| Loksatta-Corruption-Eradication |
EFFICIENT AND RESPONSIVE
BUREAUCRACY
87. In India, bureaucracy could not be insulated from the
political failure and added to the governance crisis over the
years. On account of systemic defects, the bureaucracy could not
ensure competent and farsighted governance with a sense of
direction and fairness, and failed to promote rapid economic
growth. In a country with rigid social hierarchies and vast
poverty and illiteracy, any person with the advantages of
education and a regular wage-earning job automatically wields
considerable power. When the job is in government with all its
colonial hangover,the roles of the public servant and the citizen
are easily reversed. The public servant is transformed into the
master and the citizen becomes the subject. The extraordinary
degree of lifetime security given to a bureaucrat at every level,
with virtually no chance of being brought to book, made it
impossible for any government to give good governance. Added to
this,the political compulsions to indulge in populism and direct
subsidies, converting the citizen into a recipient and the
government functionary into a giver, promoted corruption and
helped in reversing the roles between the master and the servant.
88. While the bureaucracy has lifetime security which is more or
less inviolable,the individual official has no security of tenure
in specific key assignments irrespective of the quality of
performance. While arbitrariness in transfers and postings
demoralized the civil services, excessive security undermined
accountability and efficiency. The excessive obsession with
security has compromised public interest gravely by not bringing
the bureaucrat to book irrespective of corruption, incompetence
or abuse of authority. At the same time, the whimsical,
arbitrary, increasingly partisan and short-sighted attitude of
the political executive in bureaucratic placements has
demoralized the civil services almost irretrievably. Public
interest is rarely the guiding principle in selection of
officials for key executive offices. As a result, people are
burdened with incompetent or dishonest public officials. Where
the selection is good, there is no tenurial security in key
offices irrespective of competence, integrity, fairness or high
quality of performance. Consequently, public interest is severely
compromised, and power has become highly personal and
unaccountable.
89. As a net result, most governments in the country are
incapable of controlling or guiding bureaucracy and in fact end
up serving its interests, collecting taxes only to pay wages.Simultaneously
all government power is reduced to exercise of patronage and
arbitrary bureaucratic placements to serve their transient,
partisan, political, personal or sectarian interests at the cost
of society. The bureaucracy has thus become a directionless vast
Leviathan,which is neither sufficiently empowered to promote
public good,nor accountable to the elected government or the
people. With life -long security, but no real protection to do a
good job,the bureaucracy has failed to safeguard public interest
and is obsessed with self-perpetuation.
90. There is gross administrative incompetence, corruption,
insensitivity and unresponsiveness, completely alienating the
people from governance. No matter how many times governments are
changed, the unchanging functioning of the bureaucracy is the
most distressing feature of our polity as far as the people are
concerned. This has left an ever-increasing gulf between
expectation and reality and the enormous erosion of legitimacy of
the political process. While there are many outstanding public
servants at all levels in the country, bureaucracy as a class has
become an expensive millstone around the neck of the state, to
the extent that it is almost universally despised and derided.
91. The key to bureaucratic reform lies in providing appropriate
security needed to perform a specific job, while enforcing
effective accountability in the overall functioning of a public
servant. The system must be capable of punishing and rejecting
the worst elements, who now have very little to fear, and
rewarding the best elements, who now have very little to cheer
about. The following are the suggested key reforms to promote
public good through an efficient and responsive bureaucracy.
5. 1. Security of Tenure
92. i) Selection of all public officials for key placements as
notified by the appropriate government shall be made in an open,
transparent, accountable and non-arbitrary manner.
ii) The political executive will have the option to consider for
such key placements officials of permanent civil service as well
as competent and qualified persons in professions, private sector
or academia.
iii) Independent and autonomous committees comprised of eminent
public figures, stake-holders' representatives and legislators -
1/3rd of the members drawn from each of the three categories --
shall assess the strength and suitability of the candidates in
the panels proposed by the executive. This assessment shall be in
a transparent manner and the public and press should have access
to it. The candidate approved by the committee as the most
suitable one shall be entrusted with the specific assignment. The
tenure of such an assignment shall be five years.
iv) The person so appointed shall not be removed during
the tenure, except on grounds of gross incompetence or corruption.
