The Governor, the Constitution and the Courts

Dr M N Buch 

(Visiting Fellow, VIF)

The Supreme Court of India, in a Division Bench consisting of Dr. Justice B.S. Chauhan and Mr. Justice Fakkir Mohammed Ibrahim Kalifulla, has disposed of a civil appeal filed by the State of GujaratVs. Hon’ble Justice R.A. Mehta on the question of appointment of the Lokayukta in the State of Gujarat. The sequence of events as narrated in the judgment is:-

Under the Gujarat Lokayukta Act 1986 the Governor appoints the Lokayukta as per the procedure given in the Act. As per the procedure, as stated by the Supreme Court, the Chief Minister, in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition makes a recommendation to the Governor, on the basis of which the appointment is made.

The post fell vacant on 24.11.2003 and remained so for about three years. In August 2006 the Chief Minister wrote to the Chief Justice, suggesting the name of Justice K.R. Vyas. The Chief Justice concurred and the matter was sent to the Governor, who sat on it for the next three years.

In December 2009 the Secretary to the Governor requested the Registrar General of the High Court to obtain a panel of names from the Chief Justice for consideration of the Governor. About two months later the Chief Minister wrote a similar letter to the Chief Justice, who replied almost immediately suggesting the names of four retired judges.

The Chief Minister tried to consult the Leader of Opposition, who replied that the Chief Minister had no power to consult him, especially because the Governor had already initiated the process and the Chief Minister had no locus standi.

During this period the Gujarat Council of Ministers met and recommended the name of Justice J.R. Vora (retired) for appointment as Lokayukta. This suggestion was forwarded to the Governor, who again sat on it.

The Governor sought the opinion of the Attorney General about the process of consultation. He also wrote to the Chief Justice asking which of two retired judges, Justice R.P Dholakia and Justice J.R. Vora, the Chief Justice preferred.

The Attorney General opined that the Chief Justice need not suggest a panel but only one name. The Chief Justice communicated his preference for Justice R.P. Dholakia, but on the insistence of the Governor he recommended the name of Justice S.D.Dave (retired) because Justice J.R. Vora had been appointed elsewhere. Meanwhile the Chief Minister wrote to the Governor again stating that his recommendation about Justice JR Vora stood as the Hon’ble Judge had expressed willingness to be considered for the post of Lokayukta.

The Chief Justice now recommended the name of Justice R.A. Mehta (retired). The Chief Minister, on 16.6.2011, requested the Chief Justice to reconsider his recommendation because Justice Mehta was above seventy-five years of age and was also associated with NGOs and organisations known for antagonism against the State Government. The Chief Justice rejected this contention of the Chief Minister and again recommended the name of Justice R.A. Mehta. The Leader of Opposition said that he had been consulted by the Governor and approved the appointment of Justice R.A. Mehta. On 25.8.2011 the Governor issued the warrant of appointment.

I have narrated the sequence of events at length because this is a clear-cut case of all the players, but especially Governor of Gujarat, deliberately playing games according to their own set of rules and their own political agenda. For three years between 2003 and 2006 the State Government did not initiate the appointment of the successor of Justice S.M. Soni. Thereafter the Governor sat on the file for three whole years. The Governor then bypassed the Chief Minister and entered into direct correspondence with the Chief Justice and the Leader of Opposition. The Governor also chose to completely ignore the advice of the Council of Ministers and kept the Chief Minister out of the loop for appointment of the Lokayukta. The whole issue, therefore, boils down to whether the Constitution of India permits this and whether the Gujarat Lokayukta Act 1986 can permit the government to act otherwise than on the aid and advice of his Council of Ministers mandated by Article 163 of the Constitution.

In paragraph 74 of the judgment, which gives the conclusions, the Hon’ble Supreme Court has very rightly pointed out that for nine years the post of Lokayukta lay vacant because only half-hearted attempts were made to fill the post. Regarding the Governor, the Hon’ble Court has said, “The present Governor misjudged her role and has insisted that, under the Act, 1986, the Council of Ministers has no role to play in the appointment of the Lokayukta and that she could, therefore, fill it up in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition. Such an attitude is not in conformity or in consonance with the democratic set up of government envisaged in our Constitution. Under the scheme of our Constitution the Governor is synonymous with the State Government and can take independent decisions upon his or her discretion only when he or she acts as a statutory authority under a particular Act, or under the exceptions provided in the Constitution itself. Therefore, the appointment of Lokayukta can be made by the Governor, as Head of State, only with the aid and advice of the Council of Ministers and not independently as a statutory authority”. This statement alone should have been enough for the Supreme Court to have accepted the appeal of the Government of Gujarat and set aside the appointment of Mr. Justice R.A. Mehta. However, the Supreme Court, in its wisdom, has chosen fit to rule that the Governor was wrongly advised that she could ignore the Council of Ministers, but because of the facts in this particular case, the Chief Minister was aware of the circumstances and, therefore, giving primacy to the opinion of the Chief Justice was perfectly in order. This meant that the process of consultation stood complete and the appointment of Justice R.A. Mehta could not be considered illegal.

