Critiques on Governance
The judgment of the constitutional bench has been greeted with general approval by all political parties and with great euphoria by the Aam Admi Party (AAP). What emanates from three separate judgments delivered by the Chief Justice of the Supreme Court and his two brother judges is, first, a veritable history of the administration of Delhi. The labyrinthine route that was traversed over several decades of administering the Capital has been captured in copious detail. It is hoped that it would bring some sobriety into the grandstanding by a host of actors.
The Supreme Court’s Wednesday verdict has made three very important deviations from the Delhi High Court judgment of August 2016. It has dispelled the idea that the elected government has to wait to implement its decisions until the lieutenant governor (LG) acquiesces. More specifically, the advice given by the council of ministers is binding on the LG. But only as long as the LG does not exercise his constitutional power to differ and refer the matter to the President for a decision. Although it has been emphasised that this power is not to be exercised mechanically, anything that has sensitivity or can cast a financial burden which is beyond the government’s capacity or cause political problems with the Centre or other states will fall in this area. This actually covers a lot of area.
What does all this mean for Delhi’s citizens? First, as long as every decision has been taken within the ambit of the Transaction of Business Rules 1993 ,which mandates informing the LG of decisions taken by the council of ministers or even by an individual minister, implementation of decisions can start without awaiting approvals. But the Rules also have two important sub-chapters which refer to examination and concurrence by the finance and the law departments. This means a host of proposals can be called to question. Just a note of dissent given by the departmental secretary will give a handle to the LG to differ and withhold further action.
That there ought to be discussion, dialogue and a genuine effort to solve problems is inbuilt in the rules, and has been reiterated strongly by the three judgments. For example, embargoes on vehicles converging on Delhi’s roads or placing restrictions on hospitals or educational institutions by the council of ministers would have implications for the governance of the Capital — it belongs to the whole country. So, restrictions cannot be imposed without the LG having had an opportunity to discuss the pros and cons and return the matter for reconsideration. In Delhi’s case, the LG can differ, ask for reconsideration and make a reference to the Centre. Till a decision comes, the LG’s orders would prevail. So, it is not all plain sailing.
Under the Transaction of Business Rules, consultation with the finance and law departments is mandatory and the chief secretary — the secretary of the cabinet — has to ensure that the cabinet note has followed the process very elaborately spelt out in the 1993 rules. These have been alluded to by the apex court at numerous places in the judgments. In other words, getting advisers and consultants to prepare cabinet notes and clearing them with a simple nod will not work. Haranguing officers and imputing motives to them will not result in either compliance or implementation. At the end of the day, the proof of the pudding will be in the delivery of promised services — not in a display of strongman tactics to impress constituencies.
On the face of it, it may seem as though the Delhi government will now have the authority to make laws on all subjects, excluding those which fall directly under the LG’s authority. But that is actually not so. For instance, the Jan Lokpal Bill and the mohalla committee strategy. Both have been points of confrontation, resulting even in the resignation of the chief minister in his first term. Nothing has changed with all the judgments of the Supreme Court. The apex court has reiterated that any law which is repugnant to a law made by Parliament cannot be passed by the legislative assembly. And indeed these bills or concepts would even now run into repugnancy issues and will be negated as Parliament’s laws do not envisage such deviations being made to the existing central acts.
If the spirit of the judgments is to be read, all postings and transfers of officers should return to as it was in the Sheila Dikshit era, with only the postings of principal secretaries needing the acquiescence of the LG because that makes for better management with the Centre which controls the cadre. However the selection and posting of the chief secretary, the home secretary and secretary lands needs the specific approval of the LG as per the Transaction of Business Rules, which have now been accorded a new sanctity.
The judges have explained that the administrator as per rules has to be apprised of each decision taken by a minister or council of ministers and difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance. “The element of trust is an imperative between constitutional functionaries” so that their governments “can work in accordance with constitutional norms”.
Last but not least it is curtains for the idea of statehood. As long as Delhi is the national capital, it is everyone’s capital and the voice of non-Delhi citizens have to be heard through the central government acting on the decisions of Parliament. AAP’s hopes were misplaced and should not be resurrected afresh.
