Good Governance: A Distant Dream

The petition comprised five sections: (i) introduction, (ii) background, (iii) some major concerns, (iv) the issues, and (v) the prayer. While drafting the petition, a note was taken of the fact that the court had, in the past, declined to entertain a PIL by Common Cause, an NGO in Delhi, which related only to some matters such as arbitrary transfers. A public interest litigation (PIL) on the non-implementation of the recommendations of the National Police Commission by the central and the state governments too has been pending in the Supreme Court for quite some time. It was therefore felt that the issues pertaining to civil services should be dealt with on a larger canvas of good governance, fundamental rights and the basic structure of the Constitution. As a result, the PIL did not just seek safeguards for retaining the apolitical character and independence of civil services but equally importantly also dealt with improving their efficiency, integrity, morale and public image.

The founding fathers of the Constitution wisely provided, by making provisions in Part XIV of the Constitution, for apolitical and independent civil services, with requisite protection for service matters. These provisions pertain not just to the union but also the states. One of the provisions of the Constitution (Article 312) which was hotly debated and faced considerable opposition, particularly from the provincial governments, pertained to the creation of All India Services (AIS) with recruitment based on all India competitive examination and dual control by the centre and the states. Such a constitutional protection was meant to enable the AIS to operate independently, freely, objectively and fearlessly. It is a travesty that the AIS, and particularly the Indian Administrative Service and the Indian Police Service officers, are the worst sufferers in the last three decades due to the onslaught of the political executives, making a mockery of the erstwhile much acclaimed steel frame of the country.

The years since independence have seen progressive, marked and unabashed interference in the management of civil services and excessive political interference, and arbitrary, unguided and blatant misuse of discretion in all personnel matters, even at the highest levels of bureaucracy. Introduction of self-serving criterion such as “officer enjoying the confidence of the government” for purposes of promotions, postings and transfers has led to highly personalised administration. This is against all precepts underlying the creation of permanent civil services. Rule of law, equality before law and equal protection of law are given a go by in the process. This is not the governance, which was visualised by the Constitution and is an anti-thesis of democratic and accountable government. This is nothing but authoritarian use of power by a democratically elected government. Inevitably, this has led to politicisation of the services leading to the civil services becoming the instruments and handmaiden of the political party in power. Thus, the constitutional protection to civil services has not just been eroded but has been wiped out altogether. This has led to a substantial decline in their morale and the standards of their efficiency and integrity. Public image of a civil servant is now that of a rent seeker and exploiter who has no respect for the rule of law. He has ceased to be either civil or a servant of the society. One noteworthy feature in this behalf is that the situation is equally bad and worrisome at the centre and the states, and irrespective of which political party is in power.

The petition brings out that the dangers of political interference in and politicisation of services and dilution of their independence, objectivity, and freedom to give frank and dispassionate advice were clearly foreseen by the founding fathers of the Constitution. As H M Seervai (1996) has emphasised, “If the Constitution made no attempt to demarcate the respective spheres of the civil servants and ministers, their functions and duties, it was assumed that the British model which we have adopted gave sufficient guidance to the relation between a permanent non-political civil service and the ministers in charge of the various departments of the state… However, the draft Constitution had reached a stage on October 10, 1949 where it was impossible to devise a new scheme for the selection, appointment, transfer, promotion and other matters affecting the members of the civil service.”  As brought out in the reports of a number of committees, commissions and experts, cited in the petition, the constitutional safeguards have largely remained on paper. As in the case of some of the other institutions created by the Constitution, it is necessary to recognise that the weakening of the civil services too has serious deleterious effect on the working of the Constitution.

