The petition comprised five sections: (i) introduction, (ii)
background, (iii) some major concerns, (iv) the issues, and (v) the prayer.
While drafting the petition, a note was taken of the fact that the court had,
in the past, declined to entertain a PIL by Common Cause, an NGO in Delhi,
which related only to some matters such as arbitrary transfers. A public
interest litigation (PIL) on the non-implementation of the recommendations of
the National Police Commission by the central and the state governments too
has been pending in the Supreme Court for quite some time. It was therefore
felt that the issues pertaining to civil services should be dealt with on a
larger canvas of good governance, fundamental rights and the basic structure
of the Constitution. As a result, the PIL did not just seek safeguards for
retaining the apolitical character and independence of civil services but
equally importantly also dealt with improving their efficiency, integrity,
morale and public image.
The founding fathers of the Constitution wisely provided, by
making provisions in Part XIV of the Constitution, for apolitical and
independent civil services, with requisite protection for service matters.
These provisions pertain not just to the union but also the states. One of the
provisions of the Constitution (Article 312) which was hotly debated and faced
considerable opposition, particularly from the provincial governments,
pertained to the creation of All India Services (AIS) with recruitment based
on all India competitive examination and dual control by the centre and the
states. Such a constitutional protection was meant to enable the AIS to
operate independently, freely, objectively and fearlessly. It is a travesty
that the AIS, and particularly the Indian Administrative Service and the
Indian Police Service officers, are the worst sufferers in the last three
decades due to the onslaught of the political executives, making a mockery of
the erstwhile much acclaimed steel frame of the country.
The years since independence have seen progressive, marked and
unabashed interference in the management of civil services and excessive
political interference, and arbitrary, unguided and blatant misuse of
discretion in all personnel matters, even at the highest levels of
bureaucracy. Introduction of self-serving criterion such as “officer enjoying
the confidence of the government” for purposes of promotions, postings and
transfers has led to highly personalised administration. This is against all
precepts underlying the creation of permanent civil services. Rule of law,
equality before law and equal protection of law are given a go by in the
process. This is not the governance, which was visualised by the Constitution
and is an anti-thesis of democratic and accountable government. This is
nothing but authoritarian use of power by a democratically elected government.
Inevitably, this has led to politicisation of the services leading to the
civil services becoming the instruments and handmaiden of the political party
in power. Thus, the constitutional protection to civil services has not just
been eroded but has been wiped out altogether. This has led to a substantial
decline in their morale and the standards of their efficiency and integrity.
Public image of a civil servant is now that of a rent seeker and exploiter who
has no respect for the rule of law. He has ceased to be either civil or a
servant of the society. One noteworthy feature in this behalf is that the
situation is equally bad and worrisome at the centre and the states, and
irrespective of which political party is in power.
The petition brings out that the dangers of political
interference in and politicisation of services and dilution of their
independence, objectivity, and freedom to give frank and dispassionate advice
were clearly foreseen by the founding fathers of the Constitution. As H M
Seervai (1996) has emphasised, “If the Constitution made no attempt to
demarcate the respective spheres of the civil servants and ministers, their
functions and duties, it was assumed that the British model which we have
adopted gave sufficient guidance to the relation between a permanent
non-political civil service and the ministers in charge of the various
departments of the state… However, the draft Constitution had reached a stage
on October 10, 1949 where it was impossible to devise a new scheme for the
selection, appointment, transfer, promotion and other matters affecting the
members of the civil service.” As brought out in the reports of a number of
committees, commissions and experts, cited in the petition, the constitutional
safeguards have largely remained on paper. As in the case of some of the other
institutions created by the Constitution, it is necessary to recognise that
the weakening of the civil services too has serious deleterious effect on the
working of the Constitution.
The petition deals with some major concerns and discusses the
issues, which are basic to the very survival of independent, apolitical civil
services in the country. These include, among others, personnel matters such
as transfers, postings, suspension from service, compulsory waiting,
promotions, empanelment, foreign postings, extensions in service,
re-employment, post-retirement assignments and so on. Admittedly, there are
serious limitations to individual officers approaching the courts for getting
relief. These limitations are on the part of both the aggrieved officer –
costs involved in approaching the courts and difficulties in establishing the
mala fides on the part of the government – as also the courts – the extent to
which courts can interfere in day to day administration and substitute their
judgments for those of the government. In the process it is the public
interest, which suffers. Some systemic and institutional changes are,
therefore, necessary to make sure that all such personnel matters are decided
solely in public interest according to statutory rules and regulations and on
the advice of statutory civil service boards. If, for any reasons, the
political executive wants to use its discretion in an individual case and go
against the recommendations of the statutory civil service board, it must be
incumbent on it to pass a speaking order. In all important matters pertaining
to higher civil services, it must be obligatory on the government to lay a
statement on the table of parliament/state legislature whenever it decides to
over-rule the civil service board.