The writer is former chief secretary, Delhi.
TSR Subramanian will be remembered for spearheading a PIL known as TSR Subramanian and Ors vs Union of India when the Supreme Court concluded that ‘fixed tenure of bureaucrats will promote professionalism, efficiency and good governance’
Shailaja Chandra | Updated: Feb 27, 2018 11:16 IST
Why will TSR Subramanian, TSR as he was always known, be remembered? Certainly he was a respected cabinet secretary and one who managed the functioning of government during the turbulent coalition years of the late nineties but maintained equanimity while remaining honest and outspoken.
He will also be remembered for lifting the veil on the inner working of politicians and civil servants through a series of readable books and scathing opinion pieces.
More recently he will be remembered for spearheading a PIL known as TSR Subramanian and Ors vs Union of India when the Supreme Court concluded that “fixed tenure of bureaucrats will promote professionalism, efficiency and good governance” and attributed “much of the deterioration in the functioning of bureaucracy to political interference.” On national TV, he did not hedge around when he found a chief minister or a government treating a bureaucrat unfairly and came down heavily regardless of who might get annoyed. Indeed all these qualities endeared him to the civil services which is why officers feel the loss.
But there was something more and that bears a telling as we bid him good bye.
On a personal note, I came to know the man for some six months in 2015-16 when he chaired the committee for the evolution of the new education policy — a report that never saw the light of day, — and which TSR, I believe, saw as his greatest failure. Because I witnessed what he brought to the table in conducting this mammoth exercise it bears a telling.
The first was the incredible way in which he managed to pull together four retired have-beens with nothing in common — be it education, service experience or vision.
Listening to over 200 presentations from state governments, educationists, NGOs, academics and individuals and cutting short nonsense but equally responding with passion to revelations which went to the root of the problem was quintessential TSR.
Funnelling each sub-sector’s deficiency into a sharp, situation analysis and making practical recommendations is what he hammered out with speed, dexterity, accuracy and zeal to do what was right — not what people wanted to hear.
During this period, he suffered from a serious health problem which would have grounded anyone with less tenacity and determination.
A stroke and it’s aftermath notwithstanding, he was back in the office in just a few weeks — ebullient as ever — raring to make up for lost time.
His commitment to combining pre-school education with primary education in the interest of giving opportunities otherwise denied to poor children was boundless.
His belief that many institutions of so called importance had outlived their utility and were clearly white elephants won him many enemies who must be now having the last laugh.But to them and to all who read this today I will say, “ It is better to have tried and lost than never to have tried at all.”
(The writer is former secretary to the Government of India, and former chief secretary, Delhi.)
The midnight drama at the Delhi chief minister’s house, wherein the chief secretary (CS) was reportedly roughed up by two MLAs in the CM’s presence is a first in the annals of the civil service. One has heard of humiliation of officers, but seldom involving the chief secretary. The CS is not an ordinary bureaucrat. He is the head of the civil administration in the state or union territory, an officer who represents not just his own service but all services within the civil administration. The buck stops with him no matter which department is involved. His word in sorting out contending arguments and dissension among officers is final.
Much more than, say, a secretary to the Government of India, the CS has to show leadership while overseeing that public interest is preserved in letter and spirit. It is his duty to run an efficient administration and give the CM fair and impartial advice. It is not for nothing that the CS has a commanding presence in the administration.
Because there can be no democracy and participatory governance without the rule of law, the authority to administer has to be integral to governance. Which is why the symbols of authority are given to every CS, in states and UTs. In Delhi, the CS has an even more challenging role — he has to report simultaneously to the CM and the lieutenant governor (LG) and walk a tightrope between the vision and concerns of both, even when they are not always on the same page.
To do this every day is not easy, but because of the immense authority vested in the CS to organise and get things done, it is not impossible either. But it will work only as long as both the CM and the LG understand and respect the role of the CS. If that is whittled down, the tremors will be felt across the services. An insult to the CS is seen as an insult to the official brotherhood.
