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Loksatta-Corruption-Eradication

CONTENTS

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.

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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.

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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.

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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.

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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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