It is pertinent to note that the petition does not merely ask
for protection for the civil services but also deals with some important
matters aimed at enhancing the accountability of the civil services, improving
their standards of integrity and underlining their commitment to good
governance. The petition discusses the two most important issues. First, does
the petition involve public interest? And second, is it a fit and proper case
for the court to intervene in the domain which has been so far generally
considered to be the prerogative of the elected executive? The petition argues
that there is overwhelming evidence to show that matters pertaining to good
governance clearly involve public interest. This is well recognised the world
over and a number of countries are taking energetic steps to provide to their
citizens an accountable, people-friendly, sensitive and clean government.
Increasing transparency in governance has become one of the prime objectives
in a number of democracies. India is still a long way off from achieving these
objectives and has not been able to provide even rudimentary framework of good
governance in the country. Insofar as the second question is concerned, the
petition urged that good governance and apolitical and independent permanent
civil services should be declared by the court as a part of the basic
structure of the Constitution and an inalienable and intrinsic part of the
scheme of the Constitution. Unless this is accepted, the fundamental rights
and the basic structure of the Constitution, which the court has held
sacrosanct and inviolable, will largely remain on paper. It is only by
declaration of good governance as basic to the proper working of the
Constitution and apolitical, permanent civil services as one of the
instruments for its realisation that foundation can be laid for some
structural and overdue reforms in civil administration in the country.
Protection to Civil Services
The final section entitled the prayers contain a number of
wide-ranging and important suggestions for providing protection to the civil
services in the light of experience analysed in the petition and,
simultaneously, improving perceptibly their performance, efficiency,
accountability and integrity. These comprise: declaring good governance and
permanent and politically neutral civil services as intrinsic to the scheme of
the Constitution and part of its basic structure; laying down that officials,
before starting their career, in addition to taking the oath of loyalty to the
Constitution, should also swear to abide by the basic principles of good
governance so as to give unequivocal commitment to the basic tenets of the
Constitution. Towards this end, the government servants conduct rules should
be completely rewritten so as to be in accord with modern notions of
accountability; all personnel matters pertaining to civil services such as
transfers, promotions, empanelment, extension of service after retirement,
re-employment and so on should be governed by statutory rules and regulations
framed after following the procedure of pre-publication of the draft rules and
regulations so as to ensure wider consultation with all stakeholders. In view
of the large-scale misuse of the power of suspension by some state
governments, the rules should, inter alia, provide that suspension of an
officer can be effected only after preliminary enquiry and after seeking the
advice of the civil service board (CSB); all personnel matters pertaining to
All India Services (AIS) and other higher civil services should be the
responsibility of statutory civil service boards; setting up of the such
boards at the level of government of India (GOI) and the state governments as
also at the lower levels with composition suggested in the petition; their
recommendations to be binding on the government and when the government
over-rules the board, a statement giving reasons therefor should be recorded
on the file and placed on the table of the legislature/parliament; whenever
cabinet secretary or chief secretary or director general of police is proposed
to be shifted peremptorily before completion of his term and/or retirement,
the government must get a panel of suitable names for appointment from the
central CSB. It must be incumbent for the government to make a selection only
from the panel furnished by the CSB; there should be total ban on extensions
and re-employment of officers after retirement and appointment of retired
officers on statutory bodies and regulatory commissions should be permissible
only if there are independent statutory selection boards or prescribed
statutory procedures for selection for incumbents for these posts; an officer
who is not empanelled for the post of joint secretary in GOI or a secretary in
the state government, and for each stage of promotion thereafter, should be
retired and this rule should also be extended to field organisations, the
central services and state civil services at appropriate levels; there should
be a cooling off period of two years after retirement before a public servant
can join a political party; annual returns of movable and immovable property
filed by officers should be in public domain and put on a designated website
by the state governments and GOI; departmental actions initiated against
officers should not be treated as secret and the details of these cases as
also the progress thereof should be posted on the website; no permission
should be required to be obtained by the central bureau of investigation (CBI)
or other anti-corruption authorities for commencing anti-corruption inquiries