Under Article 141 of the Constitution every judgment of the Supreme Court is a law declared by it and, therefore, is binding and must be respected by all. I accept this proposition and respect the decision of the Supreme Court in the instant case. The question remains whether this is the final say in the matter of the powers of the Governor and his constitutional position vis-à-vis the Council of Ministers. With utmost respect to the learned Hon’ble Judges who constituted the Bench, perhaps this matter should have gone to a larger Bench, preferably a Full Bench, not on facts but because a very important question of constitutional law was involved. In this behalf I would like to point out that the Gujarat Lokayukta Act 1986 is one of the worst drafted pieces of legislation it has been my misfortune to come across. Under section 3 the Governor is the appointing authority for appointment of the Lokayukta. Such appointment is to be made after consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Vidhan Sabha. In the entire Act the Chief Minister and the Council of Ministers and the Gujarat Government are not mentioned. Under these circumstances could it be interpreted that the Governor has to consult only the Chief Justice and the Leader of Opposition and that the Chief Minister has no role to play? For this purpose we shall have to go to the Constitution itself. Article 124 (2) reads, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Under Article 217 these provisions apply mutatis mutandis to the appointment of Judges of a High Court. Can the President, in view of the wording of Article 124, ignore the Prime Minister and the Council of Ministers in the matter of appointment of Judges? Under Article 217 in the matter of appointment of a Judge of a High Court the President is required to consult the Governor of the State also. Can the Governor make a recommendation to the President without the aid and advice of his Council of Ministers?

In order to answer the above question recourse must be had to Articles 74 and 163 of the Constitution. Under Article 74 the President shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. The provisions of Article 163 are similar. Except only where the Constitution requires the Governor to perform his functions at his discretion he, too, is required to perform his functions on the aid and advice of the Council of Ministers. An Act of the Legislature, such as the Gujarat Lokayukta Act, cannot negate these provisions of the Constitution. Despite the fact that the Gujarat Lokayukta Act does not mention the government, the Chief Minister, or the Council of Ministers, the Governor cannot act otherwise than on the advice of the Council of Ministers unless the Constitution itself requires him to act independently.

In what cases can the Governor act at his own discretion? Under Article 75, whereas the Members of the Council of Ministers are appointed by the President on the advice of the Prime Minister, he has discretion in the matter of appointment of the Prime Minister. Article 164 has similar provisions regarding the Governor and the Chief Minister. However, because under Article 75 (3) and 163 (2) the Council of Ministers is collectively responsible to the House of the People and the Legislative Assembly respectively, the President or Governor would obviously invite only that person to be Prime Minister or Chief Minister who enjoys the confidence of the House. The only discretion that the President and Governor enjoy is in how best to determine who enjoys the confidence of the House. The President and the Governor having sworn an oath to preserve, protect and defend the Constitution, would obviously reject any advice from the Council of Ministers which calls upon them to act in an unconstitutional manner. I have not come across any instance of such advice having been given by any Council of Ministers in this country. It has been stated that Mr. Fakhruddin Ali Ahmed, the then President should not have approved the proclamation of Emergency under Article 352 because under Article 352 (3) unless the decision of the Union Cabinet, that is, the Council of Ministers consisting of the Prime Minster and other ministers of cabinet rank, has been communicated to him in writing he cannot issue the Proclamation. However, once the Cabinet gives its advice in writing the President has no discretion in this behalf.

Another set of circumstances under which perhaps the President and the Governor can return a matter to the Council of Ministers is if the Council is in violation of the Rules of Business framed under Articles 77 and 166. Of course the Council of Ministers can advise amendment of these Rules and the President or the Governor has to agree.

By stretching the interpretation of the Constitution a bit, which has been done both in the case of Parliament and the State Legislatures more than once, the President or the Governor need not dissolve the House of the People or the Legislative Assembly under Articles 85 and 172 respectively on the advice of the Prime Minister or Chief Minister who has been defeated in a no confidence motion or has otherwise lost the majority in the House. In Britain, however, the convention is that the monarch must accept the advice of the outgoing Prime Minister who may have lost his majority in the House if he asks for dissolution of the House and holding of elections. However, one has to accept that there is a difference of perception about this issue in Britain and India.

The Constitution itself provides for those matters in which the Governor may exercise discretion under Article 163. Under Article 371 in the matter of the Special Development Boards in Maharashtra and Gujarat the Constitution gives special responsibility to the Governor and here he may reject the advice of his Council of Ministers. Under Article 371 A, the Governor has special responsibility with respect to law and order. Under Article 371 C, the President may give special responsibility to the Governor of Manipur in order to procure the proper functioning of a committee of the Legislative Assembly consisting of Members of the Assembly elected from the hill areas of that State. Under Article 371 F, the Governor of Sikkim has special responsibility for peace and for equitable arrangement for ensuring the social, economical advancement of different sections of people of Sikkim. Under Article 371 H, the Governor of Arunachal Pradesh has special responsibility with respect to law and order in the State. He is required to consult his Council of Ministers, but he can exercise his individual judgment, differing from the advice given to him by the Council of Ministers. In all matters other than those specified by the Constitution, the Governor has no discretion to act otherwise than on the aid and advice of his Council of Ministers. With utmost respect to the Hon’ble Supreme Court I would submit that this is a true representation of the powers of the Governor, including in the case of appointment of the Lokayukta.

