On Thursday, a pathbreaking Supreme Court judgement, based on a public interest litigation (PIL) filed by former cabinet secretary T.S.R. Subramanian, sought to unshackle the bureaucracy from political influence. The lawyer for Subramanian was Menaka Guruswamy, 38, who previously defended a provision in the Right to Education Act mandating that all private schools admit disadvantaged children, and was among the lead lawyers challenging section 377 of the Indian Penal Code that punished people for same-sex relations. A Rhodes scholar, Guruswamy was the Gammon Fellow at Harvard Law School. She spoke about Thursday’s verdict in an interview immediately after the ruling. Edited excerpts.
What is the story behind this PIL?
It’s a great story. When Mr. Subramanian first came to us, he said ‘I want to clean up the bureaucracy.’ What was interesting about Mr. Subramanian and his other friends was that they were very organised. They had a list of demands and they had done the research as to which committee had said what. And I said, ‘You have to ask for what you think are the few most important reliefs you think the court will give. That will be first big step in the cleaning up process.’ In many ways this has been the most difficult petition to draft because when we started, the world was our oyster. Every single bureaucratic reform committee had recommended this and more for the last 60 years in this country and nothing had been implemented. The scale of the magnitude of omission is shocking.
And this is the thing about being a litigator, how do you translate a mountain of information and very dense committee reports. How do you convey that into a simple story to tell into court? That’s the challenge, so how do you think about a brief as a story to tell in court and tell a judge who is already overburdened, that ‘look these are the reliefs you need to give for very good reasons.’
The story of corruption in this country, the story of repeated transfers, the story of young, honest bureaucrats taking on sand mafia, everyone knows. This is now part of all our lived realities. The question is how you engage that and how do you enable a court to intervene, how do you write a 40-page brief to speak of that situation. So, that took up a lot of time.
How many seconds you think, before political parties pounce on it and declare it ‘judicial overreach’?
I think that has already started. Many segments of even the government are saying that. We are going to have very serious questions about the judiciary in respect of appointments because in many ways the collegium system (for appointing judges) is unique to India and I think there is going to be a lot of pushback from political parties, legislature and executive, irrespective of the government. There is a feeling within the political parties that this (judiciary) is increasingly an unaccountable institution. You will therefore have some confrontation.
How real do you think it is for a junior officer to demand a written order from his senior, for an order which might not be very ethical or even border on illegality?
Today it’s a very real possibility because of what we are seeing playing out right now; because you had a framework of oral instructions, the bureaucrat is not protected. Sure you would be cognisant of hierarchy but you would also like to retire in peace, without being stuck in a court process and I think that is going to be a motivating factor now towards good, honest, civil servants saying, ‘Sir, please put that down in writing’ because now it’s not just captured in writing but today you have a Supreme Court case on point. More importantly, states and Centre will have to implement that in the form of guidelines or something similar and there is a fixed timeline to do that. How do you change cultures within institutions to think like that? I think most bureaucrats are fairly honest and are being pushed around. They would like to have a set of tools that they can use and this is the beginning of those tools.
What aspect of the judgement do you find novel and effective?
I think the SC has kind of been very brave in extending it (such protection) to the state. At the end of the day when you think of this country as an administrative grid, it’s very important for officers at the state cadre to be also protected by fixed tenure or written instructions or CSB (civil servants board). And often state executives are even more manipulative for a variety of other reasons. You only have to travel to some parts of this country where extreme political and industrial interests have aligned to see how bureaucrats are treated there.
In certain states, when we were researching the brief, it was shocking to see the average tenure of a bureaucrat is four months. Therefore if you have 80-odd senior retired officers, bureaucrats who have come together to file this petition in many way,s it tells you something about the state of bureaucracy in this country and the kind of pressure the bureaucracy is under.
How will it affect pending cases of officials who are being harassed by political set up and others, as we have recently witnessed?
I think it clearly a message is being sent that we at the court are concerned and therefore we are doing something about it. But also every state government and union government will read it carefully because at least for two out of three reliefs, they have been given a definite time line and anything outside of that time line or not conforming to it will actually be disrespecting the judgement of the court, which will have serious consequences.
What were the things that you thought were really important but could not be included and what is unique about this case?
I think there were a lot of mechanisms that were suggested to address corruption, ways of determining who to promote, how to create an independent civil services board. I think it is difficult to ask the courts to do those things because that has to be the job of legislature and the executive.
Probably nowhere in the world would you have filed a case in the courtroom; you would have tried to lobby the Parliament to get that. We just don’t live in that country. We are in 2013. You should have graduated law school and lived in a country which should have implemented these committee reports, fixed tenure, written instruction. That should have been the country. We don’t live in that country. T.S.R. (Subramanian) told me this is a big thing you have done.