against any officer or for further consequent actions such as carrying out
raids; police should have full authority to launch prosecutions in
anti-corruption cases. No approval of the government should be necessary for
the purpose and any withdrawal of prosecution should be only with the prior
approval of the Lok Ayukta and the state public service commission in the case
of state government servants and of Union Public Service Commission (UPSC) and
the Central Vigilance Commission (CVC) in respect of AIS and the central
services. In the states in which there is no Lok Ayukta, the decision of the
state Public Service Commission should be final; state and central governments
should enact a Public Interest Disclosure Act (Whistleblowers Act) to give
protection to bonafide informants against retribution and any form of
discrimination for reporting what they perceive to be wrong-doing in their
organisations and the act may contain salutary safeguards as in the United
Kingdom Act on the subject; the government should enact a comprehensive law to
provide that where a public servant causes loss to the state by his mala fide
actions or omissions, he should be made liable to make good the loss caused
and, in addition, should be liable for damages; central government should
frame Rules under section 8 of the Benami Transactions (Prohibition) Act,
1988, for acquiring benami property and enact a law to provide for forfeiture
of benami property of corrupt public servants as well as non-public servants;
government should take early steps to enact a law for confiscation of
illegally acquired assets on the lines suggested by the Supreme Court
itself in the case of Delhi Development Authority v Skipper Construction
Company (AIR 1996 SC 2005); the Prevention of Corruption Act, 1988, be amended
to provide for confiscation of the property of a public servant who is found
to be in possession of property disproportionate to his/her known sources of
income and is convicted of the said offences and in such a case, the law
should shift the burden of proof to the public servant who was convicted and
the proof of preponderance of probability should be sufficient for
confiscation of property; a comprehensive examination of the corpus of
administrative jurisprudence be undertaken to rationalise and simplify the
procedures of administrative and legal action so as to re-establish the
accountability of a public servant and to ensure that while honest and
efficient public servants are given the requisite protection, the dishonest
are not allowed a long rope; the Official Secrets Act, 1923, should be
repealed and replaced with a law with more restrictive scope confined to
certain matters such as national defence, national security, law and order,
investigation of crime, external relations and atomic and trade secrets, etc,
and pending such an enactment, the existing law be amended to provide at least
for public interest as a defence by a person charged under the Act; the Police
Act, 1861, be replaced by a more modern, forward-looking enactment; a
statutory national authority, with autonomy and independence, be established
to pursue the cases pertaining to the nexus between criminals, bureaucrats and
politicians along the lines of the recommendations of the committee on reforms
of the criminal justice system[GOI 2003]; all state governments and the
central government be directed to bring out annual reports on the management
of civil services to make available relevant information in a consolidated
form for use of stakeholders in society.
These reports need to be prepared under the guidance of a
multi-disciplinary team comprising, among others, management experts,
academics, and other prominent persons in public life to focus attention on
issues pertaining to civil service reforms and improving the governance in the
country; a standing statutory National Civil Service Commission (NCSC) may be
appointed comprising five persons of outstanding merit from diverse sections
of society to oversee the functioning of the civil services in the country and
suggest ways for improving the standards of their performance, efficiency,
productivity, accountability and transparency. The NCSC should have only a
skeleton staff of its own and may make use of consultants and experts on a
contract basis for its studies. The NCSC should bring out an annual report and
special reports, as may be necessary, and these be placed on the table of
parliament/state legislatures, as and when they are received. This long list
of prayers essentially comprises four submissions, namely, to declare good
governance as a part of the basic structure of the Constitution and to also
declare that apolitical and independent civil services are an integral part of
the scheme of the Constitution, providing statutory safeguards for personnel
matters, promoting integrity and efficiency of civil services, and
surveillance over them by the civil society.
The petition forcefully argued that fundamental rights
enshrined in the Constitution cannot be safeguarded unless civil services are
given independence and are made accountable for their actions and inactions.
In Ajay Hasia v Khalid Mujib (AIR 1981 SC 487 at 493: (1981) 1 SCC 722),
Bhagwati, J, has observed, “It must be remembered that the fundamental rights
are constitutional guarantees given to the people of India and are not merely
paper hopes or fleeting promises and so long as they find a place in the
Constitution, they should not be allowed to be emasculated in their
application by a narrow and constricted judicial interpretation.”
