Restoring steel in the steel frame
The relationship between the democratically elected political executive and the competitively recruited permanent executive is, in a lighter vein, like the relationship between a husband and a wife. In this case who the husband is and who the wife is dynamic and keeps evolving every five years, without the slightest signs of promiscuity on either side.
While unarguably representative government allows for rule by the political executive according to the law of the land, what is not appreciated by many commentators is that those who get represented are often a coterie or a select group rather than the people who elect those representatives. This in turn leads to rule of law being bypassed or inventive methods being discovered — sometimes in collusion with the permanent executive — to subvert institutions.
Indeed while insulation from politics is not completely desirable in representative government, insulation from political interference is. Especially when political interference comes in the guise of an articulation of widely held public sentiment, when actually it might be anything but that.
There is a fashionable and romantic notion that politics is about resolving competing inconveniences while bureaucracy is just an inconvenience. With many honourable exceptions, what happens in practice is actually quite different. More often than not in the guise of representing the many, what is articulated is the narrow need of a powerful few. It is here that the sensible civil servant must necessarily be an inconvenience, no matter how distasteful this may be.
Against this backdrop the Supreme Court judgment that aims to give fixed tenure to civil servants, responding to a public interest litigation filed by former cabinet secretary TSR Subramanian and 82 retired bureaucrats, is a welcome first step, though individual civil servants already practice many of its components. For example, no good officer will ever accept an oral order and will instead record it on file and seek written confirmation, as enunciated in the All India Service Conduct Rules. The judgment only affirms and codifies this.
Further, one needs to make a fundamental distinction between the obligation to disobey an illegal order versus disobeying one that an officer simply does not agree with. The former is enjoined on the officer by law, as enshrined in Article 3, All India Conduct Rules, 1968. No officer is obliged to carry out written or oral illegal orders that are in direct violation of the law of the land. It is also expected that every order from a superior to a subordinate officer shall be in writing, and if oral, shall be followed up in writing soon.
Tenure is indeed important. In some states officers do not even print business cards anymore for transfers happen every few months, more with an eye to demoralising officers than for any administrative reasons. Thus a Civil Service Board (CSB) is indeed welcome and it should fix what could be called a normal tenure for specific positions and not for officers.
It should mandate that at least 90% of the officers must complete normal tenure, unless they make a request for transfer. In every case of transfer, the board must record reasons in writing. The 90% rule gives flexibility to the government to prevent a dishonest officer from capturing a post under the guise of fixed normal tenure and move him out instead.
But the jury is wide open on whether the compulsions of realpolitik will allow a CSB to be constituted and function as envisaged. The experience with police boards hasn`t been very happy in this regard. Even after almost eight years not a single state government has implemented the judgment in letter and spirit.
What is worrisome about the judgment is that it appears to be encroaching on executive terrain. The counter-argument is that when the executive fails to perform its duties as embodied in theConstitution, it is necessary for the judiciary to step in. However, whether the Supreme Court can direct Parliament to frame a particular law is debatable, for it could well be construed as violative of the separation of powers.
Further, Article 32 deals with fundamental rights of citizens. Whether administrative reforms, no matter how desirable they are to further public policy and citizens` welfare, can be characterised as fundamental rights is highly debatable. An extension of the same argument could well be that every committee report of every government can be thrust down the throats of a recalcitrant executive, using judicial intervention. This is not just highly debatable but also to an extent dangerous.
The Supreme Court judgment is a small first step in a long and arduous journey. No amount of judicial directives can provide a spine to civil servants who don`t want one or didn't have one to start with. No amount of judicial pronouncements can infuse goodness and character into a politician who doesn't have it in the first place. Leadership, character, resolve, judgment, integrity and morality cannot be manufactured in courts or inside governments
Election Commission wants a cooling off period before former bureaucrats join political parties
Times view
It will shield decision making
The Election Commission has a strong case in its attempt to get the government to impose a cooling off period between a bureaucrat's retirement and formal entry into a political party. At the heart of EC's move is the recognition of a conflict of interest in the issue and an attempt to mitigate it.
