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Misreading the court

The SC’s ruling on civil services draws on constitutional provisions and stays well within them

November 13, 2013 3:21:36 am

The SC’s ruling on civil services draws on constitutional provisions and stays well within them

This is in response to the article ‘Leaving it to the pros’ (IE,November 8) by eminent political theorist Pratap Bhanu Mehta. Mehta starts by asking what kind of judgment T.S.R. Subramanian and Ors vs Union of India is. However,he proceeds to answer his own question,but not by telling the reader what the judgment actually says. Mehta says that the judgment reflects a “bureaual” mind — a word of his own creation. Unlike Mehta,the Supreme Court did not create any of its own words or structures. The judgment was a restrained one,narrow in the reliefs it gave,and mindful of judicial overreach.

Let us examine the judgment itself. It was written by Justice K.S. Radhakrishnan sitting with Justice P.C. Ghosh. The court formulates three specific directions addressed to the Centre,states and Union territories. First,that they must constitute civil service boards (CSBs) with high-ranking serving officers,who are specialists in their fields,within three months,till Parliament legislates. The court says that the CSB shall guide and advise the Union and state governments on all service matters. The cabinet secretary at the Centre and the chief secretary at the state level would be on the CSBs. The judgment specifies that the views of the CSB could be overruled by the political executive after recording reasons. The court opines that the recording of reasons for actions would contribute to good governance and accountability. Justice Radhakrishnan adds that Parliament under Article 309 can enact a civil service act setting up a CSB.

The judge ensures that the CSB is advisory in nature. He reasons that such a board will ensure more professionalism and efficiency since it consists of experts in fields like administration,management and science. Such relief surely assuages Mehta’s prime concern. By making the board advisory in character,there is no usurpation of the executive prerogative. Apart from a slew of committees,including the Hota Committee,2004,and the second Administrative Reforms Commission (ARC),2008 (headed by Veerappa Moily,presently a cabinet minister),the chief ministers’ conference on effective and responsive administration in 1997 adopted the need for CSBs as part of the statement. Clearly there is consensus on the need for CSBs between pros and politicians.

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The second direction of the court is that minimum tenure of service must be secured for civil servants within three months. Such a recommendation of fixed tenure was made by the Jha Commission in 1986,Central Staffing Scheme,1996,the second ARC and the Hota Committee. The Union of India in its counter-affidavit categorically stated that frequent and arbitrary transfers have always been considered a major reason for the declining standard of administration.

Further,the Union says that it has amended various rules of service pertaining to administrative,police and forest service rules to enable the prescription of a minimum tenure in consultation with state governments. The Union also clarifies that notifications for a two-year minimum tenure have already been issued in Andhra Pradesh,Chhattisgarh,Haryana,Himachal Pradesh,Jammu and Kashmir,Jharkhand,Karnataka,Nagaland,Orissa,Sikkim,Uttaranchal and the joint AGMUT cadre (Arunachal Pradesh,Goa,Mizoram and the Union territories). Therefore,

there is demonstrated executive and political consensus for minimum tenure. The court only extends this to the few states that have not passed such notifications.

The final direction of the SC was to state governments and Union territories to “issue directions like Rule 3(3) (ii) and (iii) of the All India Services (Conduct) Rules,1968,which will be carried out within three months”. This rule provides that the directions of official superiors must be in writing and that any oral instructions must be confirmed by the superior. This is a check on civil servants within the bureaucracy and does not involve the executive or the political class. To portray this rule as somehow being an affront to the power of the political class is patently wrong. The court simply extends the rule to the states.

A common critique is that the court lacks expertise in the areas it adjudicates. Did the SC create these reliefs out of its own judicial imagination? No,a series of state-created committees consisting of experts,paid for by taxpayers,arrived at these conclusions. The reports provide elaborate reasoning for their conclusions.

As for Mehta’s concerns on the misuse of Article 32,the best answer is provided by B.R. Ambedkar. Introducing the draft Constitution in the Constituent Assembly on November 4,1948,Ambedkar said that “the form of the administration must be appropriate to and in the same sense of the form of the Constitution”. He continues that “only when people are saturated with constitutional morality can one take the risk of omitting from the Constitution details of administration and leaving it to the legislature to prescribe”. Ambedkar considered the form of administration so important that he felt that it must be provided for in the text and not left to the legislature to craft.

The court in this case draws on these constitutional provisions and stays well within them. But Ambedkar’s larger point that the form of administration must correspond to the form of the Constitution cannot be lost sight of. Fixed tenures of service and written documentation of instructions speak to the essential requirements of a constitutional democracy,for they enable an accountable bureaucracy within its own hierarchy. These reliefs also enable some protection from political overreach.

Ambedkar called Article 32 the heart and soul of the Constitution. Surely,the rights under Articles 14 and 21 warrant fair and transparent public administration and weakening of the “spoils system”. This is essential for the heart and soul of our Constitution. Mehta may prefer to be ruled by politicians. For the rest of us,I suspect we would like to be partners and citizens of a constitutional democracy. Ambedkar would have expected no less.

Menaka Guruswamy

The writer practices law at the Supreme Court and was part of the team of lawyers that represented the petitioners

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