In such cases there shall be due enquiry by a competent authority
and if charges are proved, the removal shall be automatic
v) At the end of the tenure, those who were drawn from the
permanent civil service will revert back to their earlier jobs
with all normal benefits.
5. 2. Enforcing Accountability
93. vi) No employee, at any level, can be removed except after an
enquiry by a competent authority, for proven charges of
incompetence or corruption, and for valid reasons recorded in
writing. There may be an administrative appeal in all such cases
of removal, and the appellate authority's order shall be final.
vii) There shall be no judicial intervention in all such cases of
removal, except on grounds of unfair discrimination on the basis
of religion, caste or sex.
viii) Power of retrenchment or discharge:If at any time there is
need for termination of the services of a whole class or group of
public servants fully or partly, the appropriate government shall
have the power to retrench them/discharge their services subject
to normal laws of the land, after paying the severance pay as
prescribed by law. There shall be no appeal on such retrenchment
or discharge.
94. These changes will ensure that all key bureaucratic
placements are non-arbitrary, transparent and accountable. Once
appointed, such functionaries can discharge their duties without
the perpetual fear and uncertainty of being displaced virtually
every day. This will make sure that the political executive's
legitimate authority and influence in key bureaucratic placements
will remain, while eliminating whimsical, arbitrary, partisan,
short-sighted, and transient placements. At the same time, erring
key functionaries as well as other employees can be removed by
the competent authority after enquiry for reasons like corruption
and incompetence. Thus accountability to the political executive,
independent and impartial functioning of the bureaucracy, and a
rational system of reward and punishment based on competence and
performance would all be integral to public services, promoting
efficiency and responsive administration.
SPEEDY AND EFFICIENT
JUSTICE SYSTEM
95. An independent and impartial judiciary, and a speedy and
efficient justice system are the ve essence of civilization.
However,our judiciary, by its very nature, has become ponderous,
excruciatingly slow and inefficient. Imposition of an alien
system, with archaic and dilatory procedures, proved to be
extremely damaging to our governance and society. As Nani
Palkhiwala observed once, the progress of a civil suit in our
courts of law is the closest thing to eternity we can experience!
Our laws and their interpretation and adjudication led to
enormous misery for the litigants and forced people to look for
extra-legal alternatives. Any one who is even remotely exposed to
the problem of land grabbing in our cities, or a house owner who
finds it virtually impossible to evict a tenant after due notice
even for self-occupation can easily understand how the justice
system failed.
96. In the process, a whole new industry of administering rough
and ready justice by using strong-arm tactics to achieve the
desired goals has been set up by local hoodlums in almost all of
our cities and towns, and increasingly in recent years in rural
areas. The clout and money these hoodlums acquire makes sure that
they are the ones who later enter political parties, and
eventually acquire state power. There are countless examples in
almost every state in India of slum-lords, faction leaders, and
hired hoodlums acquiring political legitimacy. Most of them
started their careers attempting to fill the vacuum created by
judicial failure through extra-legal, and often brutal methods.
In addition, the courts have tended to condone delays and
encourage litigation and a spate of appeals even on relatively
trivial matters.