The petition has underlined that the basic structure of the
Constitution which has been held inviolable by the Supreme Court too would
remain on paper unless the civil services are protected from the onslaught of
excessive politicisation and political interference. This is evident from the
half-hearted manner in which some of the basic features of the Constitution
such as the rule of law, conduct of free and fair elections, rights of
minorities, secularism or welfare of weaker sections of society are
implemented in the country.
The words ‘governance of the country’ appear only in Article
37 of the Constitution in Part IV on Directive Principles of State Policy but
good governance is writ large and implicit in several provisions of the
Constitution. Time has come to declare right to good governance as a
fundamental right under Articles 14, 19 and 21 of the Constitution. There is
some merit in making it explicit as was done by the Supreme Court in respect
of a number of other rights such as right to privacy, right to information,
freedom of press, environmental protection and so on. In Maneka Gandhi (AIR
1978 SC 597: (1978) 1 SCC 248), the landmark case which initiated the process
of expansion of the scope of Article 21, the Supreme Court has observed, “The
attempt of the court should be to expand the reach and ambit of the
fundamental rights rather than to attenuate their meaning and content by a
process of judicial construction.”
In Unni Krishnan J P v State of Andhra Pradesh (AIR 1993 SC
2178: (1993) 1 SCC 645), the Supreme Court has even enunciated the doctrine of
implied fundamental rights. The court has asserted that in order to treat a
right as fundamental right, it is not necessary that it should be expressly
stated in the Constitution as a fundamental right. Political, social and
economic changes occurring in the country may entail the recognition of new
rights and the law in its eternal youth grows to meet social demands. This is
evident from the fact that by interpretative process, several new fundamental
rights have been recognised by the court in addition to those which have been
expressly stated as such in the Constitution. These include, among others
referred to earlier, right to livelihood, right to medical care, right to
shelter, and so on. In Francis Coralie (AIR 1981 SC 746 at 753: (1981) 1 SCC
608), the Supreme Court has declared, “We think that the right to life
includes the right to live with human dignity and all that goes with it.” In
State of West Bengal v Ashok Dey, the Supreme Court has held that, “The
expression ‘personal liberty’ in Art 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of man
and some of these have been raised to the status of distinct fundamental
rights.” This is further borne out by the observations of the court in
Pathumma v State of Kerala, (AIR 1978 SC 771: (1978) 2 SCC1), that in
interpreting the Constitution, “the judicial approach should be dynamic rather
than static, pragmatic and not pedantic, and elastic rather than rigid” [Jain
2003].
As opposed to the doctrine of exclusivity and treating each
right as a distinct and a separate entity, the Supreme Court has recognised
that fundamental rights are not all distinct and mutually exclusive and each
freedom has different dimensions.
Ensuring Good Governance
The fundamental rights play a noteworthy role in the area of
administrative law due to the phenomenal increase in the functions, powers and
activities of civil administration, particularly in a welfare state. A large
amount of discretion has to be inevitably left in the hands of administration.
This has meant close scrutiny of both the administrative laws as also the
procedures to ensure that they do not bestow arbitrary and unregulated
discretion in the hands of administration. This brings out the close
inter-relationship between the fundamental rights and good governance. Good
governance requires, among others, sound, forward-looking and enlightened
constitutional framework, democratic governance, independent judiciary,
freedom of press, and independent, apolitical, neutral and fearless civil
service owing allegiance to the Constitution and the rule of law and not to
the political party in power. While a great deal has been done, debated and
translated in reality in respect of the first four items, the last named item
pertaining to the civil services has been totally lost sight of and has often
been pushed under the carpet. And the disastrous consequences are there for
all to see. It must be realised that independence of civil services is no less
important or significant for the working of the Constitution than the
independence of the judiciary.
It is not enough to declare good governance as a fundamental
right and independent, apolitical, neutral and fearless civil services as one
of the instruments for its realisation since not all fundamental rights are a
part of the basic structure of the Constitution. It is necessary to declare
the right to good governance as a part of the basic structure of the
Constitution. The doctrine of basic structure can strictly be invoked only
when any amendment of the Constitution or legislation strikes at any of the
basic features of the Constitution. But, over the years, the Supreme Court has
pronounced several features of the Constitution as a part of the basic
structure. In the Indira Gandhi case, Chandrachud, J, has held that the proper
approach of a judge, who is confronted with the question whether a particular
facet of the Constitution is a part of the basic structure, is to examine in
each individual case, the place of the particular feature in the scheme of our
Constitution, its object and purpose, and the consequences of its denial on
the integrity of our Constitution as a fundamental instrument for the
governance of the country (emphasis added) [Sathe 2002]. In Indra Sawney
v India ((1992) 22 ATC pp 385, 670 (para 398)), Sawant, J, has stated,
“Constitution being essentially a political document has to be interpreted to
meet the felt needs of the time. To interpret it ignoring the social,
political, economic and cultural realities is to interpret it not as a vibrant
document alive to the social situation but as an immutable cold letter of law
unconcerned with the realities”. Justice V R Krishna Iyer has emphasised that,
“The sweep and scope of the basic structure is still moot” [Iyer 2003].
