EXECUTIVE DECISION
MAKING
DIAGNOSIS
1. The
Civil Services' Structural Framework
The Indian Civil Services have come
down as one of the major wholesome contribution to India and its
administration. The ICS of the British times morphed into IAS and IP into IPS.
Art. 312 of Constitution of India (henceforth, the Constitution) made a provision
for All-India Services common to the States and the Union, and various Central
Services were carved out by way of Acts of Parliament, or under Art. 309 of the
Constitution. One of the greatest acts of political and administrative maturity
was Sardar Patel's decision to retain the Services bequeathed to us vide S. 240
of the Govt. of India Act, 1935. I need not labour on the warp and weft of the
Services as all of us are aware of it, but the initiation of empanelment system
has greatly diminished the integrating features of the steel framework of the
country. Added to that is the gradual change into development orientation of an
independent country from the regulatory orientation of the Services in the
colonial era.
2. The
Public Expectations
After
India gained independence and the embers of the fires lit by mindless violence
and bloodshed died down, a new era of expectations began. The cycle of
expectations from public is endless. However, from all the available evidence,
the transformation of the Civil Services into a true public service role has
been far more difficult than envisaged at the dawn of freedom. The political
leadership chose a mixed economy model with the Public Sector commanding the
heights of economy. The role of public servants in this scenario was crucial.
As it transpired, the senior Civil Services officers of the ICS were not
schooled in the new syllabi. They took much greater time to adapt than the
public would like. Initial years after independence were therefore spent by the
Civil Services negotiating these crossroads. After the sixties and the debacle
in India's China war , the years of doubt began, which went on till after the
Emergency. After the country had regained a bit of confidence in the wake of
the vivisection of Pakistan with a resounding victory, the JP movement and the ensuing incarceration
of democratic institutions left a trail of doubts among the youth and the lay
public which are yet to be erased. In today's situation, with most of the
institutions becoming assertive and seeking to control (as opposed to regulate)
the Executive through various straight and not-so-straight methods and
stratagems. One also saw during this period of coalition politics a certain
loss of confidence in the Executive leading to a proliferation of institutions
for quasi-judicial and quasi-executive work. Most of these institutions would
go on to attempt a course in which they could make their presence felt and what
better than doing turf-building with the obkective of having the Executive
dance to their tune. The plethora of regulatory institutions and Commissions
are symptom of this disease where Executive fights shy of taking
responsibility.
3. The
Political Executive's Expectations
When
the first elected governments took office in 1937, the steel frame was
completely protected - by the Governor in Provinces and by the Governor General
in the Federation. Federation never had its elections due to the outbreak of
the 2nd World War, but the Ministers were working directly under the Governor
who had untrammeled power to refer any of the Ministerial decision to the
Viceroy. The clamour for Dominion status was sought to be silenced by this half
baked measure. The two and a half years of native ministries in the 11
provinces of British India saw the ICS officers working at cross purposes with
the Ministers and the experience of the Political Executive was not very happy.
The ICS and IP had their loyalty to the British Crown through the Secretary of
State and not to the Provincial Government. This experience of the public
servants was at the back of their mind when the matter was debated in the
Constituent Assembly. The proposal for constituting All India Services was
first put forward by Pandit Jawaharlal Nehru led Committee on Advising
Constitutional Principles to the Constituent Assembly[1].
In spite of many misgivings, it was Sardar Patel who defended the impeccable
credentials of the Civil Services in this Committee and that's how we have the
present IAS to which we proudly belong.
The
intermingling between the Political Executive and the Civil Services was very
rule driven in the beginning as would be expected at the dawn of a new era with
idealistic politicians and a Civil Services schooled in the tough school of
Rule of Law. There was not much of Media to contend with. The higher Courts
were busy interpreting the Constitution, and the CAG viewed his role as
principally as an accountant. In an environment of shared poverty, the
opportunities for personal aggrandisement were too far and few between.
Over
the years, the probity environment has deteriorated. The quality of Political
Executive had been on a terminal path of decline until arrested by 2014
mandate. Political Executive became more and more powerful and arbitrary
vis-à-vis the Civil Services and this necessarily had an impact on the probity
and fearless giving of advice by the bureaucrat over the years.