Bureaucrats are the instruments through which state policy is administered. Often they also influence the very making of a policy, putting them in a powerful position. Bureaucrats, like everyone else, can have more than one interest and administrative operating procedures need to deal with it. A conflict of interest need not show up in an overt manner. Interests outside the job can influence decision making in an insidious manner. It is to deal with this challenge that bureaucrats have a cooling off period before they can join private sector jobs after retirement. The cooling off period here used to be two years and a few years ago it was shortened by a year. The method is not fool-proof, but one way of instituting a system of checks and balances to protect the integrity of decision making.
There is no reason why the cooling-off principle should not be applied to bureaucrats joining political parties. The proposal first came from within the government. Legal questions on the validity of a cooling off period should be dealt with and the proposal actualised. Political parties, when in power or out of it, play an overwhelming role in shaping legislation. Bureaucracy, the instrument that implements legislation, can be inappropriately influenced by its relationship with politicians. There may be no guaranteed method of insulating a bureaucrat's decision making from inappropriate influences, be it in relation to private or political parties. That, however, is no reason to avoid using cooling off periods as a shield to protect the integrity of decision making.
Counterview
No such period necessary
Chandan Nandy
Anything that acts as a barrier between politics and the public, including the Election Commission's proposal to introduce a cooling off period for bureaucrats before they choose to join politics, should be considered anathema for a government trying to reform itself. Allowing senior bureaucrats and government employees to join political parties once they retire from service will have a transformative effect on politics which has seen high levels of corruption and criminalisation.
With their vast resource and knowledge pool, retired bureaucrats can bring with them intellectual capital otherwise lacking in most political parties. Possessed of administrative and analytical skills and imbued with some sense of providing clean governance, which political parties seldom practice, government employees are perfectly placed to change the prevailing culture of banality and venality among the national and state-level parties. The entry of retired bureaucrats as members of political parties is not an unknown phenomenon. Several middling and senior officers, from the IFS, IAS and the IPS, took early retirement to join one party or another. Others superannuated to serve parties of their choice.
This trend should continue without the restraint of a cooling off period. This will mean many more expert minds helping explain or transmit ground-level interests up the political chain, contributing to transforming public demands into policy. They could flag flaws in the functioning of parties and help build bridges with senior figures in government and the corporate world - hitherto looked down at as venal relationships. The civil service has never been the most glamorous of jobs, but when officials freely join the political system we could hope for cleaner politics.
The relationship between the democratically elected political executive and the competitively recruited permanent executive is, in a lighter vein, like the relationship between a husband and a wife. In this case who the husband is and who the wife is dynamic and keeps evolving every five years, without the slightest signs of promiscuity on either side.
While unarguably representative government allows for rule by the political executive according to the law of the land, what is not appreciated by many commentators is that those who get represented are often a coterie or a select group rather than the people who elect those representatives. This in turn leads to rule of law being bypassed or inventive methods being discovered — sometimes in collusion with the permanent executive — to subvert institutions.
Indeed while insulation from politics is not completely desirable in representative government, insulation from political interference is. Especially when political interference comes in the guise of an articulation of widely held public sentiment, when actually it might be anything but that.
There is a fashionable and romantic notion that politics is about resolving competing inconveniences while bureaucracy is just an inconvenience. With many honourable exceptions, what happens in practice is actually quite different. More often than not in the guise of representing the many, what is articulated is the narrow need of a powerful few. It is here that the sensible civil servant must necessarily be an inconvenience, no matter how distasteful this may be.
Against this backdrop the Supreme Court judgment that aims to give fixed tenure to civil servants, responding to a public interest litigation filed by former cabinet secretary TSR Subramanian and 82 retired bureaucrats, is a welcome first step, though individual civil servants already practice many of its components. For example, no good officer will ever accept an oral order and will instead record it on file and seek written confirmation, as enunciated in the All India Service Conduct Rules. The judgment only affirms and codifies this.
Further, one needs to make a fundamental distinction between the obligation to disobey an illegal order versus disobeying one that an officer simply does not agree with. The former is enjoined on the officer by law, as enshrined in Article 3, All India Conduct Rules, 1968. No officer is obliged to carry out written or oral illegal orders that are in direct violation of the law of the land. It is also expected that every order from a superior to a subordinate officer shall be in writing, and if oral, shall be followed up in writing soon.
Tenure is indeed important. In some states officers do not even print business cards anymore for transfers happen every few months, more with an eye to demoralising officers than for any administrative reasons. Thus a Civil Service Board (CSB) is indeed welcome and it should fix what could be called a normal tenure for specific positions and not for officers.