The petition did not ask the court to rewrite the Constitution
in any way. It prayed that the protection given to the civil services by the
Constitution which has become a dead letter should be made a reality and the
government be directed to put in place statutory safeguards for the purpose.
The petition also requested the court to make the right to good governance
which is implicit in various provisions of the Constitution explicit as has
been done by the court in respect of some other fundamental rights referred to
earlier. Over the years, the Supreme Court has enunciated important
constitutional doctrines such as the basic structure of the Constitution,
enlarging the scope of fundamental rights, bringing about greater coherence
between the Directive Principles of the State Policy and fundamental rights
and so on. The decision of the Supreme Court in the Bommai case gave an
altogether new interpretation to Article 356 of the Constitution and made it
practically impossible for the central government to invoke the provisions of
this article indiscriminately as in the past.
Structure of CBI
In Vineet Narain v India, the Supreme Court thought it fit to
go into the constitution of CBI and its control mechanism. The court rightly
held that, “No doubt, the overall control of the [investigative] agencies and
responsibility for their functioning has to be in the executive, but then a
scheme giving the needed insulation from extraneous influences, even of the
controlling executive, is imperative” ((1998) 1 SCC 226, 243). In this case,
the court went into the structure of the CBI and suggested procedure for
selecting its director. The court monitored the proceedings through what was
called “continuing mandamus”. According to S P Sathe (2002:145), “in laying
down the structure of the CBI and stating how the vigilance commissioner
should be appointed, the court doubtless exceeded its powers. But this
judicial excessivism was received well. Critics of judicial activism have
often argued that the Supreme Court and the high courts have, in recent years,
pronounced a number of decisions on matters which can be said to fall within
the purview of the executive. As compared to this, what the PIL in question
asked for was by no means exceptionable since the petition basically contained
two submissions: One, it sought the intervention of the Supreme Court to
direct the government to put in place statutory and other safeguards for
translation of the protection given by the Constitution to the civil services
in general and the AIS in particular. Second, equally importantly, the
petition sought to make the civil services accountable and effective
instruments of good governance by perceptibly increasing their integrity,
efficiency, morale and public image. The systemic and institutional changes
suggested in the petition would have greatly strengthened and perceptibly
improved the working of the Constitution and eventually even led to a
reduction in the workload of the judiciary.
Over the last 50 years, a number of committees and commissions
have applied their mind to the issues critical for the proper management of
civil services. Unfortunately, their recommendations have fallen on deaf ears.
Neither the state governments nor the central government, irrespective of
which political party was in power, has taken any interest in reforming the
system. In fact, there is a secular and all-round deterioration in governance
at all levels. Therefore, as a last resort, this comprehensive PIL was filed
in the Supreme Court. In view of the several constitutional issues and matters
of serious public interest brought out in the petition, the petitioners had
hoped that it would be admitted for substantive hearing and notices
issued to the central government and all state governments. Unfortunately,
these expectations have been belied. Maybe we, as a country, have still not
reached the nadir of governance and considerable further downhill journey
still remains, in spite of the slogans of ‘Mera Bharat Mahan’ and ‘Shining
India’.
References
Government of India (2003): Report of the
Committee on Reforms of the Criminal Justice System, Ministry of Home
Affairs, March.
Iyer, V R Krishna (2003): Constitutional Miscellany, Eastern Book
Company, Jaipur, pp 3-4.
Jain, M P (2003): Indian Constitutional Law, fifth edition, Wadhwa and
Company, Nagpur.
Sathe, S P (2002): Judicial Activism in India: Transgressing Borders and
Enforcing Limits, Oxford University Press, pp 93-94.
– (2002): Op cit, p 145.
Seervai, H M (1996): Constitutional Law of India, fourth edition, Vol
3, N M Tripathi (Private) Limited, Mumbai, 1996, pp 3055-3056.