There are certain other issues in which we need an authoritative judgment from the Supreme Court sitting in a Constitutional Bench. I refer specifically to the provisions of Articles 111, 200 and 201 of the Constitution. Under Article 111 or 200 when a Bill is presented to the President or the Governor for signature after being passed by the Legislature, the President or Governor is required to give his assent or return the Bill for reconsideration or amendment. In Parliament both the Houses, as also in a bicameral State Legislature and the Legislative Assembly in a unicameral Legislature, will reconsider the Bill and if it is passed by the Houses or House with or without amendment neither the President nor the Governor may withhold assent. Under Article 1, section 7 of the Constitution of the United States of America the President has ten days time in which to either assent to a Bill or return it to the Congress. In case he does not return the Bill it is deemed as assented to and if he does return the Bill and the Congress once again approves it, then the Bill is deemed to have received the presidential assent. The difference between the United States and the Indian position is that in India no limitation of time is prescribed by the Constitution within which the President or the Governor is required to either assent to the Bill or to return it to reconsideration. When Giani Zail Singh was the President of India and Rajiv Gandhi was the Prime Minister, a Bill was sent to him for assent which would have virtually brought in postal censorship. Giani Zail Singh considered this as undemocratic, but he also knew that if he returned the Bill, Rajiv Gandhi had a massive majority in Parliament and would have been able to get the Bill passed a second time. Using the provisions of the Constitution which laid down no time limit in consideration of the Bill he argued that he was examining it, he neither assented nor returned the Bill and he sat on it till the term of the House of the People was over. It was dissolved and the Bill lapsed.

Governors have also played the same game, for example, in Gujarat to frustrate a BJP led government and in the case of Madhya Pradesh to frustrate first a Congress led government and a then BJP led government. The scheme of the Constitution is that the Legislature has competence to legislate. If a piece of legislation is unconstitutional, then the High Court or the Supreme Court has the power to strike it down. The President or the Governor may, in his or her wisdom, delay a Bill by sending it back to the Legislature but neither functionary can abort a Bill through delaying tactics. That flies in the face of the mandate given to the Legislature by the people to legislate on their behalf. I would most respectfully submit to the Hon’ble Supreme Court that at some stage it will have to define the words “as soon as possible after presentation to him of a Bill for assent” given in Articles 111 and 200. Even though the Constitution does not provide for a time limit should not the Supreme Court, in exercise of its powers under Article 141, define what “as soon as possible” means? The President or the Governor who sits unduly on a Bill is acting in violation of his oath to protect the Constitution and, therefore, either by a suitable amendment of the Constitution or an interpretation by the Constitutional Bench of the Supreme Court a time limit must be prescribed for giving of assent or denial of assent and return of the Bill to the Legislature for reconsideration.

Integrity and Ethics in the Civil Service

Dr M N Buch 

(Visiting Fellow, VIF)

In order to understand the topic of this paper perhaps it would be best to have clearly before us the definition of the issues we are addressing. For this purpose resort was had to the new Oxford Dictionary of English. There are four words whose definition I sought and they are ethics, integrity, honest and moral. The dictionary definitions are as under:

1. Ethics – Moral principles that govern a person’s behaviour or the conduct of an activity.
2. Integrity – The quality of being honest and having strong moral principles
3. Honest – Free of deceit and untruthfulness; sincere
4. Moral – Concerned with the principles of right and wrong behaviour

It might be noticed that none of these four words mention legal, lawful, according to rules, etc. All four relate to a person’s own principles, his respect for truth and his own innate judgment of his own conduct which keeps him on the path of right behaviour. He is expected to do this regardless of what the law says, out of his own conviction and free of the pressure of either his peers or his superiors watching him and then pulling him up for wrongful behaviour. Ethics and integrity, therefore, have to come from within and cannot be superimposed. To help a person to behave ethically we have laws, codes of conduct, systems of checks and a standard of what is acceptable to society, but these by themselves cannot create morality, uprightness, honesty or ethical behaviour. That has to come from within the individual.

In discovering ethics where does the theory of the Social Contract, whether as enunciated by Thomas Hobbes or proclaimed by Jean-Jacques Rousseau, stand? Is man by nature ethical or do circumstances make him ethical? Hobbes had a very poor opinion of the state of nature. According to Hobbes unless there was a coercive power to ensure the basic security upon which political, sociable, civilised life depends, there would be, “… no place for Industry…; no Navigation…; no Arts; no Letters; and which is worst of all, continual fear, and danger of violent death; And the life of man, solitary, poor, nasty, brutish, and short”. In other words, without strong government there would be virtually the law of the jungle and life would be worthless.

Rousseau, on the other hand, was a humanist. He recognised that man was no longer living in an absolute state of nature and, therefore, we do need civil society in order to create a social contract. This is how he puts it, “The passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had concerned only himself, find that he is forced to act on different principles and to consult his reason before listening to his inclinations”. (Discourses on the Arts and Sciences). This is followed up by his most famous pronouncement as given in his article, Discourse on Political Economy. The opening lines of the treatise are, “Man is born free and everywhere he is in chains. Those who think themselves the masters of others are indeed greater slaves than they”. Rousseau was the philosopher of the democratic state and Hobbes of the authoritarian state. In both, however, there is an underlying streak of similarity in that both recognise that orderliness in society is vital and the bounds which, by giving freedom of action and thought, also prescribe the limits whereby the exercise of one man’s freedom does not impinge on the freedom of someone else, are of the essence. This, then, is the real social contract and in a democracy this is the contract according to which the State must exist and its servants must function. In other words, together with ethics which guide the conduct of every civil servant there is also the social contract which binds civil society, of which the officials are both the servants and functionaries.

