds of opportunity blow.
A Historical Perspective
The executive is primarily responsible for providing good governance in the country. The Parliamentary system provides for a political executive, which is distinct from the permanent executive. The political executive at the centre and at the state-level is responsible for policy formulation, decision-making in major matters of governance and development, as well as the supervision and monitoring of policy implementation. The bureaucracy mans posts at all levels, from the village to the block, to the district and all the way to the state and Central secretariats; and is primarily responsible for the implementation of tasks handed to it by the political executive and the senior bureaucracy. At its higher levels, the civil service acts as an adviser to the political executive and assists in policy formulation. While wider national policies are, ideally, debated and directed by the party in power, administrative policies are established by the executive. By very nature of things, the work of the political executive and the permanent executive has a large and complex overlap; their smooth and harmonious interaction is an essential prerequisite for good governance.
For a brief historical retrospect, let us look at the role of the civil services in India and elsewhere. During the Mughal period in India, the senior functionaries had to show total loyalty to the rulers, whether at the centre or in the field; but had generally a free hand in administration, so long as the masters were satisfied. In many countries in Europe, the permanent civil service has a strong well- entrenched place, and much of the administration is conducted under its aegis. In some of the extremely well administered European countries, say Switzerland or the Nordic countries, the permanent civil service manages practically the entire administration with minimal political intervention. While the senior civil servants do not change with a new party coming into power, say in UK or in France, the higher bureaucracy in US is a team that is brought in by each president or the governor in the state, as the case may be, with every change in regime. Many of the local functionaries, including chief of police, municipal administrator, district attorney and even some local judges are elected personnel, whose fortunes may change with each election. It is, however, to be noted that the traditions are such that irrespective of their party affiliations, most of these functionaries, especially at the county level (which broadly corresponds to our district), function in an open manner, and generally do not exhibit partisanship in the discharge of their functions. Indeed the system is so constructed that many local decisions are taken through a committee system, where the committee members vote in open
on even day-to-day administrative matters, providing a good deal of transparency. We have inherited the Parliamentary system, as was practised in the UK in the first half of the twentieth century and this is not quite the same as the others mentioned above, each of which is distinctive.
During British rule in India, in the century or so preceding our Independence, governance was primarily left to the Indian Civil Service (ICS), which operated the highest levels of administration. Indeed, from managing the district to controlling the secretariat, both at the state and in the Centre, the ICS was the kingpin of Indian administration. In the remarkable account of the ICS furnished in Philip Mason's Men who Ruled India – the Founders and the Guardians, a history of the evolution of administrative practices in India has been portrayed. By and large, the ICS were benevolent rulers – 'rulers' they certainly were and not mere government servants. Most of them, especially in the early periods of the ICS, were versatile, and had to wear many hats – as soldiers, administrators, judges, scholars, subject specialists, etc. It is true that administration in that period of history was mainly confined to maintenance of law and order, provision of justice and management of the land records; but these were done with a high degree of dedication and effectiveness. Philip Mason somewhere has asked the rhetorical question, 'where in the world, in which period of history, can you find two people from a totally alien race, managing a large territory (say a district), populated with natives of totally different complexion and culture, where the rulers can walk unarmed into the remotest field areas – it is remarkable that two white men, unarmed and without use of force could roam freely in the most interior part of the district in India, with complete safety, and indeed be welcome there.' This is a testimony to the quality of administration prevalent at that time. Just compare this with the present-day picture of the VIP travelling in his own constituency, surrounded by thirty dancing black-cats!
The ICS were no doubt tightly disciplined, and were controlled through the viceroy and the governor, and remotely from Whitehall; but they had a large degree of freedom to do things in the manner they wanted. Lest I may leave this point with the impression that the ICS were a breed of supermen, it is necessary to point out that the service had its share of idlers, passengers and incompetents, and even crooks though not too many of them. The point is more related to the quality of governance – establishment of objectives and ensuring that they were met.
