Supreme Court seeks to unshackle bureaucracy

New Delhi: India’s Supreme Court, through a landmark judgement on Thursday, moved to unshackle the bureaucracy from political control.

The move would improve the quality of governance across the country, the association of Indian Administrative Service (IAS) officers said.

However, it is also likely to further soil the relationship between the executive and judiciary, already strained by the latter effectively making policy in some instances.

Ruling on a two-year old public interest litigation (PIL) filed by former Union cabinet Secretary T.S.R. Subramanian and about 80 other bureaucrats, Justice K. S. Radhakrishnan directed the centre and state governments to set up independent Civil Servants Boards (CSBs) within the next three months to deal with the transfers and promotion of and enquiries or disciplinary actions against bureaucrats. Currently, the department of personnel and training decides this for central government employees and the general administration department for state government civil servants.

This will not only ensure security of tenure for the officers, but also limit political interference.

The Supreme Court’s order also requires both the centre and states to come up with supporting legislations. It also requires records of oral orders received by bureaucrats to be maintained.

“Oral and verbal instructions, if not recorded, could not be provided. By acting on oral directions, not recording the same, the rights guaranteed to the citizens under the Right to Information Act, could be defeated,” the order said.

The judgement comes against the backdrop of the controversial move by the Uttar Pradesh government of suspending (and then reinstating) IAS officer Durga Shakti Nagpal, who was investigating the sand mafia in the state, and of the Haryana government of shunting out IAS officer Ashok Khemka, who was investigating land deals undertaken by Robert Vadra, son-in-law of Congress party president Sonia Gandhi. The Supreme Court had refused to intervene on PILs filed in both matters.

“We support the judgement. It vindicates our stand. It will help in good governance across the country,” IAS officers’ association secretary Sanjay R. Bhoos Reddy told news agency Press Trust of India.

The association of Indian Forest Service officers (IFoS) also supported the order. “It will check arbitrary transfers and suspensions,” said IFoS association president A. R. Chadha.

Experts say implementing the order may prove difficult and they fear that it will provoke another face-off between the executive and the judiciary.

The Congress party, which heads the United Progressive Alliance government, criticized the order.

“To discharge the responsibilities of the executive effectively, the power of transfer and posting of the officials should be with the government. For effective administration, the discretion should be with the political authority. Any infringement of this authority will not be good for the country,” Congress spokesperson P. C. Chacko said.

Pratap Bhanu Mehta, president of think-tank Centre for Policy Research, said on Twitter: “On the face of it, Supreme Court is continuing its constitutional usurpation; and many orders are practically unworkable.”

The public interest petition, was filed with the intention to “clean up the bureaucracy”, says Menaka Guruswamy, advocate for the petitioners.

Welcoming the judgment, Guruswamy said, “It is shocking to see that in some parts of the country the average tenure of a bureaucrat is four months. After today, you cannot be moved out because you are honest and because you will not do the executive’s bidding.”

In a bid to usher in transparency the apex court’s judgement argued, “the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests.”

It therefore contended that “there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions, he should record such directions in the file”.

Freeing the bureaucrats from political influence, the court ruled that CSBs would be the final authority. Significantly, where the government chooses to differ from the recommendation given by CSB, it must give reasons for the same as it “would ensure good governance, transparency and accountability in governmental functions”.

The composition of CSB as per the order is that of “high ranking in service officers, who are experts in their respective fields, with the cabinet secretary at the centre and chief secretary at the state level, to guide and advise the state government”.

Differing with the Congress, Dharmendra Pradhan, general secretary of Bharatiya Janata Party, welcomed the decision and said it would “ help bring greater transparency in the system”. But he added that the “decision should not hamper government functioning, especially development work being carried out by the government”.

The order also takes on record the government’s opposition to the idea of CBS as it would interfere with the governmental functions, while the states’ responses “are neither consistent nor positive”. The government had also submitted to the court that it had initiated some steps and a draft Bill entitled “Civil Services Performance, Standards and Accountability Bill, 2010” had been prepared.

Guruswamy points out that the Bill is not in public domain and its contents remain unknown. Both the centre and states had expressed their apprehension that a CSB “would be an intrusion into the executive function of the centre and state governments”.

Liz Mathew and Gyan Varma contributed to this story.