97.The higher courts have taken on themselves too much, making it
impossible for them to be able to render justice speedily and
efficiently. The writ jurisdiction became pervasive and
everything under the sun is somehow made a subject matter of the
writ. For instance, the transfer of an employee in a public
sector undertaking has become a matter of writ jurisdiction by
very involved and dubious logic. Such absurdities undermined the
authority of judiciary and caused enormous damage to public
interest. To take another instance, the courts have time and
again ruled that cooperatives are public institutions, and are
creatures of state, whereas in fact cooperative theory and
practice throughout the world clearly envisage that a cooperative
is a collective private body, created to further the economic
interests of the members in accordance with the principles of
cooperation. This mind-set that state could intervene
everywhere,and that such intervention by definition is good,
ensured that the people's institutions could not flourish in an
atmosphere of freedom, self-governance and autonomy. At the same
time, state's power even to control its own employees and enforce
discipline has been severely eroded. As a net result, the
judicial process only helped to accelerate the decline in
governance.
98. Right to life and liberty, the most vital freedoms guaranteed
in the constitution, could not be adequately safeguarded.
Judiciary is over-burdened and rendered ineffective with
unnecessary litigation, delayed procedures, obsessive concern
with the livelihood of advocates at the cost of justice to
litigant public and indiscriminate application of writ
jurisdiction. Excessive case-load meant that most orders
emanating from courts would be by nature of granting stays
instead of adjudication. The age-old village institutions for
justice were allowed to wither away completely. Local people, who
know all the facts, have neither the means nor access to go
through complicated, incomprehensible court procedures. Touts
flourished and justice suffered. As a result, most citizens avoid
courts except in the most extreme circumstances, when they have
absolutely no other recourse available. Even then, there are 25
million cases pending before various law courts in India.
99. The following are the suggested key features of judicial
reform to overcome these distortions and ensure speedy and
efficient justice.
6. 1. Speedy Justice
i) Constitutional right to speedy justice: Every citizen should
be guaranteed that a criminal case will be adjudicated within one
year, and a civil case within two years. All procedural laws must
be suitably revised to ensure that such a constitutional
guarantee is enforced. Violation of such a guarantee must be
treated as failure of the constitution.
ii) Appeals should be limited constitutionally except in vital
cases so that there is a finality to litigation. There must be a
suitable time frame not exceeding six months in first appeal and
three months in second appeal where permitted.
iii) The courts shall be barred from issuing orders to maintain
status quo except in exceptional cases which warrant such
intervention for reasons recorded explicitly. The period within
which adjudication should be completed viz., one year in criminal
cases and two years in civil cases, shall not be extended on
grounds of status quo orders.
100. 6. 2. Independence of Judiciary
iv) Appointment of judges of supreme court and high courts shall
be made with the prior consent of the Council of State. The
Council of State shall have access to all material pertaining to
a candidate's record and shall examine the candidates and reach a
conclusion by majority decision. The hearings of the Council of
State shall be held in public, with full access to all citizens
and media.
v) The writ jurisdiction meant to protect the fundamental rights
of the citizens shall be clearly defined and focused and shall be
limited to right to life, liberty and equality before law. In all
cases of suspected violation of these three rights, the Supreme
Court and high courts shall be empowered to give specific
remedies. Writ jurisdiction shall not be invoked against routine
administrative actions without infringement of right to life,
liberty or equality.
6. 3. Local Judicial System
101.
vi) For a village or group of villages and in each town and city,
Honorary Magistrates shall be appointed by the District Judge.
These Magistrates,drawn from the local community, shall have
specific and exclusive jurisdiction in both civil and criminal
matters, upto a limit of Rs 100,000 in civil matters, and one
year's imprisonment in criminal matters. The civil jurisdiction
may be enhanced by law from time to time, or adjusted to
inflation index. The Honorary Magistrate shall hear the cases
locally, examine the evidence personally by summary procedure and
adjudicate within a period not exceeding three months. There
shall be the following safeguards against abuse of authority by
Honorary Magistrates:
(a) An appeal against an Honorary Magistrate shall lie with the
District Judge.
(b) The Honorary Magistrates are liable to be removed by the
District Judge if they are found to be incompetent in their
functioning,or for malafide exercise of power.
(c) The Honorary Magistrates shall be liable for prosecution and
punishment if they resort to corruption or malafide exercise of
power.
d) The Honorary Magistrate shall have a fixed tenure of three
years, which can be extended by another term by the District
Judge.