The petition deals with some major concerns and discusses the issues, which are basic to the very survival of independent, apolitical civil services in the country. These include, among others, personnel matters such as transfers, postings, suspension from service, compulsory waiting, promotions, empanelment, foreign postings, extensions in service, re-employment, post-retirement assignments and so on. Admittedly, there are serious limitations to individual officers approaching the courts for getting relief. These limitations are on the part of both the aggrieved officer – costs involved in approaching the courts and difficulties in establishing the mala fides on the part of the government – as also the courts – the extent to which courts can interfere in day to day administration and substitute their judgments for those of the government. In the process it is the public interest, which suffers. Some systemic and institutional changes are, therefore, necessary to make sure that all such personnel matters are decided solely in public interest according to statutory rules and regulations and on the advice of statutory civil service boards. If, for any reasons, the political executive wants to use its discretion in an individual case and go against the recommendations of the statutory civil service board, it must be incumbent on it to pass a speaking order. In all important matters pertaining to higher civil services, it must be obligatory on the government to lay a statement on the table of parliament/state legislature whenever it decides to over-rule the civil service board.

It is pertinent to note that the petition does not merely ask for protection for the civil services but also deals with some important matters aimed at enhancing the accountability of the civil services, improving their standards of integrity and underlining their commitment to good governance. The petition discusses the two most important issues. First, does the petition involve public interest? And second, is it a fit and proper case for the court to intervene in the domain which has been so far generally considered to be the prerogative of the elected executive? The petition argues that there is overwhelming evidence to show that matters pertaining to good governance clearly involve public interest. This is well recognised the world over and a number of countries are taking energetic steps to provide to their citizens an accountable, people-friendly, sensitive and clean government. Increasing transparency in governance has become one of the prime objectives in a number of democracies. India is still a long way off from achieving these objectives and has not been able to provide even rudimentary framework of good governance in the country. Insofar as the second question is concerned, the petition urged that good governance and apolitical and independent permanent civil services should be declared by the court as a part of the basic structure of the Constitution and an inalienable and intrinsic part of the scheme of the Constitution. Unless this is accepted, the fundamental rights and the basic structure of the Constitution, which the court has held sacrosanct and inviolable, will largely remain on paper. It is only by declaration of good governance as basic to the proper working of the Constitution and apolitical, permanent civil services as one of the instruments for its realisation that foundation can be laid for some structural and overdue reforms in civil administration in the country.