Delhi is different in many ways. In the states, the CS is invariably the choice of the CM and there is understanding and mutual trust between them. If the CS is unbending or difficult, it is easy to make a change quietly and elegantly. In the UT cadre or the AGMUT cadre as it is officially known, that is not so. By and large, the Ministry of Home Affairs (MHA), the authority controlling the cadre serving the NCT of Delhi as well as Goa, Arunachal Pradesh, Mizoram, Daman and Diu, Puducherry, Chandigarh and the Andaman and Nicobar administration, does not stand in the way of the CM having a CS of his choice. Having said that, the officer knows his career is largely to be decided by the MHA and not by the CM of Delhi or elsewhere.
Therefore, it is not necessary for the CS to always find a way to meet the demands of the CM, which is a point of difference with other state cadres. CMs recognise this and make the best use of what they have been given.
Even so, anyone who becomes a CS hasn’t reached the position to pick fights or cause obstruction. Successful projects bring their own sense of achievement and leading a team of officers and staff, including doctors, engineers, teachers, inspectors and clerks, brings its own zeal to succeed. So no CS would thwart good ideas which are in public interest out of pique or just to score brownie points with the central government. On the contrary, an achievement is as much recognised as the effort of a chief secretary’s leadership as of the political executive.
Sheila Dikshit and then LG of Delhi, Vijai Kapoor — one a Congress CM and the other an appointee of the NDA government — succeeded in bringing the unit area of house tax, the new Cooperative Societies Act, construction of 42 flyovers and privatisation of the power sector despite standoffs and differences. The system, then and now, is far from ideal. But in whatever way you look at it, Delhi will continue to be the seat of the central government unless the capital of the country is relocated.
Until that happens, the NCT of Delhi will be governed in the truncated manner. But the beauty lies in the fact that if there is a will to function, it is possible for right-minded people to work together.
That brings one to the midnight altercation or assault, depending on whose version gets established. If the CS was called at midnight, it should have been a matter of criticality — something which could not wait. One cannot imagine that the release of an advertisement or rations to poor people, howsoever important, could not have waited till the following morning.
It is most unusual for a CS to be summoned, and that too repeatedly, without an agenda. Indeed if there was an agenda, the CS should have taken the senior-most officer dealing with the subject with him. That he went alone adds to the impression that this was an agenda-less meeting in the presence of 11 MLAs and perhaps, an effort to overawe the officer, a reprehensible tactic certainly.
Chaos and bedlam at the top will shake the load-bearing pillars — the political executive and bureaucracy — on which the edifice of governance rests. The two pillars need to hold the structure together, or else one would develop cracks and bring the other down with it or lead to a go-slow which would prevent doing things that matter the most. And that includes all the services that one expects a government to deliver efficiently and prudently. It is an administrative breakdown that must be quelled for the sake of the citizens of Delhi.
The writer is former chief secretary, Delhi.
Senior bureaucrat Aruna Sharma has lashed out at what she calls the “narrow approach in the name of women’s rights”. She believes this has led to a rampant misuse of law by women, asserting that such “activism” is resulting in men losing faith in the judiciary and the institution of marriage.
Is the call to revisit some of our gender laws and their implementation valid or exaggerated?
What steel secretary Aruna Sharma wrote about the misuse of Section 498-A, and protecting men from baseless complaints were her personal views. But she has highlighted a truism which is almost never discussed, but ought to be. Section 498-A is sometimes misused and rather that helping women, sexual harassment laws are being used for extortion.
In July 2017, the apex court wrote a 20-page order explaining how the provision was being misused, and set out a detailed process to be followed before any arrest could be made. Anyone interested should first read the order.
I have personally known parents of a boy charged under 498-A cowering on a bench outside the office of the Crime Against Women cell of Delhi Police.The daughter-in-law in question had a mental condition which was not revealed when the marriage was arranged. But within a few days, the new bride ripped her trousseau and her husband’s suits with a pair of scissors. Her parents slapped a case under 498-A against a decent family whom I can safely vouch for, including their son whom I had known from infancy. The hapless family became victims of extortion and had to buy their way out as nothing else (including my clout) could work.