With Independence, a sea change took place in Indian administration. Control moved out of Whitehall to the Parliament in Delhi. The governors were now the chief ministers, all Indians. However, by and large, no major changes were ushered into the overall administrative machinery, management systems, procedures and practices with the advent of Independence; the higher civil services, and indeed all echelons remained the same; for the administrator, it was business as usual. The enormity of the failure at that time to grasp or comprehend the impact of the sea change that took place in 1947, in so far as it impinged on the efficacy of our administrative systems, is hard to imagine. It is astonishing that we thought that the business of administration could continue as it had hitherto done, as if administration were a purely technical process. The founding fathers of our nation had done many things right; but also committed many blunders – one of them was the failure to re-vamp the administrative apparatus, when the management of the country moved from British to Indian hands. The inability to perceive the need to firmly define relationship between politicians and bureaucracy, to draw the lines as it were, was a serious lack of prescience, with enormous continuing costs. After all, in the British legacy, the administration was hands-on, and the real political executive, in London, was remote. In the Independent era, the political executive found the need to be present in every district, indeed in every village, and this was the critical difference.
Let me illustrate with a few stories from my experience, which will throw some light on the evolution of the relationship between the politician and the bureaucrat in Independent India. Madhav Godbole in his book, The Holocaust of Indian Partition published early this century, talks of the critical period immediately preceding Independence, when an interim government headed by Jawaharlal Nehru was in place. He has given a number of instances, where hitherto unbending and straight-forward senior officers of the ICS suddenly started kowtowing to politicians, rendering advice that would be palatable to them, rather than telling them about the reality as it was. Godbole, clearly with some bitterness comments: 'These instances and observations read as if they are of the present state of the Civil Services in the country. Thus a new and corroding administrative ethos had set in even before Independence. The so-called impregnable bastion of the ICS and IP, which represented the "steel frame" of the administration had already started crumbling with the very first in-roads of political interference.'
In the 1950s,* the superintendent of police at Saharanpur (UP), an IP officer, was waiting one evening in the PWD Guest House, along with the district magistrate and other local dignitaries, for the arrival of the then chief minister, Govind Ballabh Pant. The chief minister's car was delayed by a couple of hours (there were no mobile phones those days). Promptly at 7 pm, the SP gave a signal to his orderly, who brought in his whisky and soda and placed them on a table next to the police officer, who then continued to enjoy his regular evening drink. Having converted the situation to a social occasion, he did not consider it necessary to get up or to get the drinks vacated, when the chief minister finally arrived around 8 pm; the SP continued sipping his evening potion. Could one imagine that scene today. Indeed, the chief minister did not refer to the matter at all with the SP, and took it in his stride; however, the SP was summoned subsequently to Lucknow, to be told by the then chief secretary that indeed Independence had come to India, and that the chief minister was the new boss representing the people of UP; that the SP required to show greater respect, at least in form, to his boss!
Morarji Desai,* when he was chief minister of undivided Bombay state (around 1963), on a visit to Surat, received a complaint from the local member of Parliament that the superintendent of police in his constituency would not listen to him, and so should be transferred away. Morarji bluntly responded that his officers were not supposed to listen to the local politicians: 'He is my representative, not yours; I would be upset if he had taken directions from you. He will be transferred if he takes instructions from you.' What a far cry this is from the current practice!
One evening in the winter of 1966,* I went to Saidpur (tehsil town in Ghazipur District, UP), to attend a party given by the tehsil staff at the time of the retirement of Saxena, the tehsildar. Saxena was rendering a near-tearful response to the praise heaped on him by his subordinates. On these occasions, the custom is that nobody senior to the retiree gives a formal speech – his tribute is to be confined to presentation of a bouquet of flowers. During these proceedings, I asked him quietly when he was sitting by my side, 'You have now been in service for about forty years – you have seen many changes in administration; what important change has taken place?' Saxena took a moment to think about the question and his answer was, 'Sir, in those days, tehsildars thought and behaved like collectors and were treated like collectors – today collectors think and behave as tehsildars – and are treated as tehsildars.' This was in 1966. I just cannot imagine what comment Saxena would have come up with today, had he continued on in service.
