Wednesday, December 10, 2014

Perils of Executive Decision Making

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.

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.      

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.

[1] Constituent Assembly Debates, Vol 4, 21st July 1947
[2] (2013) 8 SCC 71
[3] (2007) 4 SCC 566
[4] (2009) 8 SCC 617

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