Another real life story: a strict no-nonsense principal of a Delhi University college was hugely resented by a highly politicised faculty. Unable to bully him with threats and gheraos, they cooked up a sexual harassment charge against him, and got a pliable college complaints committee to hold him guilty.The principal still retains his job after 5 years because an independent inquiry revealed he had been framed.
On women taking advantage of female predicaments to skirt office discipline, Aruna is right. Many women officials take full advantage of their gender to parry late sitting, working over crisis-ridden weekends, and accepting traveling assignments. Most men silently curse, but are scared to confront women (or overlook their promotions) for fear of complaints.
As a woman officer who has seen it all, here’s my advice: restore a sense of balance: men and women related complaints aren’t always black and white affairs. The 2017 two-judge order is sound and sensible. Just implement it!
Shailaja Chandra is former secretary to the government of India and former chief secretary, Delhi
The National Health Policy 2017 was notified last week. Coming 15 years after its predecessor, it presented an opportunity to do things differently. First, the recognition that strong state intervention is needed to control the surge of diabetes, heart and respiratory diseases hasn’t come a day too soon. With early screening and diagnosis becoming a public responsibility, the lives of millions of Indians could be saved from debilitating illness and premature death. This shift in emphasis is noteworthy.
Second, establishing a professionally-managed state public healthcare cadre makes eminent sense. A dedicated cadre of healthcare professionals can detect state-specific health hazards and contain them before they spread. The inclusion of professionals from sociology, economics, anthropology, nursing, hospital management and communication is a recognition of a multi-disciplinary approach and an acknowledgment that cultural attitudes must be understood if public health strategies are to gain community acceptance.
The third takeaway is the goal of pushing up male sterilisation “by 30 per cent and, if possible, much higher”. After Sanjay Gandhi’s blighted nasbandi programme, even the mention of male sterilisation made political parties, particularly in North India, squirm. Even after four decades, no politician was prepared to listen, leave alone act. Putting male sterilisation upfront also exhibits concern for the plight of women, who, after dealing with unwanted pregnancies and repeated childbirths, also undergo harrowing tubectomies. Thailand successfully made vasectomies into a routine affair more than 25 years ago. If six Indian states that account for almost half of India’s population and its annual growth, can incentivise (not coerce) men to limit family size by sterilisation, it could be a game changer.
The fourth good idea is piggy-backing medical and paramedical education on service delivery. Generations of health planners have been telling the Medical Council of India to factor in the ground realities that reduce the relevance of even the best medical curriculum. Indeed, students and patients would gain vastly if such facility-based training gets implemented.
The fifth half-positive takeaway is the recognition that AYUSH needs to be integrated into the research, teaching and therapeutic components of health systems; stressing that traditional systems need to back their claims with evidence is equally positive. But by repeating the unsuccessful strategy of appointing contractual AYUSH doctors in primary health facilities, the policy goes into reverse gear. AYUSH practitioners posted in PHCs do precious little traditional medicine and simply function as spare wheels or substitutes for allopathic doctors. That pads up manpower shortfalls but devalues the strength of AYUSH. Had the policy supported recognition of approved district specialty AYUSH centers for a host of chronic problems, lakhs of patients in search of reliable AYUSH treatment could have benefited.
The policy has neatly sidestepped some basic concerns. The Clinical Establishments Act 2010 was passed by Parliament with the aim of regulating clinical standards, both in the private and public health sector, and ending quackery. It has received scant backing from the state governments and was rejected by the Indian Medical Association. Instead of emphasising the importance of oversight of all medical establishments, the policy has soft-peddled by recommending mere “advocacy”.That leaves a hapless public at the receiving end of much care, malpractice and exorbitant treatment costs with no protection. Leaving health regulation up in the air with talk of yet another standard-setting organisation will not insulate consumers from exploitation.
