The Indian Bureaucracy – Foundation, Functioning and the Challenges Ahead – An Insider’s View – Part II
The recent orders of National green tribunal as reported on 17th Nov 2016 banning demolition and construction in Delhi as a major cause of air pollution and directions to builders to bear all consequential effects of air pollution which is to be enforced by the Delhi government will bear this out. These powers are conferred largely on civil servants borne in what OECD defines as “Senior Civil Service”. Thus, an individual Civil Servant who has to exercise such power is required to take decision on the merits of the case only and it is a cardinal principle of administrative law and jurisprudence that his order should bear his judgement uninfluenced by any other extraneous considerations in the public interest and is therefore it’s his bounden duty as any deviation is viewed as an act of impropriety and therefore opposed to public interest. Thus it is as much an ethical as it is an administrative issue for a civil servant.
The constitutional basis of this role of the civil service as the effective operative part of the government system is derived from the historical experience of autocracy in pre-modern monarchical state that a system of checks and balances is the best way to avoid concentration of power and essential for democracy and liberty of the taxpaying citizens. Thus, the legislators are debarred from executive functions same and except those who form the council of ministers on the principle that a legislator must not hold an “office of profit” under the government which will adversely affect his impartial role as a law maker in the public interest. The recent appointment of parliamentary secretaries by Delhi Government has been hit by this doctrine of office of profit. The reader may find it useful to follow this case. Hence a neutral, apolitical, permanent, professional civil service is considered appropriate as “the agency” for execution of laws and policies. The practical idea of “Checks and balances” is also extended to the judiciary as for an instance, the present “Collegium” system for appointment of judges to the High Court’s and Supreme Court is not provided in the constitution as it is the outcome of a “Judge made law” derived from the two orders of the supreme court and opinion of the CJI on a Presidential reference under the Artice 143 of the constitution in this regard . However, as in the celebrated Shah Bano Case, the orders of the Supreme Court could be negated by an act of parliament, just as an executive order could be challenged in the court. The petitions presently pending before the Supreme Court and the high Court’s on “demonetisation” indicate how the doctrine of separation of powers operates in practice. One must note that this critical role of bureaucracy in the overall scheme of democratic governance, is not only understated but inaccurately mentioned as evident from use of words like Babudom or Babu in India while in mature democracies, on the contrary concerns are often expressed about what may be called bureaucratic “Overstretch”. Thus, Paul Deschand , famously said, “France is not a democracy but a bureaucracy, it is the corps of functionaries who do the real work of governing”. The Minister who heads the bureaucracy is by no means its master. On more than one occasion, a French Minister has discovered that fact to his own embarrassment. The relationship between the political executive, the Minister incharge of the department in a parliamentary democracy like India has been succinctly put by W.B. Munro,
“The former provides the democratic element in the administration; the latter the Bureaucratic. Both are essential – one of them to make the government popular; the other to make it efficient. And the test of good government is its successful combination of these two qualities.”
This is the accepted view in the West about the role of bureaucracy in a democracy. Wilburn therefore argues that “Democracy may be interpreted not as government by the people but as with the consent of the people, with professional making most of the decisions. This is a subtle modification of the famous statement of Abraham Lincoln on democracy as a form of government that is, “of the people, for the people and by the people”.
The challenges ahead for the Indian bureaucracy are inherent in a perception among the Indian people that “ governance is the exercise of economic, political and administrative authority to manage a country’s affairs at all levels” and hence the emphasis of the Prime Minister Modi on Good Governance as a means to develop the society and economy. These can be divided into three broad heads – “Regulatory, human development and consolidation of nationhood”.
Regulatory administration is basis of a modern state as the very first condition of economic and social development, is to put in place a system of law enforcement that will ensure in Adam Smith’s words, “enforcement of contractual obligations and maintenance of peace and order” and the latter being the pre-condition without which economic activities cannot expand on regular basis. Economic development is in fact both a ‘product’ and a ‘process’, it is a product or outcome measurable in terms of GDP and a process that has to be inclusive because every citizen is a taxpayer of direct or indirect taxes, who also happens to be a consumer, investor and participant in a production or service related activity.
The concept of Rule of law and equality before law as embodied in the Article 14 of the constitution is not only basic to the scheme of fundamental rights and founded on the practical imperative of inclusive economic growth. The secular character of the State is also derived from the principle of rule of law. This foundational value of a modern state which incidentally does not exist in Pakistan because it’s Constitution provides for a “Shariat Court”, over which even its Supreme Court has no jurisdiction. It is thus a precious heritage for us which must be preserved, defended and protected from divisive forces formed on the basis of race, religion, caste or language. This is essentially a law enforcement issue and a Civil Servant is duty bound to ensure that justice delivered is not only “just and fair but also appears to be just and fair” and while nobody is “above law”, nobody should be “below the law”. The latter situation unfortunately is often experienced by the poor and the disadvantaged especially the Scheduled Castes, tribes and backward sections. Therefore cultivation of sensitivity to the problems of those groups and prevention of atrocities and discrimination against SC/ST people by prompt and efficient execution of the State Policy of Zero tolerance of practice of untouchability and atrocities against SC/ST people is a major challenge before bureaucracy.