In 1957, that is, just ten years after India became independent I joined the Indian Administrative Service and became both a part of civil society and a functionary whose job was to ensure that society remained civil. If we adopt the reductio ad absurdum method of deducing what is expected of a civil servant we would come to the following conclusions.

1. An unrepentant and unreformed criminal cannot provide us with a crime free society.
2. We must have the Magistracy and the Police to ensure law and order, prevent, detect and prosecute crimes and to create an environment of security in which citizens can go about their lawful business peacefully.
3. If a criminal cannot ensure law and order and freedom from crime and this duty devolves on the Police, then by definition the Police has to be a servant of the law and because most laws are based on sound moral principles, a policeman cannot afford to behave dishonestly, immorally, without integrity and ethics which, therefore, are built into the police and into every individual policeman. Ethics and integrity, therefore, should be as natural to a policeman as is breathing.
4. A democratic state is required to function justly and to ensure to its citizens good government, equal protection of laws and to establish a social order which promotes their welfare. The Preamble to the Constitution which states that the republic will provide social, economic and political justice, the liberty of thought, expression, belief, faith and worship, equality of status and opportunity and promote fraternity mandates that the State and its functionaries will act with integrity and ethics because a dishonest or unethical State or civil servant cannot promote any of the basic principles laid down in the Preamble. Article 14 mandates equality before law and equal protection of laws within the territory of India. This equality is not restricted to Indian citizens only and would be enjoyed by every single person residing within the territory of India. How can an unethical State functionary ensure equality? Article 38 of the Constitution requires the State to secure a social order for the promotion of welfare of the people. Immoral behaviour by public servants will invariably be inimical to the welfare of the people and, therefore, Article 38 makes it mandatory for public servants to behave ethically. I have referred to these three provisions of the Constitution especially because according to me the Constitution demands that there will be ethical behaviour and total integrity on the part of public servants.

The scheme of government in India is that the Constitution provides for separation of the three constituents of the Indian State, the Executive, the Legislature and the Judiciary. These organs do not operate in a vacuum or in watertight compartments and obviously there is interaction at different levels. However, this is not an essay on separation of powers and I shall leave aside that argument here. The organ of the State which interacts on a day-today basis with the citizens is the Executive. There is the President in whom all executive powers vest, but who is required to exercise this power through officers subordinate to him and, in exercising these powers, he is constitutionally required to go by the aid and advice of the Council of Ministers. The Council of Ministers consists of Members of Parliament appointed by the President on the advice of the Prime Minister and constitutionally the Council is collectively responsible to the House of the People. India being a representative democracy, Parliament represents all the people of India and because the Council of Ministers is accountable to the House of the People its members are, through Parliament, accountable to all the citizens of India. In other words, the Ministers, too, are bound to respect the social contract in which civil society appoints them and they, in turn, serve the civil society with integrity. The civil servants, who help the President to exercise executive power on the aid and advice of the Council of Ministers, are also expected to adhere to the same code of ethics and of integrity as would be applicable to a Minister, only more so. The Council takes policy decisions on the basis of the mandate of the electorate, the ideology of the party to which its member belongs and the programme given by the party in its manifesto at the time of the election, subject to such decisions being within the framework of law. There will be political bias in such decision making, but that has to terminate at the level of policy. Implementation is the responsibility of the civil servants and they are totally precluded from allowing any political bias to qualify their judgement when implementing policy. Article 14 of the Constitution specifically prohibits civil servants from denying equality to any citizen and, therefore, in implementation of policy the civil servant is required to be totally fair and without prejudice. He will be guided by the policy, by the law, by the rules and by his much higher accountability to the principles of integrity and ethical behaviour.

I served the Indian Administrative Service for twenty-eight years and I left eight years before my date of superannuation. I left the Service on an issue where I totally disagreed with the Chief Minister because I was convinced that he wanted me to do something which was contrary to law and I, therefore, appreciate the kind of pressure put on civil servants to do things which a politician feels would be beneficial to him, even though it is ethically wrong and legally untenable. After all we are living in an environment in which after 1967 defections were engineered through bribery in order to gain power. This has corrupted our polity almost beyond repair, in which the politician tries to subvert the State in order to get the money to buy and retain power and, for this purpose, to tame the civil servants first into submission and then into acting as the provider of illicit funds. Civil servants who resist this are side-tracked, browbeaten, humiliated and worse and it becomes difficult for them to resist or to follow a higher code of ethics. Many civil servants have succumbed and there are several who have both become willing partners and the instigators of corrupt practices which would benefit both the politician and the civil servant. This is in an unenviable situation for civil servants who are under pressure to do things which are neither honest nor ethical. Prior to 1967 it was easy for us to practice both honesty and ethics because the politicians would not pressurise us to do something which they knew we would not do and had they done so, we ourselves would reject that which was unacceptable. After 1967 the politician has not listened to either to the voice of reason or to the voice of morality. Does that release civil servants from their bounden duty to follow the principles of integrity and ethics?