After
the opening up of economy, we had the phenomenon of crony capitalism sneaking
through the front door and the back door, and this is what has led to the
windfall numbers we have begun to hear today. Coupled to the turf building
exercise of the proliferating institutions, old and new, and negligent
Government towards the impact the few bad eggs were having on the overall
environment of probity and concomitant deleterious effect on the honest
officers, we have also had a new era of Judicial activism. This activism has
altered certain fundamental principles of culpability and liability. We have
had a creeping invasion of concepts of 'presumptive liability' and engrafting
'vicarious liability' into criminal law where it doesn't belong by law as
enunciated under Art. 141 of the Constitution any number of times by the
Hon’ble Supreme Court of India itself.[2]
So the
interplay between the Political Executive and Civil Services has definitely
deteriorated in respect of the latter. In the States, it is particularly bad
and skewed against the upright officers. Even in the Union,
Things
have deteriorated sharply, what with the unwillingness of the governments to
remove the anomalies in the law under which even honest officers are getting
victimized by overzealous agencies.
So the
entire question has to be framed in this context. There seems to be a better
appreciation of the role of civil servants since the new government has taken
charge, but the anomalies in rules and laws used to flog sincere officers still
remain on the statute book.
4. The
Accountabilty Paradigm
a.
Vigilance
The Chief
Vigilance Officers are there at the Union and in most States. While their
existence is unquestionable, their understanding of what constitutes misconduct
is very very questionable. While the Hon’ble Supreme Court of India lays down
that negligence
simpliciter and Error of Judgment are not misconduct[3].
Day in and day out I get cases with casually framed charge-sheets indicting
people for technical violations without a shred of mala fide, and at times not
even that. Unfortunately, our Law of Torts is so lax and procedurally so
complex that a man cannot claim damages from the government which puts him
through so much harassment for no fault of his.
b.
Audit
The CAG ceased to be merely the auditor of govt.
accounts as ordained by the Constitution, when the UOI Law Deptt. and Parliament negligently allowed a set of Rules
framed by CAG himself giving sanctity to Performance Audit. We fully well know
that the officers of CAG have no experience in conducting performance audit and
the same accountant who audit our accounts are now conducting performance
without either having the knowledge or the experience for it. This is giving
rise to piquant situations, and with the increasing tendency of the Media to
highlight CAG's report as evidence of crimes even before they are put up before
PAC, is complicating the situation. Even though it is a manifest contempt of
the legislature, the noise gets the better of light.
c.
Judiciary
Judicial overreach is a fact of life and we need a
separate session for it. The difficulty arises when the Courts themselves
violate the principle of Stare Decisis every
other day, and hand out increasingly arbitrary decisions, life really becomes
difficult for the officers. I have often wondered in the past 5 years whether
it is really worth taking the pains to reach out and help out. In the cynical
times that we live in, the slightest technical slip could land an officer into
trouble with no reference to his intention for doing the good Samaritan act. For
bringing a technology not available in India, I had to face overzealous and
sadist police officers. I got through with my knowledge of law and the
precautions I had accordingly taken, but I am absolutely sure someone else in
my shoes would have landed in a soup.
d.
Lok
Ayukt/ Lok Pal
This is one more level of accountability one has to
put up with. By the way, I once got a notice from Lok Ayukt because as
President of Rajasthna Cricket Association, I refused to give complimentary
passes to his staff, though he had been given his quota. Such are the caprices
of authority in India. Sadly, officers have no recourse to justice in such
cases.
e.
Legislature
(Questions/Committees/Motions)
This is our Constitutional scheme, but when the level
of legislators declines, some of these can be used to harass an officer who
doesn't give in to extra curricular requests. Then there is the ever present
threat of breach of Privileges. One lady police officer was sentenced to a
months' imprisonment without following the natural justice doctrine for the
supreme offence of not being courteous to the Chairman of a Assembly
Committees.
f.
Media
I would like to see an officer who can handle
obstreperous media without giving offence. In Rajasthan, we have some media
moghuls who openly demand favours, and run scrolls if you don't oblige. Nobody
in the govt. helps them. In fact, my crusade to reduce the Court Fee on
libel/defamation suits by not treating them as property suits has been going on
for more than 15 years, but to no avail. Even a suggestion to charge the Court
Fee post-decree has fallen on deaf ears.
g.
RTI
This is NGO's gift to governance. Try negotiating in
the middle of the street with a hundred people watching. With all the
Information Commissioners appointed who need to demonstrate their relevance,
governance has come to a halt. People are mortified at expressing positive
opinions on note-sheets
h.
Human
Rights Commission
While protecting human rights, it thinks nothing of
violating their own mandate. Problem of overreach and turf building
i.
Women's
Commission
j.
SC/ST
Commission
k.