Protection to Civil Services

The final section entitled the prayers contain a number of wide-ranging and important suggestions for providing protection to the civil services in the light of experience analysed in the petition and, simultaneously, improving perceptibly their performance, efficiency, accountability and integrity. These comprise: declaring good governance and permanent and politically neutral civil services as intrinsic to the scheme of the Constitution and part of its basic structure; laying down that officials, before starting their career, in addition to taking the oath of loyalty to the Constitution, should also swear to abide by the basic principles of good governance so as to give unequivocal commitment to the basic tenets of the Constitution. Towards this end, the government servants conduct rules should be completely rewritten so as to be in accord with modern notions of accountability; all personnel matters pertaining to civil services such as transfers, promotions, empanelment, extension of service after retirement, re-employment and so on should be governed by statutory rules and regulations framed after following the procedure of pre-publication of the draft rules and regulations so as to ensure wider consultation with all stakeholders. In view of the large-scale misuse of the power of suspension by some state governments, the rules should, inter alia, provide that suspension of an officer can be effected only after preliminary enquiry and after seeking the advice of the civil service board (CSB); all personnel matters pertaining to All India Services (AIS) and other higher civil services should be the responsibility of statutory civil service boards; setting up of the such boards at the level of government of India (GOI) and the state governments as also at the lower levels with composition suggested in the petition; their recommendations to be binding on the government and when the government over-rules the board, a statement giving reasons therefor should be recorded on the file and placed on the table of the legislature/parliament; whenever cabinet secretary or chief secretary or director general of police is proposed to be shifted peremptorily before completion of his term and/or retirement, the government must get a panel of suitable names for appointment from the central CSB. It must be incumbent for the government to make a selection only from the panel furnished by the CSB; there should be total ban on extensions and re-employment of officers after retirement and appointment of retired officers on statutory bodies and regulatory commissions should be permissible only if there are independent statutory selection boards or prescribed statutory procedures for selection for incumbents for these posts; an officer who is not empanelled for the post of joint secretary in GOI or a secretary in the state government, and for each stage of promotion thereafter, should be retired and this rule should also be extended to field organisations, the central services and state civil services at appropriate levels; there should be a cooling off period of two years after retirement before a public servant can join a political party; annual returns of movable and immovable property filed by officers should be in public domain and put on a designated website by the state governments and GOI; departmental actions initiated against officers should not be treated as secret and the details of these cases as also the progress thereof should be posted on the website; no permission should be required to be obtained by the central bureau of investigation (CBI) or other anti-corruption authorities for commencing anti-corruption inquiries against any officer or for further consequent actions such as carrying out raids; police should have full authority to launch prosecutions in anti-corruption cases. No approval of the government should be necessary for the purpose and any withdrawal of prosecution should be only with the prior approval of the Lok Ayukta and the state public service commission in the case of state government servants and of Union Public Service Commission (UPSC) and the Central Vigilance Commission (CVC) in respect of AIS and the central services. In the states in which there is no Lok Ayukta, the decision of the state Public Service Commission should be final; state and central governments should enact a Public Interest Disclosure Act (Whistleblowers Act) to give protection to bonafide informants against retribution and any form of discrimination for reporting what they perceive to be wrong-doing in their organisations and the act may contain salutary safeguards as in the United Kingdom Act on the subject; the government should enact a comprehensive law to provide that where a public servant causes loss to the state by his mala fide actions or omissions, he should be made liable to make good the loss caused and, in addition, should be liable for damages; central government should frame Rules under section 8 of the Benami Transactions (Prohibition) Act, 1988, for acquiring benami property and enact a law to provide for forfeiture of benami property of corrupt public servants as well as non-public servants; government should take early steps to enact a law for confiscation of illegally acquired assets on the lines suggested by the Supreme Court itself in the case of Delhi Development Authority v Skipper Construction Company (AIR 1996 SC 2005); the Prevention of Corruption Act, 1988, be amended to provide for confiscation of the property of a public servant who is found to be in possession of property disproportionate to his/her known sources of income and is convicted of the said offences and in such a case, the law should shift the burden of proof to the public servant who was convicted and the proof of preponderance of probability should be sufficient for confiscation of property; a comprehensive examination of the corpus of administrative jurisprudence be undertaken to rationalise and simplify the procedures of administrative and legal action so as to re-establish the accountability of a public servant and to ensure that while honest and efficient public servants are given the requisite protection, the dishonest are not allowed a long rope; the Official Secrets Act, 1923, should be repealed and replaced with a law with more restrictive scope confined to certain matters such as national defence, national security, law and order, investigation of crime, external relations and atomic and trade secrets, etc, and pending such an enactment, the existing law be amended to provide at least for public interest as a defence by a person charged under the Act; the Police Act, 1861, be replaced by a more modern, forward-looking enactment; a statutory national authority, with autonomy and independence, be established to pursue the cases pertaining to the nexus between criminals, bureaucrats and politicians along the lines of the recommendations of the committee on reforms of the criminal justice system[GOI 2003]; all state governments and the central government be directed to bring out annual reports on the management of civil services to make available relevant information in a consolidated form for use of stakeholders in society.

These reports need to be prepared under the guidance of a multi-disciplinary team comprising, among others, management experts, academics, and other prominent persons in public life to focus attention on issues pertaining to civil service reforms and improving the governance in the country; a standing statutory National Civil Service Commission (NCSC) may be appointed comprising five persons of outstanding merit from diverse sections of society to oversee the functioning of the civil services in the country and suggest ways for improving the standards of their performance, efficiency, productivity, accountability and transparency. The NCSC should have only a skeleton staff of its own and may make use of consultants and experts on a contract basis for its studies. The NCSC should bring out an annual report and special reports, as may be necessary, and these be placed on the table of parliament/state legislatures, as and when they are received. This long list of prayers essentially comprises four submissions, namely, to declare good governance as a part of the basic structure of the Constitution and to also declare that apolitical and independent civil services are an integral part of the scheme of the Constitution, providing statutory safeguards for personnel matters, promoting integrity and efficiency of civil services, and surveillance over them by the civil society.