Rule of Law is not just a philosophy but a guide to administrative action which must be evident from the strict observance of “procedure established by Law”, as any breach of procedure amounts to violation of procedural rights of citizens. Respect for all faiths and human rights are interrelated and concern for violation of human rights and its prevention is a major challenge before bureaucracy as repeatedly emphasized by the National Human Rights Commission. This calls for a change of outlook, that is not to view such violation as only criminal cases but its long term social implications as such violations undermine the faith of the affected people in the system of democracy and governance and its consequence is alienation which obstructs inclusive growth. Therefore, stringent action in case of human rights violations especially in dealing with ‘communal disturbances’ or ‘ethnic riots and violence’ actually strengthen National Unity and creates confidence in the State and its Institutions. Thus generation of such feeling of security among the diverse people is a major challenge that requires a mindset open to examine all public issues including disaffection from different angles in order to develop a strategy for restoring peace and confidence in the State. Such a positive attitude founded on the firmness and empathy for the masses on the fact of the Civil Service is a professional requirement to deal with Left Wing Extremism in Central India, Ethnic insurgency in the North-East, Political Islam and terror in parts of Southern India and elsewhere.
The short point is that the extremist groups of all hues are to be treated as misguided citizens who could be made to see reason and the population from which the extremist have grown are not to be branded as hostile but treated with empathy and respect as the object of all counter-insurgency measures is to win the ‘hearts and minds’ of the people by positive development and peace initiatives.
With the increase of women’s participation in the workforce particularly in urban areas, gender issues like sexual harassment of women at workplace or at public space have emerged as a major task before the administration, and consequently increase the need to female staff in law enforcement agencies; and that requires creation of work environment conducive to women’s functioning and new work culture with greater emphasis on tact and empathy.
Regulatory administration is judged strictly by its performance. In administration of criminal law, the rate of conviction in criminal cases is one such efficiency criteria and to improve this quality of investigation, high quality charge sheets are critical for securing convictions which alone could produce a “deterrence effect” in the society. The cases of deaths of under trials in police or judicial custody have in recent times, led to severe criticism and as these reflect poorly on the system administration of criminal justice as a whole, systems must be put in place to eradicate this altogether and constitute a major challenge before the Civil Service.
The public perception that the corruption is wide spread and corrupt practices are commonly adopted even at senior levels is the outcome of experience of general public with the administration and the officials in their daily life interface. Though complex and varied in its manifestations, corrupt practices are basically of two types – ‘Speed Money’ for expediting actions on matters which at any case were legitimately due such as issuance of ration cards, railway reservation or Passports. Second, is to obtain a favour, an out of turn allotment of a facility or a supply contract which is within the powers of an official to grant in exercise of some discretionary powers that the official might enjoy under the ‘Rules’ and that he is willing to abuse for a consideration. In all these shady deals there is a ‘hand that gives as there is a hand that takes’. Certain steps have been taken by the government for deterrent action against the corrupt including confiscation of ill-gotten wealth and immovable property and also to reduce the scope of bribery by systemic improvements in delivery of public service at “cutting edge” level where the citizens have to necessarily visit Govt. offices, as for instance for matters relating to registration of property, obtaining certified copies of land, Excise and Income tax, electricity connections etc. by adoption of ‘Information Technology’ enabled systems. Computerisation of land records in all states in phases carried out with assistance from the centre has been one such success story which has to a great extent relieved the problems of the people faced earlier at Revenue Circle Offices. As a result of anti-corruption drive, India’s rank in Corruption Perception Index prepared by the Transparency international, though still very low, has improved from 95th in 2011 to 76th in 2016. The one consolation is that China is below India holding 83rd position.
Combating corruption and improving the image of public office and service will remain a major challenge as much will depend on the ability of the Senior Civil Service to first put in place improved systems to meet demands for public service promptly and efficiently which calls for capacity to innovate at the level of individual head of the office and supported by the Department and second to motivate the sub-ordinate staff and juniors to fall in line in the effort to free the offices of corruption to build an image of efficiency with integrity. This will involve ‘ethics teaching’ in practical terms which the senior civil servant will find mentally and spiritually rewarding as it could give a new meaning to his/her life. In the backdrop of the Prime Minister’s commitment to protect the honest and upright officials and the measures initiated to amend the provision of Sec 13 of the Prevention of Corruption Act, the drive against corruption will remain a major challenge before the Indian bureaucracy as the credibility of the State is built on probity in public life.
- S.P Gupta Vs Union of India 1981
- The Supreme Court Advocates on record Association Vs UoI 1993
- The Presidential reference to the Supreme Court over the meaning of the term ‘Consultation’ under Art 143 and the CJI’s opinion thereon.
 (Chapter – VIII, The Government of Europe, Macmillan, 1938)