Informal
Pressure Groups
l.
Prevention
of Corruption Act, 1988
The misuse of PC Act is the single biggest threat to
functioning of officers, particularly positive-minded officers. As per the law
laid down by the Hon’ble Supreme Court of India, the oft-misused Section
13(1)(d), unless wrongful gain is proved, an error of judgment in determining
public interest in discharging one's duty cannot be termed as criminal
misconduct[4].
Yet, Siddharth Behuria is facing a prosecution for implementing a Cabinet
decision, and PC Parekh is being indicted by a Court in spite of prosecution
letting him off, for alleged arbitrary decisions. There is no case that he made
any wrongful gains for himself. The sheer wording of S. 13(1)(d)(ii) of the PC
Act, 1988 lends itself to so much arbitrariness that no one wants to do
anything positive for the fear of being hauled for the nebulous crime of
abusing his position to obtain pecuniary benefit for others.
PRESCRIPTIONS
1. Training
of Watch Dogs
The
accountability enforcing institutions are usually totally oblivious of
administrative functioning. I know a few judicial officers who do not know the
role of notings in reaching a decision. For them, overruling a negative noting is
usually a presumption of favouring someone. The Anti-Corruption police
establishments are similar. Coupled with our draconian bail regime, they simply
create a terror psychosis among others, which may be good for their ego, but is
disastrous in government functioning. Politicians do little to change the law
to afford protection to genuine work, and governance suffers. Proper training
could go a long way in addressing mistakes of oversight
2. Training
of Civil Servants
Every
Civil Servant needs to train himself to make sure that all his actions are in
consonance with requirement of the accountability regime he has to deal with.
There will be difficulty, but the officers have to continuously train
themselves to deal with it. An elementary knowledge of law is always helpful.
I, along with my lawyer wife, am working on a compendium of essential case-law
which every civil servant ought to know. One does not have to become a legal
expert but one must know what can land you in unnecessary trouble and also how
to continue doing positive work without falling foul of some overzealous
auditor or judicial officer. Just have to work a little harder.
3. Training
of Political Executive
This
may the most difficult prescription. But there is silver lining. With the spate
of graft cases against senior political leaders, there may be a window of
opportunity to train the political bosses.
4.
Training of Media
This may be the easiest of all. Large number of
reporters are just greenhorns and have no idea of government functioning. A lot
of reporting is misinformed reporting. Helping to train media personnel in the
functioning of govt. and governance methodology may eliminate a lot of
vexatious reporting.
5. Exposure
of Judicial Officers in Civil Services
This
ought ot be on the same line as the IAS officers' training module. Every
officer of the Subordinate Judiciary ought to work as an SDO for a period of
one year to be able to fully appreciate the functioning of administration.
Judges of the Higher Courts also need to be exposed to practical working of administration.
This will eliminate a lot of Judgments which get passed due to inadequate
appreciation of the nature of executive functioning.
6. Accountability
of Watch-Dogs - Strengthening of Torts Law (Defamation/Libel/Malicious
Prosecution)
India must be the only country in
the G-20 which does not possess a functioning framework of Torts. Ubi jus ibi remedium (Where there is a
right, there is a remedy) is the Latin maxim on which the entire foundation of
English Common Law, which in turn forms the basis of Indian Civil Law, rests.
Law of Torts, or the law of damages is the essential ingredient of this
philosophy. Every civilized and advanced country has a robust law of damages
for wrongs committed. However, till date not one State, nor the Union, has
activated the Entry 8 of Concurrent List, viz. 'Actionable Wrongs'.
Arbitrariness of Police and Judicial officers goes unrequited in this system.
If a person was detained in custody in an advanced country and later found
innocent, he would get millions of dollars in damages and the persons
responsible for this outgo would likely face serious music, and part of their
salaries would go towards this pay-out. The Police and Judiciary in India are
terribly casual and remiss due to absence of such a provision. The prosecutors
who routinely ask for custody for flimsy reasons would think ten times before
asking for frivolous custody.
CONCLUSION
Thus the challenges in executive
decision making are many, but they are neither insurmountable, nor do they give
any cause for us to become negative. We also need to sort out the habitually
negative officers in the Civil Services and weed them out ruthlessly. They have
had it all too easy doing fault-finding. These are the people who bring infamy
and opprobrium on the Civil Services. They are, however, often the darlings of
media, judiciary and even the auditors. This fundamental dichotomy lies at the
heart of the crisis in Executive Decision Making. Let us address it with guts and
gusto.