These measures will ensure that justice is speedy, efficient,
equitable, inexpensive, accessible and non-arbitrary.
TRANSFER OF POWER Vs TRUE
FREEDOM
102. What happened in 1947 was mere transfer of power from the
colonial masters to the indigenous oligarchies. In our anxiety to
preserve unity at all costs, we accepted centralization of power
and marginalisation of the role of people. We accepted many
institutions purely on grounds of familiarity, rather than
suitability to our conditions and needs. We gave the public
servants enormous power, security, and privilege at the cost of
the people who are supposed to be their masters. We made our
justice system totally inaccessible, incomprehensible, dilatory
and complicated. Power of state functionaries is highly skewed,
with positive power severely restricted, and negative power
unchecked. While the good is inhibited, evil is unrestrained,
thus suppressing the best, and bringing out the worst in our
state functionaries. As a net result, the weaknesses of each of
these institutions further weakened the others, and undermined
our stability, democracy and progress. As a consequence, the
nation is now at the cross-roads, facing the imminent dangers of
anarchy, despotism, and balkanisation.
103. The above proposals for reform, based essentially on the
fundamental principles of democratization of our polity,
decentralized governance, debureaucratisation of our
administration and ensuring speedy and efficient justice, are
well-integrated and holistic in nature. They are all vital for
strengthening democracy and self- governance, ensuring greater
accountability and transparency and promoting empowerment and
participation. Above all, these reforms will create and
strengthen institutions, and render them capable of self-correction
and improvement on a sustained basis. No human institution can be
perfect. It is impossible to anticipate all the future
eventualities and provide for every contingency . However, if the
institutions are designed to stand the test of basic, inviolable
constitutional principles, and mechanisms of self-correction and
improvement are provided for constant evolution and sustained
adaptability, then the ghosts of the past can be exercised, the
concerns of the present can be addressed and the future of our
children can be safeguarded. The basic philosophy underlying
these proposals is the faith in the ability of the people of
India to safeguard, strengthen and promote democracy and self-governance,
if adequate opportunity is available.
ARE
THE PEOPLE READY?
104. A pertinent question may be raised as to whether a reform
agenda based on democracy, self-governance, empowerment and self-correction
will be understood and accepted by the people at large.The basic
question we have to answer for ourselves is whether we,the people
of India, or for that matter any other people, are capable of
self-governance. Objective evidence shows that if only
institutions are properly designed to facilitate good governance
and participation, people tend to improve them and strengthen
freedom and democracy. Indian voters have time and again been
demonstrating their desperate urge for a holistic reform throug
powerful signals. The persistent rejection vote dismissing the
governments of the day in most states and the union, the
increasing mistrust of the government and its machinery, the
widespread contempt for politics-as- usual,the ready recourse to
demonstration, agitation and violence, and the responsive chord
struck by trenchant critics of the establishment -- all these
bear ample testimony to people's disenchantment with the existing
governance structure, and their readiness to welcome a new order.
In the face of this,if the reform agenda is properly designed and
integrated,based on the first principles of self-governance,
empowerment and self-correction, so that democratic institutions
can be run most effectively and improved constantly, the people
at large will certainly understand such an agenda, and will
accept it unreservedly.
Citizens' Concern Dissipated
105. There are millions of Indians who are deeply concerned about
the future of our country and the democratic system. The most
likely topic of conversation when any two Indians who have some
leisure at their disposal meet is the decline of our democratic
institutions and the condition of the Indian state. However,all
this deep concern is not translated into meaningful action on a
sustained basis on account of three formidable obstacles.