The petition forcefully argued that fundamental rights enshrined in the Constitution cannot be safeguarded unless civil services are given independence and are made accountable for their actions and inactions. In Ajay Hasia v Khalid Mujib (AIR 1981 SC 487 at 493: (1981) 1 SCC 722), Bhagwati, J, has observed, “It must be remembered that the fundamental rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation.”

The petition has underlined that the basic structure of the Constitution which has been held inviolable by the Supreme Court too would remain on paper unless the civil services are protected from the onslaught of excessive politicisation and political interference. This is evident from the half-hearted manner in which some of the basic features of the Constitution such as the rule of law, conduct of free and fair elections, rights of minorities, secularism or welfare of weaker sections of society are implemented in the country.

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. Time has come to declare right to good governance as a fundamental right under Articles 14, 19 and 21 of the Constitution. There is some merit in making it explicit as was done by the Supreme Court in respect of a number of other rights such as right to privacy, right to information, freedom of press, environmental protection and so on. In Maneka Gandhi (AIR 1978 SC 597: (1978) 1 SCC 248), the landmark case which initiated the process of expansion of the scope of Article 21, the Supreme Court has observed, “The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content by a process of judicial construction.”

In Unni Krishnan J P v State of Andhra Pradesh (AIR 1993 SC 2178: (1993) 1 SCC 645), the Supreme Court has even enunciated the doctrine of implied fundamental rights. The court has asserted that in order to treat a right as fundamental right, it is not necessary that it should be expressly stated in the Constitution as a fundamental right. Political, social and economic changes occurring in the country may entail the recognition of new rights and the law in its eternal youth grows to meet social demands. This is evident from the fact that by interpretative process, several new fundamental rights have been recognised by the court in addition to those which have been expressly stated as such in the Constitution. These include, among others referred to earlier, right to livelihood, right to medical care, right to shelter, and so on. In Francis Coralie (AIR 1981 SC 746 at 753: (1981) 1 SCC 608), the Supreme Court has declared, “We think that the right to life includes the right to live with human dignity and all that goes with it.” In State of West Bengal v Ashok Dey, the Supreme Court has held that, “The expression ‘personal liberty’ in Art 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of these have been raised to the status of distinct fundamental rights.” This is further borne out by the observations of the court in Pathumma v State of Kerala, (AIR 1978 SC 771: (1978) 2 SCC1), that in interpreting the Constitution, “the judicial approach should be dynamic rather than static, pragmatic and not pedantic, and elastic rather than rigid” [Jain 2003].

As opposed to the doctrine of exclusivity and treating each right as a distinct and a separate entity, the Supreme Court has recognised that fundamental rights are not all distinct and mutually exclusive and each freedom has different dimensions.

Ensuring Good Governance

The fundamental rights play a noteworthy role in the area of administrative law due to the phenomenal increase in the functions, powers and activities of civil administration, particularly in a welfare state. A large amount of discretion has to be inevitably left in the hands of administration. This has meant close scrutiny of both the administrative laws as also the procedures to ensure that they do not bestow arbitrary and unregulated discretion in the hands of administration. This brings out the close inter-relationship between the fundamental rights and good governance. Good governance requires, among others, sound, forward-looking and enlightened constitutional framework, democratic governance, independent judiciary, freedom of press, and independent, apolitical, neutral and fearless civil service owing allegiance to the Constitution and the rule of law and not to the political party in power. While a great deal has been done, debated and translated in reality in respect of the first four items, the last named item pertaining to the civil services has been totally lost sight of and has often been pushed under the carpet. And the disastrous consequences are there for all to see. It must be realised that independence of civil services is no less important or significant for the working of the Constitution than the independence of the judiciary.