In many ways, it’s not. This isn’t a glamorous case, bureaucratic reforms is not. But if you want to clean up the country, this is that case because you won’t even see the results of this now, you will see it five years later when a young, honest, bureaucrat who is idealistic and motivated, is deciding to take on the sand mafia and she is being pushed around from post to post, really by a bunch of thugs, let’s be clear and she gets to file a complaints to the civil services board and you have the reasons for the transfer being addressed by that board. I think today this judgement is for the honest bureaucrat. So, I think Justice (K.S.) Radhakrishnan has written something for the honest bureaucrat. And now it is for the bureaucracy to respond. So, tomorrow if you have a high-ranking bureaucrat who is on the civil services board then it is now for them to show integrity.
How did you manage with the multiplicity of petitioners and parties?
What’s interesting about these clients is that when we were putting a list together—usually when you file PILs, you have two or three eminent people and those make for easier PILs because you have to get only two-three vakalatnamas (power of attorney)—now when you have 80-odd petitioners, some of who have retired to different parts of the country since then, just getting their vakalatnamas, so that we could file in their name, was a mammoth undertaking. What is incredible about this case is that the brief is a slim one, but everything has been extraordinarily cumbersome and intricate.
My solicitor would have to serve a minimum of 60 people because he is serving 30 state counsels, he is serving Union officers and he is serving everyone. In many ways, the real heroes of this case are clerks of the solicitor’s office, who padded around the city, finding different state counsels who keep changing too. It was a massive undertaking.
I think we got a good bench, a good judge who wanted to do something and it just all came together.
Could you talk a little about the responses of the states to the ideas of independence, security, etc.?
When a set of petitioners go to court and say that we want to have a serious conversation about corruption and about the fabric of this institution, and we have many state governments responding in a half-baked thoughtless fashion, it tells you about the governments we have. In many ways, this court taught me so much about my own country. It taught me that people, who wield power, work very hard to retain it. It also taught me that in many ways, the Constitution has been our best friend because it really opened up a road for both the judge and the petitioners to push their way through a series of governments who have not been interested in ensuring honesty in bureaucracy.
Can you please talk a little about the pending Bill, which the government counsel claimed as “a step in the right direction”?
This Bill is pending is what we know. T.S.R Subramanian had written to the then serving secretary. What is interesting is that that Bill is not available in public domain. So the cabinet secretary writes back to us saying ‘thank you very much for your letter but there is a Bill pending which will address your concerns’. We could never manage a copy, we asked for it. So this mythical, magical, shadowy Bill is somewhere out there and we would all love to see a copy of it.
There’s the new trend of cleaning politics and the political and bureaucratic tussle we have recently witnessed. Your thoughts.
I think it started two-three years ago, with 2G (telecom spectrum). I think for the last two-three years, we have seen very influential members of the Supreme Court being exasperated at the state of governance and the executive in the country.
But I think it started much before. For instance, I was arguing a Right to Education case in front of justices Kapadia, Radhakrishnan and Swatanter Kumar and it was fascinating because something as important as Right to Education Act was passed when there were about 77 members in the Lok Sabha. So, the Chief Justice says, ‘How do we know anything about the legislative intent when they don’t even show up to vote on such an important Act?’
So there is this sense, I think, in the judiciary that you have an executive and a legislature that seems to be increasingly apathetic towards their constitutional obligation. Not being in then Parliament, not showing up to vote, not applying your mind, on important legislation. In many ways that story is connected to this. You have had a Bill pending in Parliament for a long time, clearly the executive does not want to move it, but nobody in Parliament is asking any questions, nobody is asking how do we insulate the bureaucrats?
So, I think there is a sense within the judiciary, but you are seeing pro-active steps in the last four-five years, which a political scientist has called “the jurisprudence of exasperation”, which is a very good way of describing it. I think these are people who are trying to do the very best they can, but they are overburdened. What is special about this court is that it is one of the few places left in this country where you will hear the language of ‘constitutional obligation’, phrases like ‘constitutional duty’, ‘rights’, of late ‘better country’, ‘public interest’.
They are setting up the terms of a conversation, a conversation that other parts of this country should be having, but we are not. In many ways they are exasperated and they are responding to what they feel is corruption, bad administration, poor governance and a lack of care.
If you do a comparative assessment, judges and lawyers in other countries are shocked at everything the court does, going into such areas. No apex court anywhere would tread into such area as bureaucratic reforms.
What do you think about the recent trend of public interest litigation?
I have mixed feelings on this issue. I agree it has relaxed the requirement of locus and other formalities, but I do not use the terms PILs, for me these are constitutional cases. These cases are about rights of people. We have seen PILs being used by private parties. They say these are not adversarial issues, when they actually are. In the same way, we have to understand that even if relief is given to one litigant, it is a service done to the society, to all people in that same scenario. So, for me these are questions of constitutional rights.