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Wednesday, December 11, 2019

Unshackling the guillotine


KS NARAYANAN | Issue Dated: November 17, 2013, New Delhi
Tags : Ashok Khemka | Durga Shakthi Nagpal | Supreme court | PIL | CBI | |

The civil service, the country's steel frame and its backbone has for long been held to ransom by their marauding political masters. They have been kicked around when inconvenient, tossed out if not willing to follow extra-constitutional oral orders and made to bend and crawl to suit whims and fancies. Happily, all that could be changing. A judgment by the Supreme Court last week paves the way ahead to unshackle officers of the elite Indian civil services from their perennial master-servant relationship with the politician and is a crucial step ahead to improve governance.


A Supreme Court bench comprising Justice KS Radhakrishnan and Justice Pinaki Chandra Ghose decreed in a judgment that civil servants shall not act on verbal orders, cannot be transferred frequently, and are entitled to a fixed tenure. The bench was hearing a Public Interest Litigation  (PIL) (TSR Subramanian & Ors. v. Union of India & Ors. WP(C) No. 82/2011) filed by 83 former top bureaucrats, including CBI officials. To further insulate the bureaucracy, the apex court directed the Centre, state governments and union territories to constitute within three months a civil services board comprising high-ranking serving officers with the cabinet secretary at the centre and chief secretary at the state level to guide and advice on all service matters, especially transfers, posting and disciplinary action.

Even though it has a long history, during the last few months the country has been mute spectator to the sufferings and humiliations of many upright and honest bureaucrats.

Consider this:-

• Durga Sakthi Nagpal batch IAS Officer of Punjab Cadre Targeted: Suspended from the post of sub- divisional manager (Sadar) in Gautam Budh Nagar, Uttar Pradesh. She was allegedly punished for taking on the sand mafia but reinstated nearly two months later.





• Ashok Khemka, 1993 Batch IAS officer of the Haryana cadre. He was transferred 43 times in a two-decade-long service. Khemka hit national headlines after he was transferred for cancelling an allegedly illegal land deal involving the Congress president Sonia Gandhi’s son-in-law Robert Vadra and realty major DLF. There is an increase in the number of such cases. For instance EAS Sarma, a 1965 batch IAS officer from the Andhra Pradesh Cadre, has been transferred 26 times in his 35- year career while Manoj Nath, 1973 Batch IPS officer of Bihar cadre underwent 40 postings in 39 years.






Highlighting the issues that plague the Indian civil services in his book Two Scores and Ten, My Experiences in Government G V Ramakrishna, an outstanding former bureaucrat writes: “It has become a vicious cycle. When a government transfers dozen of secretaries, district magistrates and top police officers in one sweep and appoints political favourites in key positions and  expect them to implement all kinds of orders, legal and  illegal (and they are complied with) the integrity and independence of the civil service is compromised. Non obedience attracts harassment…” Ramakrishna wrote his memoir in 2004. It’s been a decade since then but very little has changed. However with the judgment there is a glimmer of hope for bureaucracy, citizen and for democracy in India.

In their study titled ‘Traveling Agents: Political Change and Bureaucratic Turnover in India’, Lakshmi Iyer of the Harvard Business School and Anandi Mani of Warwick University analyzed the relationship between politicians and bureaucrats using data on the complete career histories of over 4,000 IAS officers between 1980 and 2004. “Despite strong constitutional provisions for the insulation of bureaucrats from politicians in India, we find that politicians use a novel mechanism to motivate and/or exert their authority over bureaucrats: frequent transfers (re-assignment) officers across posts. In our data set, we find that officers are transferred, on average, every 16 months. Both, the frequency and the alleged politicization of bureaucratic transfers have become a major public policy concern in India,” they noted.
Welcoming the Supreme Court directions T S R Subramanian former Union Cabinet Secretary during 1996-1998 and the lead petitioner is upbeat, “The highest court of the land has, for the first time, recognised the problems faced by the country’s civil servants, and our faith in the strength of democracy has been reaffirmed.” (See Interview)
Apart from Subramaniam, the PIL included a plethora of top former civil servants. In the lineup were two former chief election commissioners (CEC) TS Krishnamurthy and N Gopalaswami, former Indian Ambassador to the US Abid Hussain, ex-CBI Director Joginder Singh, former Manipur governor Ved Prakash Marwah and 77 others.

“It will help in good governance across the country," IAS officers' association secretary Sanjay R Bhoos Reddy noted. IAS and Indian Police Service (IPS) associations have been demanding changes in service rule to ensure arbitrary transfers and suspensions of officers. There are about 4,737 IAS and 3,637 IPS officers working across the country.
In a significant observation,the court said that civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. "We are of the view that civil servants cannot function on basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by administrative superiors, the political executive, business and other vested interests,” the two-member bench said, of a judgment which is sure to have administrative ramifications. The court also asked the government to enact a Civil Services Act under article 309 of the Constitution to set up a Civil Service Board (CSB) that can guide and advise the political executive on issues such as transfers, postings and disciplinary action. It also suggested that CSB should consist of high-ranking service officers who are experts in their respective fields. Article 309 deals with recruitment and conditions of service of persons serving the union or a state.