When I am in doubt I refer to the Constitution, a practice I would commend to all civil servants. Because Articles 53 and 154 vest the executive power of the Union and the States in the President and the Governor respectively because the power is required to be exercised by the officers subordinate to the President or the Governor and because these officers together constitute the Civil Service, the Executive is divided into two equal parts. The first consists of the Council of Ministers who are elected members of the Legislature and on whose aid and advice the President or Governor would be required to take executive decisions. This part of the Executive, the Council of Ministers, would be the elected executive. Because the elected Executive is required to function through civil servants the Civil Service would be the permanent part of the Executive. This part of the Executive does not exist at the mercy of the political executive. Part XIV of the Constitution provides for the Civil Services, including recruitment through the Public Service Commission, guarantees against arbitrariness under Article 311 and the very special provisions under Article 312 for All India Services appointed by the President, under the ultimate rule making control of the Central Government but constituted into State Cadres for serving both the Centre and the State at senior levels. The permanent part of the Executive, therefore, has an independent existence under constitutional guarantee and, therefore, the Civil Service is not permitted to quote the orders of superiors as an excuse for wrongdoing. After Second World War during the Nuremberg Trials the War Crimes Tribunal ruled that there was a higher ethical responsibility which required public servants to disobey orders which were crimes against humanity and, therefore, the orders of superiors could not be offered as justification for war crimes. This principle is actually enshrined in our Constitution because it is the only Constitution in the world which provides this kind of protection to the Civil Service. No other Constitution has the equivalent of Article 311, which provides almost total immunity against arbitrary behaviour of the political executive. The Civil Services in India can never be forgiven for unethical behaviour or for deviation from integrity because the constitutional guarantees presuppose that they will be honest. If they are not they cannot expect constitutional protection.

How has the system actually functioned? By and large where the Congress or the BJP have ruled or where the Left Front has been in power, the Civil Services have been under pressure but not of the type which would break their morale. Where governments have fallen through defection and where regional parties have ruled, the Civil Services have been under immense pressure, partially because politicians are corrupt and partially because they need to corrupt other politicians so that they themselves can retain power. There has also been an attempt to marginalise the Civil Service, not through legal devolution of powers to local government but through a method of working whereby the civil servants are humiliated, muzzled and prevented from doing their duty impartially. Because civil servants themselves are human many have succumbed to pressure, in clear violation of their duty under the Constitution and their accountability to a much higher code of integrity and ethical behaviour. The worst culprits are the All India Services which, despite the escape route available to them of central deputation or the ultimate protection of the Central government, have gone along with politicians who practice a very low kind of politics. How can such officials ever be forgiven? My personal view is that the All India Services have sunk to such a depth that we need drastic action in order to bring them back on the rails. I have expressed the view more than once that we need to publicly hang ten percent of the most corrupt IAS and IPS officers and dismiss another fifty percent of those who do not enjoy a well earned reputation for integrity. This would leave behind a Spartan elite who would together constitute the best Civil Service in the world. Somebody cynically pointed out to me that considering how the system works in India we would probably hang ten percent of the innocent, dismiss another fifty percent who are honest and what would be left would be a group of criminals who would govern this country. The fact remains, however, that laws, rules, the Constitution, peer pressure, fear of punishment apart, the Civil Service has to remind itself whether integrity and ethics should not govern its behaviour. Being ethical sometimes brings unpleasant moments, but the sheer sense of satisfaction and pride one gets on gaining a public reputation for integrity is compensation enough.

Perhaps I have excessively emphasised the negative aspects of integrity and ethics. There is a very positive side to it also. An officer’s reputation is made in the first two years of service if he shows himself to be keen to learn the nuts and bolts of his job, if he insists from the beginning on living within his means and not taking the petty favours that almost automatically come to government officers, if he is open and available to people, he is at all times polite but firm and if his attitude is one of helping people rather than obstructing them, he will be respected by the people. If he is even handed he will be looked upon as just. If he refuses to be swayed from the path of correctness politicians will also begin to respect him. They may not like him but they would also know that they cannot pressurise him. Every politician is not bad and since they all have to depend on grass-root support most of them do speak for their constituency and have a right to be heard positively. Let me give an example. In Ujjain where I was Collector forty-seven years ago, we had the only CPI (M) MLA in Madhya Pradesh, Bhairav Bharti. He was in opposition, he could be awkward and difficult, but he was dead honest and he knew his constituency like back of his hand. Despite being a gadfly for the administration I liked him and we had a cordial relationship. One day he came to me to report that there had been an incident in his village, Bhatisuda, in which nine people had been killed and sixteen were arrested. He wanted me to do something to restore normalcy. The next day I went to Bhatisuda with Bhairav Bharti and could sense the tense environment. I went to the site of the incident, which was located in some fields almost on the village boundary. It seems that the cattle of one party would go along the field bunds of the other party’s land in order to reach a pasture on the village boundary. The field owners objected to this because they felt that the cattle caused damage to the crops. The wajib-ul-arz, or the record of customary rights of the villagers, permitted people to use field bunds to move around. Therefore, when the field owners stopped the movement of cattle the cattle owners became annoyed, a fracas developed and nine of the field owners were killed. Sixteen of the cattle owners were in custody on a murder charge. I asked the villagers whether anyone could object to cattle coming up to where we stood and they said that because this is a village road no one could object. When I asked whether there would be any objection if the village road went up to the pasture at the village boundary, they said that this was perfectly in order because anyone could use a public road. I then ordered the Patwari to measure off a twenty feet width of land up to the village boundary and directed that the land stood acquired by the State. I then told the cattle owners to pay as compensation an amount, fixed by me then and there to the field owners whose land was being converted into a public road. This was done, the land records were amended and the cause of the quarrel eliminated. Suddenly the environment changed and Bhairav Bharti told me that I could not leave the village till I feasted with everyone and that so long as I headed the district he would never oppose me. He kept his word. I also persuaded the police to reduce the charge from murder to culpable homicide not amounting to murder, which meant that the arrested person could be bailed out by the Court of Session. Bhairav Bharti became a friend for life.