106. Firstly, most people do not have adequate exposure to our
institutions of governance to appreciate the larger malaise
affecting the Indian state. In the absence of a holistic
perspective, most people tend to view the crisis through a
tunnel, facilitating a highly skewed and very partial
understanding, very much akin to a blind man describing the
elephant.In the absence of comprehensive understanding of our
governance structure, these partial, half-truthful perceptions do
not enable us to unravel the intricate and vital linkages among
various institutions. Without such understanding of the linkages,
it is not possible to make any serious beginning of any
meaningful reform to resolve the crisis facing our governance.
107. Secondly, most people are overawed by the vastness of India,
the complexity of our society, and the magnitude of the crisis
daunting us. India defies easy description or analysis. The huge
population, the vertical fragmentation of our society for ages,
the relative immobility of the population, the enormous poverty
and drudgery, and the complex cultural baggage leading to uneasy
coexistence of several layers of our society from the medieval
period to the modern era -- all these constitute a mind-boggling
and often frightening reality paralyzing all participants and
observers into inaction.
108. Thirdly, in the modern technological world, with increasing
opportunities for rapid economic growth, most well-informed and
perceptive Indians are consumed by the day-to-day individual and
family concerns. The history of the freedom struggle led us to
believe that legitimate personal concerns for survival and growth
are incompatible with the quest for national good. The Indian
nationalism during freedom struggle was largely based on the
anger against racial bigotry, cultural atavism as a defence
mechanism to shore up self-esteem and an idolatrous sense of
patriotism with deification of Mother India serving as an
emotional anchor. Colonial economic exploitation was certainly a
factor in shaping the Indian nationalism, but its role was
relatively subdued in giving expression to nationalistic fervour.In
this backdrop of emotionalism and patriotic fervour, individual
concerns seemed to be irrelevant and incompatible with the
national goal. However, in a modern democratic nation-state,it is
very difficult to generate such heightened patriotic fervour on a
sustained basis. In a rapidly changing world, even a few years of
neglect of personal goals have very painful economic and
emotional consequences to most people. Therefore, the fear of
insecurity and uncertainty at the prospect of having to give up
personal life for the national cause deters most thinking Indians.
FROM CONCERN TO CONCERTED
ACTION
109. In order to translate the deep concerns of many Indians
about the nation into tangible and meaningful action, we have to
overcome the three hurdles of tunnel vision, paralysis in the
face of seemingly intractable crises and the inability to
reconcile personal goals with national goals. We have to take
steps to make people understand the larger picture of our
governance structure with all its intricate linkages. Such an
effort must be largely based on institutions with which the
citizen is concerned on a day-to-day basis, and the vast
reservoir of experience in dealing with these local institutions
and state functionaries. The national agenda for holistic
transformation must thus be derived from the experience of
people, shorn of complex democratic theory and incomprehensible
verbiage.
110. The paralysis gripping most people must be overcome by two
means. Firstly, there must be organized,collective action with
effective networking. An individual in the face of seemingly
insurmountable problems is reduced to impotence. However, once
the citizen appreciates that the concerns are common and the
struggle is collective, fear and paralysis can be overcome to a
large extent. Secondly, the gigantic task of transformation of a
nation comprising a sixth of humanity must be divided into easily
comprehensible, and readily attainable, relatively small day-to-day
goals, which together form a large pattern leading to sweeping
changes. The person who sees a huge mountain to be conquered in
front of him is easily frightened by the thorny and difficult
path, the rugged mountainside and the steep climb to the top. No
matter how long he fixes his gaze at the mountain top, he will
not be nearer to his target even by a fraction. The only sane and
practical response to such a situation is taking a step at a time
and concentrating on the immediate day-to-day targets instead of
being distracted by the large and seemingly insurmountable
obstacles, without, however, losing direction.
111. Finally, we must create an organizational framework in which
ordinary individuals can reconcile their personal goals and the
ordinary mundane struggle for survival, with the mammoth task of
national rejuvenation. We must create a mechanism in which all
concerned individuals can deploy their surplus energies, time,
talent and resources in a sustained, enduring and productive
manner with a clear understanding of the goals and intimate
knowledge of the day-to-day steps to achieve the goals.
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