CSB’s constitution is a crucial issue. Political parties would be inclined to take absolute control over the appointment of its members, notes a bureaucrat who wants a Supreme Court-deployed committee to monitor the implementation of its directive. Because there is also genuine fear that this apex court judgment may go the police reforms way. Says former CBI Director Joginder Singh said, "I am happy over this judgment but having said that I am aware that a similar judgment was passed by the Supreme Court on September 20, 2006, on fixed tenure of police officers but all states are dilly-dallying". A new draft Public Services Bill aims to provide greater stability of tenure to bureaucrats.

Points out additional solicitor general Paras Kuhad, who also appeared for the Union government: “any mechanism within the governmental structure could be thought of, but involvement of any person, howsoever high he may be, who is not part of the centre or the state government, would not be advisable, especially in the absence of any such provision in the Constitution or the laws made by centre and state governments”

Naturally it is to be seen when and how the Centre, state governments and political parties are ready to grant what the court wants. After all, an increase in the powers of the bureaucracy by taking away the dreaded sword of transfer and postings away from them only implies a reduction in the power of the politician.


‘Civil servant is not a politician's private servant’


When and why did you file PIL?

I belong to 1961 batch of the IAS. We have our own group to discuss various issues. Over the last few years we have discussed our service and poor governance. Last few years have seen deterioration in governance. One of them suggested that we should do something together to reverse this trend. During brainstorming there were opinions for and against legal course as this is a purely administrative matter. Since political interests are strongly entrenched, no changes will be allowed politicians. Also, the Supreme Court has no locus standi in administrative matters. We came to the conclusion that it was not merely a case of interest of civil servants. It was more importantly a question of good governance and larger public good. In mn my book on Governance (will be out in few week from now) I have said governance and policy making is 5 per cent and rest 95 per cent is implementation. If officers are demoralised and not given time and space to do their job it will impinge on the quality of administration. I was elected by the group and they asked me to spearhead the movement. This was around 2009-10. Then we prepared the material for PIL.

Has the judgment come as a relief?

We are not relieved. It is like Mahabharata. Just because Abhimanyu was killed does not mean that war was over. We have had continuous deterioration in governance for the past 15 to 20 years. Hopefully this and a number of steps - Laloo Yadav going to jail, Judgment on RTI and political parties, 2G Scam and role of CAG and administrative reforms. These probably portend a change and improvement in quality of administration.

What does it mean for different stakeholders-bureaucracy, political class and citizens?


Bureaucracy is a small miniscule percentage of people. The Supreme Court has no locus standi if it is purely a matter of bureaucracy. Here locus standi comes under the Article 32 of the Indian Constitution for public good. Whether bureaucracy as an instrument of public good is effective or not? We are not looking what is convenient for the bureaucracy. The reality is if an officer is transferred the police administration suffers, mafia flourish and it impinges governance. If there is a stability of tenure, civil servants job is not only to follow directions but also to give sound advice.  Conversely political elements which thrive in this situation, will not be happy. That is why you see this kind of reactions.

Will a bureaucrat finally be free from clutches of political masters?

People must understand that nobody is shedding tears for bureaucrats. Our only concern is welfare of the citizens. Otherwise the Supreme Court has no role.

Frequent transfer of civil servants too plagues good governance

There are officers who are transferred within three months of postings. By the time they understand rules and regulations they are shunted. This is inimical to good administration.

With the judgment stop transfers and harassment?

No. The stakes are so high that politicians want transfer of officers who stand in their way. They do not care whether it is good or bad administration. He is to feather his own nest. He is not going to let it happen easily. But now it is a process. Earlier these issues were entirely in the executive domain. Now it has acquired constitutional overtones. It is not like the old master-servant relationship in the house.

Overtime political class has treated civil servants as personal servants

Yes. Both are public servants. One is elected and the other is permanent. Over time elected public servants have treated the peoples' mandate to assume that they can do whatever they want. But change is taking place and that civil servants are not private servants to do your (the minister’s) bidding. Siddharth Behura’s job as telecom secretary is not to ensure that Raja makes money but how telecom ministry’s business is conducted.  Ministers are not lord and master. A civil servant is appointed by the President of India. The Constitution of India is the Bible. A civil servant is not a private pujari of a private god.

The judgment says the bureaucrats need not act on verbal orders. How significant is this?                                         


We are not running a domestic affair here; this is a public affair. Orders have to be put on record. Politicians want authority without responsibility.


The judgement has called for Civil Service Board in three months. Will it be free of political pressure 


At the Centre there is a civil service board headed by Union Cabinet Secretary. It functioned effectively till ten years. Since then, it has became politically dominated. Much the same has happened in states. For instance in UP, the board consist of chief secretary, principal secretary and personal secretary to the chief minister. What independence will they have? We wanted independent boards at the Centre and states. The Hota Committee on which the Supreme Court relied argue for an independent board. The bench too wanted it


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Issue Dated: Feb 5, 2017