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Weakening of Democracy: Bureaucratic way(Original concise version of the article was published by the Times of India on 5/8/2020 http://toi.in/QWCDYb/a24gk. Now posting the full text.)

Ever wondered what ails the Indian Administrative contraption? Of course, you always have and unfortunately, you are not in the minority, as a large number of people in this country have been besieged with the same though without any convincing answer. There are many facets to the problem, however, let me indicate one of the lesser perceived or discussed in the public domain.

Whenever there’s any untoward incident or systemic failure or for that matter anything that affects individuals, we all, including the media blame the politicians and surprisingly they also blame each other. Our favorite punch bags are necessarily political personalities and their parties. Nothing wrong. In the Democratic system, it’s but natural that they should bear the brunt of the public wrath and hue and cry for system failures as they are supposed to be governing the country. But then Socrates and other philosophers form the birthplace of democracy had warned that, in a democracy, you will not always get capable experts elected to manage affairs of the state. They were right, but then, even after experimenting with many other forms of governance, the humanity couldn’t come out with a better alternative to democracy even after two and half millennia. No, nothing to show sings of despair about the system of governance.

Having realized the lacuna pointed out by Socrates and others, the Democratic set up was improvised by creating well trained and the permanent bureaucracy as experts in the statecraft to assist and support the democratically elected people’s representatives. In other words, expert and capable officialdom is critical and equally important for a vibrant democracy. Having realized the fears expressed by Greek philosophers and by taking a cue from other Democratic countries, the authors of the Constitution of India included provisions like Article 311 in it to shield the bureaucracy form vagaries of political undue and unconstitutional pressures. This provision is a device that is capable of making bureaucracy, strong enough to thwart any attempts to water down the basic tenets of democracy by anyone. However, human ingenuity knows no bounds if it decides to puncture even strong statutory armor. And, the bureaucracy over a period of last seventy odd years have exactly done that! The naive stand of, course in hush voices, taken by the mandarins is that the political leadership has the power to transfer officials and therefore, good and performing officials are eased out in favor of yes-men and those who toe their line, many a times, not in the right side of the law. Thus, the bureaucracy plays the role of a victim of the people’s representatives. And as said earlier, the politicians become villains in the eyes of the public and eventual punching bags. Am I supporting unscrupulous political leadership? No, on the contrary, I’m trying to analyze whether that’s the cardinal truth. As a part of this system for three decades, in my perception the blame is squarely on the bureaucratic leadership.

The provision in the Article 311 is clear…. that civil servants shall not be removed without any inquiry. This is sufficient enough to act as per the provisions of the Constitution, laws and the larger public good and not to bow down to the illegal machinations of anyone. But then the bureaucratic culture has taken a perennial nosedive towards being subservient to the fear of transfer, the greed to garner “important” posts and post retirement assignments. Had the bureaucracy acted monolithically to uphold the Constitution and the law, things would have been pretty difficult for the unscrupulous elements to create the atmosphere that exists today. Of course, this is known to all and many committees and commissions have made recommendations to stem out the rot. There are plenty judicial pronouncements supporting and strengthening the functioning of the bureaucracy without fear or favor. It’s squarely in the hands of the Bureaucratic leadership to make use of such additional support in addition to the inherent support provided in the Constitution.

The question is not just that the some politicians transfer officials to suit their own agenda or subjugate opposition or to indulge in the activities that are harmful to the society, but it’s a very serious matter that has potential to threaten the existence of healthy democracy. If this trend continues, then, probably, it could jeopardize very survival of the Rule of Law.

This sordid state of affair of unfettered power of political leadership to transfer any official without any rhyme or reason or to bring in pliable or official of dubious background had irked 83 senior retired officers led by former Cabinet Secretary, Chief Election Commissioners, Director of CBI, High Commissioner, IAS, IPS, IFS and IRS officers. To address this problem and to strengthen the democratic system, they filed a Writ Petition in Supreme Court in 2011, which was decided in 2013. This judgement has empowered the bureaucracy to such an extent that it can’t ask anything more to guard itself from the undue political influence in transfers. This is termed as a landmark judgement in the administrative history of India and after spending 34 years in the public service, I feel that there can’t be any better judgement to cleanse the vitiated administrative atmosphere in the country.

The Supreme Court through this Judgement has given just three directions. One, if any superior, political or administrative authority gives oral instructions, then these instructions should be reduced to writing and brought these written instructions to the notice of the same authority. In other words, no one including political leadership can verbally pressurize juniors to do anything that is not right. Secondly, the Governments all over the country shall make legal mandate to provide a fixed tenure. And thirdly, all governments were directed to constitute three member Civil Services Boards (CSB) comprising the Cabinet Secretary or Chief Secretary and other two senior most officials for the postings and transfers of All India Service officials like IAS, IPS etc. at the apex levels at the Centre and the State government respectively. Similar CSBs are also mandated at all the levels of bureaucracy for postings and transfers. These CSBs are mandated to identify a panel of capable, eligible experienced officers suitable for a particular post and submit the list to either the Prime Minister or the Chief Minster for the final decision and it was left to the better judgement of the political head to select anyone from amongst the officers included in the list and not from outside. If the PM or CM wish to differ with the recommendation of the CAB then they can record the reasons for the same and direct the CSB to submit a fresh proposal.

The implication of this judgement is humongous. It simply means, no officer could be transferred before completion of the tenure and if required, he or she could be transferred if found to be doing injustice to the people, but that too only after proper conclusive proof of failure that is arrived at through proper inquiry.

In the essence, the Supreme Court has held the senior-most bureaucratic leadership accountable to protect the government employees from any undue pressures from any internal or external quarters. I believe that there cannot be a better empowerment for transparent and accountable administration than this judgement if implemented in its letter and spirit. However, a cursory glance across the country reveals that the senior bureaucratic leadership has miserably failed in proper implementation of this judgement and thereby depriving people of this country benefits of good governance. This is a high time that the society takes note of this monumental failure of the senior officials and hold them responsible rather than ruing about overpowering tendencies of political leadership. In fact, the concerned legal luminaries could examine whether it’s contempt of the Supreme Court (I believe it is!) and take it up to the judicial forum for the sake of strengthening the Democracy.

By Mahesh Zagade,IASx, xPrincipal Secretary to Government of Maharashtra

My CV post gives a glimpse about me.

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