When the bureaucracy has to approach the judiciary to restrain the political executive through a PIL, times must be really bad.
The first prayer made before the Supreme Court by T.S.R. Subramaniam, a former cabinet secretary, and 83 others (including myself) was for setting up independent civil service boards (CSBs), which would, inter alia, prescribe fixed tenures for civil servants. Citing the recommendations of the Santhanam Committee, the Hota Committee and the second Administrative Reforms Commission, the SC has directed the government of India to issue rules under Article 309 of the Constitution to establish CSBs to guide and advise the Central and state governments on service matters, especially on the tenures of officers. The SC has recognised that the political executive has the authority to overrule the CSBs if its reasons for differing with the their recommendations are duly recorded. The CSBs, which will be made up of senior serving officers, are to be established within three months and are to make recommendations on most service matters.
This is nothing spectacular. Civil service boards already exist in many states — including in Uttar Pradesh. Despite this, successive governments in several states have buffeted and battered countless senior civil servants, such as Ashok Khemka and Durga Shakti Nagpal, with impunity. Earlier the Central government would step in and intervene when states took arbitrary decisions. Of late, coalition politics has curtailed that. The CSBs, even if they draw authority from Article 309, will have limited power and influence if they do not have functional independence. Even though it does not have statutory backing, the Central Establishment Board, chaired by the cabinet secretary, has worked reasonably well. This is because its key officers — the cabinet secretary, the personnel secretary and the home secretary owe nothing to individual ministers or other powerful individuals. They can afford to be independent, both individually and collectively. It is this triumvirate that takes a call on the empanelment of officers who later rise to be secretaries to the government of India. When individual ministers seek the removal of their secretaries, or heap humiliation on them, the cabinet secretary usually intercedes and gets the prime minister to override those ministers by not transferring the officers in question. The Shibu Soren versus P.C. Parakh episode is a case in point.
This, however, does not hold true for state governments, where three quarters of all civil servants are posted at any point of time. In a state, the chief minister is omnipotent and the chief secretary is usually a person of the CM’s choosing. Chief secretaries exercise authority more on account of their proximity to the CM and less because of their own position. The good news is that the state CSBs, as mandated by the SC, are to be constituted within the next three months. The bad news is that only in-service officers can be members of the CSBs, some of whom might have a history of pliable, even errant, decision-making. The court’s exclusion of the word “independent” is, therefore, a major risk factor for the still unborn CSBs.
The judgment does however leave it to Parliament to consider establishing independent, statutory CSBs through the enactment of a civil services act, and to induct experts from administration, management, and science and technology for “bringing more professionalism, expertise and efficiency into government functioning”. But first, the government must want to introduce such a bill. The very fact that the Civil Services Standards, Performance and Accountability Bill, 2010, has not got the final approval of the cabinet three years after it was prepared is indicative of the priority that the government accords to civil service reform.
The other prayer in the PIL was that the court direct civil servants to formally record every request or instruction that they receive, not only from administrative superiors but also from influential political authorities, legislators, businessmen and those having an interest in or purporting to represent persons in positions of authority. On a philosophical note, the apex court highlighted the need for transparency — to enable democracy to endure through the implementation of the Right to Information Act — which perforce has to rely on documentation and the maintenance of records. Leave aside reiterating what the All India Service (Conduct) Rules have stated since 1968, that superiors must reduce verbal orders into writing and that civil servants should seek confirmation of oral orders, the court gave no direction on an issue on which the PIL had expressly sought direction: to make it obligatory for informal requests made by influential people and power brokers to be brought on record. An order to this effect would have helped enormously.
At root, the greed, dishonesty and political brinkmanship of an expanding group of civil servants are responsible for the quagmire that now substitutes for governance. As one petitioner put it, “If our brethren had not colluded with erring politicians, things would not have come to this pass.” The recent Supreme Court order will not alter the situation dramatically. For now, the battle has been won, but the war is far from over.