Another example is of the then Chief Minister Shyama Charan Shukla, wanting to extend nistar facilities (timber, bamboo, etc. given to villagers virtually free of cost as a matter of right) to the villagers in seventeen non forest districts where they were not so entitled. Because this would benefit the farmers I readily agreed in my capacity as Secretary of the Environment Group of Departments, which included Forests. He asked me how soon we could start supplying forest produce to these districts and I told him that our first lorries could move the next morning. It was my duty to implement this pro people policy of the Chief Minister and our first vehicles left our forest depots with material for these seventeen districts the next morning. I then sent a note to the Chief Minister through the Chief Secretary stating what action I had taken and requesting an appropriate change in the Nistar policy which would extend Nistar facilities to non forest districts, asking for a contingency fund advance of rupees five cores to cover initial costs and submitting that I could not immediately give a budget estimate for supplementary grants because that had to be worked out and that all this was being done without consulting the Finance Department. The Chief Secretary recommended my suspension for violating every norm of financial and official propriety and procedure. The file returned from the Chief Minister with the following remarks; “There is no question of suspending Buch for the initiative shown by him. In fact I want this file to be circulated to all Secretaries as a model of how a Secretary to Government should implement the welfare oriented orders of the Chief Minister. The Nistar policy is hereby amended as required by Buch, the contingency fund advance of rupees five crores is sanctioned, the Forest Department may submit a proposal for a supplementary grant in due course and all this is done in anticipation of orders in council”. I mention this case as a pointer to how a civil servant should work to promote welfare. Had Shyama Charan Shukla asked me to give a businessman or industrialist free timber I would not have obeyed him even if he had hung himself upside down. A civil servant, whilst adhering to the highest code of integrity and ethics, must still rapidly implement a welfare policy and not act as an obstructionist. Obstructionism is itself a deviation from both integrity and ethics because it prevents government from performing its primary task of delivering welfare to the people. Ultimately integrity, ethics, decisiveness all come from motivation and if an officer is correctly motivated to serve the people, then he is bound to be honest and ethical.

Let me end with a story. I spent the whole of 1980 without a post in Delhi after I had been thrown out of DDA. I very often went to the India International Centre, a haven for people who had temporarily fallen foul of government and desperately needed a place where one could think, discuss and write. I had illustrious companions such as Ved Marwah, Jagdish Jetli and Hari Pillai for company. One day I had walked to the Centre from my house in Teen Murti Lane and when I came out of the library to walk back home I found it was raining. At the gate was a Sikh auto rickshaw driver who agreed to take me home. He did not ask for and I did not tell him my destination but he still took me home to 18, Teen Murti Lane. He then refused to accept any fare from me. On being asked why he said, “You do not remember me but I had come to see you in DDA. I had registered for a house which I should have been allotted years ago but despite my wearing out several pairs of shoes I got no remedy. One day I came to Vikas Minar and found no guards, no security personnel. I entered the office building and asked someone where I could meet the Head. I was told to go to the fifth floor and your name plate was at the door. I asked the orderly how I could meet you and to my surprise he told me to open the door and walk in. You were doing some work and asked me to sit down. After you finished the file you asked me my problem. I, a mere auto rickshaw driver, was not only heard but the Housing Commissioner was sent for and two hours later I walked out with my allotment order and my occupation order. I can never forget my debt of gratitude to you and will never take any fare from you”. What had I actually done for this man except to hear him and give him what was due to him? His accolade was my Bharat Ratna. I narrate this story because if civil servants follow the path of integrity and ethics each one of them would earn a similar Bharat Ratna.

How Should The Executive Government Function?

Dr. M.N. Buch

Visiting Fellow, VIF

The Constitution of India in Part V for the Union and Part VI for the States divides the functions of the State between separate, equal and interconnected wings, the Executive, the Legislature and the Judiciary. 

Article 53 of the Constitution and Article 154 of the Constitution vest the executive power of the Union and the States in the President and Governors respectively. As per Articles 76 and 163 the executive power is to be exercised on the aid and advice of the Council of Ministers. In effect, therefore, the Council of Ministers exercises executive power. Under Articles 73 and 162 the executive power of the Union extends to all matters with which Parliament has power to make laws and, for the States, to the extent of power of the Legislature to make laws. The executive power, therefore, is to be exercised at the judicious discretion of the President or Governor and it is only the Legislature which by law can circumscribe the executive power. Otherwise neither the Judiciary nor the Comptroller and Auditor General, nor the Legislature acting in a watchdog capacity can limit this executive power. To put it another way, that which the law does not either limit or prohibit is permissible in the exercise of executive power. As will be explained later, this is an extremely important point because many of the problems of governance in India have arisen out of an incomplete or wrong understanding of what executive power means and the manner in which such power can be exercised.