It is not enough to declare good governance as a fundamental right and independent, apolitical, neutral and fearless civil services as one of the instruments for its realisation since not all fundamental rights are a part of the basic structure of the Constitution. It is necessary to declare the right to good governance as a part of the basic structure of the Constitution. The doctrine of basic structure can strictly be invoked only when any amendment of the Constitution or legislation strikes at any of the basic features of the Constitution. But, over the years, the Supreme Court has pronounced several features of the Constitution as a part of the basic structure. In the Indira Gandhi case, Chandrachud, J, has held that the proper approach of a judge, who is confronted with the question whether a particular facet of the Constitution is a part of the basic structure, is to examine in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country (emphasis added) [Sathe 2002].  In Indra Sawney v India ((1992) 22 ATC pp 385, 670 (para 398)), Sawant, J, has stated, “Constitution being essentially a political document has to be interpreted to meet the felt needs of the time. To interpret it ignoring the social, political, economic and cultural realities is to interpret it not as a vibrant document alive to the social situation but as an immutable cold letter of law unconcerned with the realities”. Justice V R Krishna Iyer has emphasised that, “The sweep and scope of the basic structure is still moot” [Iyer 2003]. 

The petition did not ask the court to rewrite the Constitution in any way. It prayed that the protection given to the civil services by the Constitution which has become a dead letter should be made a reality and the government be directed to put in place statutory safeguards for the purpose. The petition also requested the court to make the right to good governance which is implicit in various provisions of the Constitution explicit as has been done by the court in respect of some other fundamental rights referred to earlier. Over the years, the Supreme Court has enunciated important constitutional doctrines such as the basic structure of the Constitution, enlarging the scope of fundamental rights, bringing about greater coherence between the Directive Principles of the State Policy and fundamental rights and so on. The decision of the Supreme Court in the Bommai case gave an altogether new interpretation to Article 356 of the Constitution and made it practically impossible for the central government to invoke the provisions of this article indiscriminately as in the past.

Structure of CBI

In Vineet Narain v India, the Supreme Court thought it fit to go into the constitution of CBI and its control mechanism. The court rightly held that, “No doubt, the overall control of the [investigative] agencies and responsibility for their functioning has to be in the executive, but then a scheme giving the needed insulation from extraneous influences, even of the controlling executive, is imperative” ((1998) 1 SCC 226, 243). In this case, the court went into the structure of the CBI and suggested procedure for selecting its director. The court monitored the proceedings through what was called “continuing mandamus”. According to S P Sathe (2002:145), “in laying down the structure of the CBI and stating how the vigilance commissioner should be appointed, the court doubtless exceeded its powers. But this judicial excessivism was received well. Critics of judicial activism have often argued that the Supreme Court and the high courts have, in recent years, pronounced a number of decisions on matters which can be said to fall within the purview of the executive. As compared to this, what the PIL in question asked for was by no means exceptionable since the petition basically contained two submissions: One, it sought the intervention of the Supreme Court to direct the government to put in place statutory and other safeguards for translation of the protection given by the Constitution to the civil services in general and the AIS in particular. Second, equally importantly, the petition sought to make the civil services accountable and effective instruments of good governance by perceptibly increasing their integrity, efficiency, morale and public image. The systemic and institutional changes suggested in the petition would have greatly strengthened and perceptibly improved the working of the Constitution and eventually even led to a reduction in the workload of the judiciary.

Over the last 50 years, a number of committees and commissions have applied their mind to the issues critical for the proper management of civil services. Unfortunately, their recommendations have fallen on deaf ears. Neither the state governments nor the central government, irrespective of which political party was in power, has taken any interest in reforming the system. In fact, there is a secular and all-round deterioration in governance at all levels. Therefore, as a last resort, this comprehensive PIL was filed in the Supreme Court. In view of the several constitutional issues and matters of serious public interest brought out in the petition, the petitioners had hoped that it would be admitted for substantive hearing and notices issued to the central government and all state governments. Unfortunately, these expectations have been belied. Maybe we, as a country, have still not reached the nadir of governance and considerable further downhill journey still remains, in spite of the slogans of ‘Mera Bharat Mahan’ and ‘Shining India’.

References