It should mandate that at least 90% of the officers must complete normal tenure, unless they make a request for transfer. In every case of transfer, the board must record reasons in writing. The 90% rule gives flexibility to the government to prevent a dishonest officer from capturing a post under the guise of fixed normal tenure and move him out instead.
But the jury is wide open on whether the compulsions of realpolitik will allow a CSB to be constituted and function as envisaged. The experience with police boards hasn`t been very happy in this regard. Even after almost eight years not a single state government has implemented the judgment in letter and spirit.
What is worrisome about the judgment is that it appears to be encroaching on executive terrain. The counter-argument is that when the executive fails to perform its duties as embodied in theConstitution, it is necessary for the judiciary to step in. However, whether the Supreme Court can direct Parliament to frame a particular law is debatable, for it could well be construed as violative of the separation of powers.
Further, Article 32 deals with fundamental rights of citizens. Whether administrative reforms, no matter how desirable they are to further public policy and citizens` welfare, can be characterised as fundamental rights is highly debatable. An extension of the same argument could well be that every committee report of every government can be thrust down the throats of a recalcitrant executive, using judicial intervention. This is not just highly debatable but also to an extent dangerous.
The Supreme Court judgment is a small first step in a long and arduous journey. No amount of judicial directives can provide a spine to civil servants who don`t want one or didn't have one to start with. No amount of judicial pronouncements can infuse goodness and character into a politician who doesn't have it in the first place. Leadership, character, resolve, judgment, integrity and morality cannot be manufactured in courts or inside governments
Election Commission wants a cooling off period before former bureaucrats join political parties
Times view
It will shield decision making
The Election Commission has a strong case in its attempt to get the government to impose a cooling off period between a bureaucrat's retirement and formal entry into a political party. At the heart of EC's move is the recognition of a conflict of interest in the issue and an attempt to mitigate it.
Bureaucrats are the instruments through which state policy is administered. Often they also influence the very making of a policy, putting them in a powerful position. Bureaucrats, like everyone else, can have more than one interest and administrative operating procedures need to deal with it. A conflict of interest need not show up in an overt manner. Interests outside the job can influence decision making in an insidious manner. It is to deal with this challenge that bureaucrats have a cooling off period before they can join private sector jobs after retirement. The cooling off period here used to be two years and a few years ago it was shortened by a year. The method is not fool-proof, but one way of instituting a system of checks and balances to protect the integrity of decision making.
There is no reason why the cooling-off principle should not be applied to bureaucrats joining political parties. The proposal first came from within the government. Legal questions on the validity of a cooling off period should be dealt with and the proposal actualised. Political parties, when in power or out of it, play an overwhelming role in shaping legislation. Bureaucracy, the instrument that implements legislation, can be inappropriately influenced by its relationship with politicians. There may be no guaranteed method of insulating a bureaucrat's decision making from inappropriate influences, be it in relation to private or political parties. That, however, is no reason to avoid using cooling off periods as a shield to protect the integrity of decision making.
Counterview
No such period necessary
Chandan Nandy
Anything that acts as a barrier between politics and the public, including the Election Commission's proposal to introduce a cooling off period for bureaucrats before they choose to join politics, should be considered anathema for a government trying to reform itself. Allowing senior bureaucrats and government employees to join political parties once they retire from service will have a transformative effect on politics which has seen high levels of corruption and criminalisation.
With their vast resource and knowledge pool, retired bureaucrats can bring with them intellectual capital otherwise lacking in most political parties. Possessed of administrative and analytical skills and imbued with some sense of providing clean governance, which political parties seldom practice, government employees are perfectly placed to change the prevailing culture of banality and venality among the national and state-level parties. The entry of retired bureaucrats as members of political parties is not an unknown phenomenon. Several middling and senior officers, from the IFS, IAS and the IPS, took early retirement to join one party or another. Others superannuated to serve parties of their choice.
This trend should continue without the restraint of a cooling off period. This will mean many more expert minds helping explain or transmit ground-level interests up the political chain, contributing to transforming public demands into policy. They could flag flaws in the functioning of parties and help build bridges with senior figures in government and the corporate world - hitherto looked down at as venal relationships. The civil service has never been the most glamorous of jobs, but when officials freely join the political system we could hope for cleaner politics.
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