The conduct of business of the Government of India is governed by rules framed under Article 77 and in the case of the States by rules framed under Article 166. These rules divide the business of government between different ministries or departments and assign to each department its area of jurisdiction and competence. The rules also prescribe how a minister will deal with a case and how the Secretary and his officers will advise the minister or implement laws, policy or lawful orders of the minister. The rules also categorically state and it is the personal responsibility of the Secretary concerned to ensure compliance with the Business Rules. Where an individual department cannot take a decision or where more than one department is involved in decision making, the case may be referred to the Prime Minister or Chief Minister in coordination or it may be submitted to the Council of Ministers for orders. Within its own area of competence and subject to laws, rules or normal practices of the department, the department is competent to take an executive decision. If the decision is legal and not contrary to rules, it cannot normally be called into question, unless there is positive evidence of wrong doing. The fact that a particular decision may opt for a more costly option does not by itself make the decision bad in law or even executively ill-advised. 

Let us take the case of spectrum allocation. At the time when mobile telephony began to make its presence felt in India, this country had about the worst telecommunication system in the world. It is only the introduction of digital telecommunications which transformed the telephony picture. It is in this context that government decided to throw open the doors of the telecommunication industry in order to attract more participants. Present revenue was not the concern but rather the swift development of a sector which provided vital infrastructure for communications. The policy followed was that spectrum would be allotted on a first come first served basis. Because in implementation there were severe flaws, including major complaints about corruption, the case came under audit scrutiny and the Comptroller and Auditor General went public in stating that by not auctioning spectrum government incurred a loss of Rs. 1,72,000 crores. If auction had been done the exchequer should have benefitted to this extent. The word ‘if’’ is very dangerous here because if wishes were horses pigs would fly. Therefore, speculation on what might have been is quite unacceptable. The problem with the 2G spectrum case was that in implementation the then minister committed a number of unacceptable mistakes, including going ahead with allocation contrary to the stand taken by the Ministry of Finance. In fact the Secretary of the Ministry should have refused to issue any orders in this case until the Council of Ministers took a decision, but the Minister was in a hurry. When the bubble burst government panicked and heads were allowed to roll. This is a case where if the executive power had been correctly exercised there would be no scam, largely because it is still not clear whether there actually was a scam or not. What should the government have done? There should have been a clear-cut decision on policy about allocation of spectrum. This could be by auction, it could be by allowing every serious contender to participate in the development of telephony, it could even be a decision to allocate a spectrum on a nominal fee, but with annual fee being periodically adjusted according to expansion of the network. Eventually this would come to a huge amount and while giving India even greater mobile telephony facilities, it would have served the consumer by keeping call rates low but, because of the size of the market, giving government enormous revenues. Nothing of the sort happened and instead we had arbitrariness of the minister on the one side, dithering of government on the other side and government generally behaving like a naughty school boy caught with his hand in the jam jar. The quite uncalled for statement of CAG that a loss of Rs. 1,72,000 crores had been suffered only added fuel to the fire, despite the fact that the calculated loss is based on an argument somewhat on the following lines, “ If A had been done instead of B, then the revenue would have been XXX and because it was not done and because the revenue did not reach this figure, therefore, XXX is the loss”. This whole argument falls to the ground because it is based on pure speculation. Why has government been hesitant in stating this in clear terms? Why has government not taken the stand that it took a certain executive decision about spectrum allocation and that it stands by this decision and strongly refutes any suggestion or wrongdoing? 

There is another area which is of some concern and that is equipment of the armed forces adequately to fulfill their task of defending India against all comers. Defence deals right from the time of Krishna Menon as High Commissioner in London have been subjected to complaints, counter complaints and hesitation on the part of government to take a final decision. It was not always so because our defence agreements with the Soviet Union, for guns, armoured vehicles, fighter and transport aircraft, fighting ships and every conceivable piece of military equipment seem to have been completed without undue delay. Again, all these agreements were government to government, which made decision making relatively easy, but they were not necessarily without some consideration passing at individual levels. It is in our weapons deals with western bloc countries that we seem to have had trouble because here it is the private contractors or suppliers who provide the equipment. When the Bofors gun was purchased there was loud and persistent complaints about corruption in the deal, the echoes of which still reverberate. The gun is first rate and it has been the mainstay of our artillery arm. However, because the then Prime Minister stood accused of wrongdoing, every government now hesitates to take a decision about weapons purchase. Scorpene and HDW submarine deals with France and Germany seem to be on a roller-coaster ride and the purchase and production have been inordinately delayed. The purchase of T-90 tanks seems to be hanging fire. The Army has not acquired any artillery gun since the purchase of Bofors 155mm guns. The specialised ammunition needed by our Armoured Corps is not being acquired because the firm supplying is has been blacklisted. Even Rafale fighter purchase seems to be slowing down because someone has complained. The net result is that the armed forces just do not have the equipment they require to fight a war successfully on at least two fronts, Pakistan and China. What use is our claiming to prevent corruption if as a result thereof India is left defenceless? 