The policy is also hazy about generating resources. One wonders whether the reference to medical tourism earnings and “a high degree of associated hospitality arrangements” implies a desire to tax hospitals that offer frills. This sounds egalitarian but could drive away the relative advantages that Indian medical tourism presents.
The policy places enormous reliance on the eighth standard-pass female volunteer, ASHA — the lynchpin of the National Rural Health Mission. But it does not even allude to how the poor, both in rural and urban areas, are driven by a desperation to overcome acute illnesses (that result in a loss of wages) to seek medical treatment from quacks, RMPs or self-styled doctors with no medical qualifications. Fluff about upgrading sub-centres or providing additional multipurpose workers does not confront the pervasiveness of RMPs or jhola chaap doctors who administer IV fluids, antibiotics and steroid injections with impunity. The policy shows no recognition of the magnitude of what is happening on the ground, even when a WHO report shows that unqualified medical practitioners constitute more than half the “doctors” in India. The WHO’s report is based on data provided by the Census office and the erstwhile Planning Commission. Recognising that they cannot be wished away, the West Bengal government has even embarked on training quacks “to cause less harm”. This problem is too pervasive to be ignored. The policy should have confronted it.
The policy has rightly explained why the time is not ripe to make health into a justiciable right. It is good that symbolism hasn’t held sway as it did with the impractical Right to Education Act. What is more important, however, is for the states to accept the policy and implement the law. It is time that registration, accreditation and regulation of clinical establishments and standards is put in the Constitution’s concurrent list in much the same way as drugs, food and medical education. Too much is at stake to be left to the states that often look the other way when it comes to maintaining critical health standards — this is something that ought to be non-negotiable.
The challenge now is to translate the policy’s stated noble intentions into schemes and programmes supported by the requisite financial backing. It is accountability that needs early deliverance.
The writer is former secretary, Department of AYUSH, government of India, and former chief secretary, government of Delhi
The recent decision to scrap the Public Health Foundation of India (PHFI)’s Foreign Contribution Regulation Act (FCRA) licence has stunned the public health community. Although the Foundation has had its share of detractors, it received patronage from the government, some of India’s richest industrialist-philanthropists and foreign organisations such as the Bill & Melinda Gates Foundation. Over the years, PHFI has also benefited from allotment of vast tracts of land and government support to establish state chapters.
The denial of FCRA permission to PHFI signifies a sudden fall from grace. While it is curtains for future foreign funding, it is important to examine what soured the milk. If, as has been reported, PHFI was cutting corners on FCRA conditions, it must get just deserts. However it seems that was not the primary reason for the retribution meted out by the ministry of home affairs, which grants FCRA clearances. The objection was: “[PHFI] used the contributions to lobby parliamentarians, the media and the government on tobacco control issues.”
How can doing tobacco control advocacy and that too at the behest of the ministry of health invite reprisal? Didn’t the MHA talk to the ministry of health before taking the step? Interdepartmental co-ordination is sacrosanct in the functioning of the government. Unfortunately, the fallout of PHFI’s FCRA cancellation has been an all-round perception that big tobacco has won. This exposes us to international criticism.
For decades the anti-tobacco movement has been spearheaded by the ministry of health and the World Health Organization (WHO). India is a signatory to the WHO Framework Convention on Tobacco Control. Despite incremental gains, India’s track record of controlling tobacco consumption has been abysmal. Tobacco deaths are rising and the sad part is that around half of those dying are among the illiterate.
The Indian Council of Medical Research data shows that 50% of cancers in men and 20% in women is due to tobacco use. India has another problem. Non-smoking tobacco is the greater cause of mortality and children and adolescents are falling prey to tobacco addiction. When every avenue should be pursued to build maximum awareness about tobacco use, we pride ourselves on being the second-largest consumer (275 million users) of tobacco products.
The government must clarify that it is dead against smoking and tobacco consumption by proactively encouraging anti-tobacco advocacy. And then to back it with fiscal and administrative measures that hurt enough to make a big difference.
Shailaja Chandra is former chief secretary, Delhi The views expressed are personal