I recall an encounter in 1966 with Raj Narain,* the firebrand MP, who had taken on the likes of Indira Gandhi, and whose name is enshrined in important constitutional cases that date to the Emergency years. His histrionics were to make him a legendary figure. He had been invited to a Divisional Planning Committee meeting in Varanasi. Soon enough he was on his feet, bare feet that is; his sandals were in hand and he was violently thumping the table complaining about malpractices. Bhagwant Singh, the commissioner, who was chairing the meeting, leaped out of his chair and with his massive frame pinned down Raj Narain, out-shouting him. We were first
petrified, and then amused by the spectacle. The malpractice Raj Narain referred to had to do with the alignment of a new highway that was being constructed. The commissioner wanted to constitute a committee chaired by me, but I had the presence of mind to duck out of it. The superintending engineer who looked into the matter, later told me that all Raj Narain wanted was a minor change in the alignment of the road, to accommodate a crony. An overseer was asked to resolve the issue; he did this with a flick of the wrist on the drawings. The Planning Committee heard Raj Narain later that evening expressing great satisfaction with the planning and development works in the division!
This story relates to 1971*, when I was secretary to the Leather Export Promotion Council, a trade body sponsored by the Government of India. The Leather Development Council was a body constituted under the aegis of the director general of trade and development (DGTD), whose member secretary was Rafael Thanjan, a junior official in the DGTD, and who was highly feared by the industry since he controlled all approvals for technology, imported machinery, etc. One of the members seconded by government to the council was Raj Bhoj, who had earlier been a nominated member of the Rajya Sabha. Raj Bhoj was a political gadfly of sorts, who had in his younger days been a private secretary to Jagjivan Ram, the noted Congress leader. Apparently he had conferred Raj Bhoj with the 'Gold Pass', which entitled the latter to travel by first class anywhere in India for free – it was a privilege granted by the railway minister to a few, on his discretion. Thanjan, as the secretary to the Development Council, had to approve the travel claims of the participants at meetings, particularly the non-officials. Non-official members of the Council were entitled to travel by air and claim reimbursement based on proper certification of actual expenditure incurred. Thanjan told us this story over a drink. A Development Council meeting was held in Bombay, and Raj Bhoj had travelled by train in the same first class coach as Thanjan, both on their outward journey from Delhi to Bombay, and on the return leg from Bombay to Delhi. Raj Bhoj would display his gold pass with a flourish. However, Raj Bhoj's travel claim for participation at the meeting had included the amount of the Delhi – Bombay – Delhi airfare; this when he had not even spent any money for the train travel! There was also the certification appended in the claim form, with Raj Bhoj certifying that he actually had spent the money for the purpose for which it was claimed and certifying the mode of travel. Thanjan said, 'Though I knew that the claim was false, I did not want to get into any political trouble. So I quietly cleared the bill, without any fuss.' I was aghast at this astounding story. Thanjan had failed to discharge his duty as a drawing and disbursing officer; besides, this made him an accomplice and an accessory after the fact. I chided him as to how his conscience would allow him to do what he did. He told me that it was much better that he turned the other way, and ignored any knowledge of the falsity of the claim – after all, Raj Bhoj was a politician, who could get him into trouble by getting a false inquiry initiated against him. This story exemplifies the malaise in our system, a micro-instance of the tragedy of the failure of governance in India. If one multiplies this a million times, one can see how the fear of the local politician has led the civil servant to turn the other way, and willy-nilly participate in falsehood for the benefit of the politician; this will also explain how much of the massive development expenditure gets leaked out.
Goverment In India Page 11