This issue is stressed because equipping the armed forces is an executive decision and lies entirely within the realm of the executive government. Here the process of decision making would involve the armed forces in that they would project their requirements and convince government of the need for a particular weapon system. This calls for a constant dialogue between the Service concerned and the Ministry of Defence, with a clear understanding on both sides that the matter has to be finalised within a given finite period. Once government is convinced of the requirement of that particular Service, the sanction for purchase must be given and the budget placed at the disposal of the Service Chief concerned. The entire process of testing of equipment before starting the process of purchase, floating tenders, evaluating tenders both technically and financially, arriving at the best option, making the final selection and placing an order should all be done on the advice of a committee set up by the Service Chief and including a representative of finance and one or more expert scientists who could give technical and scientific advice. The role of the executive government would be to stand by the decision taken and to defend it at all levels, including in Parliament. Unless there is proven misconduct, with the proof being of the highest order, government should not hesitate in approving the weapon acquisition concerned. That is how a government must behave. Provided that the process of acquisition is according to set procedures, rules, principles of prudence and is transparent one need not be afraid of any ex post facto criticism.

There are many areas in which the executive government is subjected to directions by the courts on how an executive decision should be taken or how and in what areas legislation must be enacted. One such area is police reforms. It is legitimate for the Supreme Court to direct that the police, which is the investigating arm of government in the matter of criminal law, should be insulated from every kind of pressure or influence when investigating a case so that the cause of justice is furthered by impartial investigation. For this purpose certainly the Supreme Court can direct government to take necessary executive measures or to provide legal safeguards whereby the police performs its functions without fear or favour. What the Supreme Court cannot direct is that the law governing the police must be worded in a particular way, the police organisation should be of a particular kind and that the personnel policy relating to the police must be as suggested by the Supreme Court. How to insulate the police from undue pressure, what personnel policy to follow to protect individual policemen who do their duty, without reducing the superintendence, direction and control role of the executive government are all issues on which it is the executive which will take its own decision and prepare the draft legislation for the consideration of the Legislature. It is the Legislature which will decide how the Bill in its final form as approved by the Legislature is enacted into law. In other words, micro-management of the police is beyond the jurisdiction of a court and fully within the domain of the executive. This does not mean that one wants a police force which is servile but one does want government to retain the authority to restrain the police if it exceeds its legal brief or begins to operate in a manner which is not in the public interest. The executive decision regarding this and the draft of the legislation to be placed before the Legislature fall within the executive domain.

One very sensitive area is corruption. Can the executive, which itself is corrupt, be trusted to ensure a corruption free society? Here the campaign against corruption is to be divided into three parts. The first relates to legislation and it is the job of the executive to suggest what laws are needed and for the Legislature to enact laws which would facilitate the fight against corruption. The second part relates to the role of the executive, which has to implement anti-corruption laws. The executive must set up an efficient agency which investigates cases of corruption without fear or favour and then takes suitable steps to prosecute offenders. Like the police this agency must be insulated from pressure, partly through legislative cover and partly through executive decisions to give autonomy to the agency. This is a very important executive function. The third part would be prosecution and trial in which the Judiciary will have to pronounce on guilt or innocence and to determine the quantum of punishment in cases where conviction takes place. It is for the executive to facilitate the Judiciary in arriving at just and fair decisions, which also means that the executive must not come in the way of trials, either by refusing or delaying sanction of prosecution or by asking the investigating agency to go slow in the presentation of its case before a court. However, there is a further role for the executive in curbing corruption, which is a review of all rules, regulations and procedures which bring about a citizen-government interface, with a view to reduce this interface to a minimum, simplifying procedures and drastically reducing or eliminating delays in decision making. This has to be linked with a firm decision to bring about one administrative reform. There should be clear-cut assignment of functions and duties to government officials at all levels, with interlocking accountability whereby the superior of the government official concerned is held fully accountable for the action or inaction of his subordinate. This would dramatically improve supervision of subordinates because the superior knows that a default of the subordinate will be visited on him also. Simplification of rules and procedures, avoidance of delay and inter-locking accountability would bring about a major improvement in the functioning of government and make the executive government function more efficiently.

At the highest level of the Prime Minister or a Chief Minister the executive government has to make its policy on any issue completely clear, specific and unambiguous. If it is a policy relating to land allotment, let it be made public. If it is a policy relating to purchases, let the policy be made public. If it is a policy relating to government’s approach to specific problems let the policy be made public. However, once a decision is taken the executive government must stand by it and not get swayed or deviated because someone does not like the policy or has complaints against its implementation.

The present position is that the executive government has abdicated its functions through sheer indecision. Thus if a person raises a claim against government the officer empowered to take a decision just pushes the file back and forth, forcing the claimant into expensive and long drawn out litigation. This does not necessarily stop corruption, but it does provide a shield to an officer because in our system indecision is not penalised. At the level of policy government avoids all hard decisions under the excuse of the compulsions of coalition. In areas of national security, economic development, education policy, even fighting corruption, if there is no consensus there is no decision, but only a dangerous drift. This is a negation of government. Into this vacuum other players step in -- Naxalites, terrorists, agitators to name just a few. Or the judiciary takes on an executive role. This is why through public interest litigation our High Courts and Supreme Court increasingly venture into areas where no court in other democracies would dare to tread. Or else the Legislature refuses to allow even such vital Bills as 13 Bills of the Human Resources Development Ministry to be introduced, much less enacted. Such a grid lock can only be broken by an assertive executive that functions as an executive should, firmly, decisively and with confidence. India needs such an executive – fast.