Systemic Failure or Organ Failure?

Dr M N Buch 

(Visiting Fellow, VIF)

The Chambers Twenty-first Dictionary, which is quite an authoritative lexicon, describes ‘system’ in the following words, “A set of inter-connected or inter-related parts forming a complex whole”. The word ‘systemic’ is defined as “referring or relating to a whole organism. ‘Organ’ is defined as, “A part of a body or plant which has a special function, e.g. a kidney, a leaf”. Therefore, when an organ fails it is an individual part which becomes inoperative and, perhaps, with proper treatment the organ, or part, can either be repaired or made functional, or it can be replaced. A systemic failure, however, would be much more serious because in such a situation the entire system, or the complex whole consisting of individual organs, begins to give way and this can lead to what can only be called termination which is irreversible. Here all the organs either seriatim or collectively fail. The situation can still be retrieved by repair or replacement. The question which faces India today is whether our body politic is facing organ failures or is it that we are a looking at a system failure?

The total system under which India operates is what is provided in the Constitution. The body politic consists of three major subsystems, the Executive, the Legislature and the Judiciary which together constitute the whole system called the Indian State. Within the overall system and the sub-systems there are a number of organs which are required to perform specific functions. Schools and colleges are required to impart education, medical institutions are meant to look after the health of citizens the Income Tax Department is supposed to collect taxes levied by the Legislature, the Agriculture Department is meant to promote agriculture and the Police are required to create an overall environment of security and for that purpose to maintain law and order, prevent, detect and prosecute crime, guard the country against externally sponsored acts of terrorism and generally reassure people that they can go about their normal vocations in peace. This functional distribution or responsibility applies to all the organs of the State and to all levels of public servants, elected or appointed. Sometimes a particular organisation or department fails to live up to our expectations. Some civil servants do not carry out their duties faithfully. Quite often even at subsystem level there is failure, such as the virtual lock out of Parliament that we have witnessed for the last few months. Sometimes the citizens themselves are so annoyed with a particular organ of the State that they react strongly and, therefore, there is a hiatus between public servants and people at large. These are aberrations which will crop up from time to time in any system, but the system itself has to be resilient enough to apply self-correcting measures so that the organ which is faltering is brought back on track. Organ failure is correctable but when the self correcting mechanism fails it can have a cascading effect on the functioning of organs and an unchecked failure of one organ can cause other organs to come under stress and fall. This can lead to systemic failure, which has to be avoided at any cost.

How sound are our systems? Because the republic is founded on democracy and the fact that every five years people do exercise their franchise in an environment which is basically free of fear means that democracy has taken very deep roots in India. Democracy, therefore, becomes the very base, the very foundation on which is the system rests and this foundation cannot be destroyed. This does not mean that the superstructure, which corresponds with organs of a system, cannot be damaged, but systemic failure cannot take place unless the foundations themselves crack. The foundations of Indian democracy are stable and safe and this can be categorically proved by the failure of the State of Emergency which Indira Gandhi declared in 1975 and had to hastily withdraw in 1977. This is one side of the story, but the other side is that if organs fail and corrective measures are not taken in time, cumulatively this can lead to a system failure. There are many critics, many pessimists, who say that this is beginning to take place increasingly and that we are in danger of systemic failure. People with extremist views go to the extent of saying that the systems themselves are rotten and we should scrap them and create new systems. In Russia, the Tsarist Government and the Tsarist system had become rotten and, therefore, the Russian Revolution took place and Imperial Russia became the Communist ruled Soviet Union. Every organ of the old regime was destroyed.

The problem with revolutions is that they quite often go against the established nature of things and, in turn, they themselves fail. Two glaring examples of this are Russia today and the modern Peoples Republic of China. Within seventy years of establishment the Soviet Union broke up and disappeared, to be replaced by the Federated Russian Republic which has moved away from one party rule of the Communist Party of the Soviet Union to something which is attempting to resemble western multi party democracy. The Eastern Republics have broken away from the Soviet Union and its successor State, Russia, as have Ukraine, Belarus, Latvia, Estonia, the Caucasian Republics of Georgia and Armenia. The system failed and the country split. The second example is of China, where Mao’s revolution transformed a rotten Kuo Min Tang governed China to a Peoples Republic, which consolidated the country but also brought it under harsh one party rule. Today, however, the picture has changed and is continuing to change. Under Deng Tsiao Ping and his successors China has moved away from an extreme Left Wing form of communism and instead wholeheartedly embraced the capitalist economic system. Politically China has remained under one party rule and the tension is apparent between an economic system which is liberal and a political system which is still rooted in the shibboleths of Marx, Lenin and Mao. Yet, this country has accepted Hong Kong and Macau, former British and Portuguese colonies, as part of China but following their old political systems. Here revolution has turned to evolution, which has kept the country intact and will probably drive it closer to liberal ideas of political organisation, though not necessarily the Westminster or the American model of democracy. This country is to be watched very carefully, not so much because it is now an economic powerhouse but because political changes are taking place which may have very far reaching effects globally.

It is in the context of what the holders of extreme views on how the Indian State functions have to say about scrapping the system that I have brought up the position prevailing in Russia and China. The Indian system of change is evolutionary rather than revolutionary and, therefore, the change tends to be seamless, painless and very long lasting. For those with short memories I would like to draw their attention to what Jawaharlal Nehru and S.K.Dey achieved through the Community Development Programme. Colonial India with its highly regulatory administration was launched on the path of development, especially rural development, by co-opting the people of our villages into an effort to galvanise rural society and unleash people oriented, people driven rural development. Without anyone realizing it, India evolved the system of development blocks, each headed by an officer specifically dedicated to the development agenda. The regulatory mechanism of the tehsil and district remained, but a new unit of administration, the block which was coterminous with tehsils in States which had small tehsils and with more than one block per tehsil where the tehsil was large and could be segmented into more than one block. Extension officers in various disciplines were posted in each block. The BDO was equivalent in rank to the Tehsildar, but because the development administration structure was separated from revenue administration, which could be called coercive to an extent, we had a new cadre of officials who were accountable to the people at block level and whose only agenda was improvement of the rural economy. Setting up a parallel development administration without reducing the importance of the regulatory administration was a remarkable achievement and India can take great pride in this. It is on this foundation that the subsequent panchayat Raj system has been created. This evolutionary form of passing real power to the people through the Panchayats is the an achievement of which India can be justifiably proud. Had we abolished the tehsil and had created only a development administration we would probably have had the chaos that now prevails in Pakistan where half baked reforms which virtually destroyed the district administration without a parallel Panchayat system to take over. This step disconnected the police from accountability to the Magistracy and converted the Deputy Commissioner of a district to a District Coordinating Officer with virtually no coordinating powers, has led to administrative chaos. Our method is better.

The recent debate has originated from the unfortunate rape of a young woman in a moving bus in Delhi and her subsequent death, which has led to an outburst of horror and rage against the manner in which the Indian State is functioning. People are absolutely fed up with crime, especially against women and the rape of the young lady has led to widespread public revulsion and demand for action. People want modified lynch law to apply, they are attacking the police, the judiciary and the legislature for failure to enact tough laws and to enforce them and they want sweeping changes in the organs of the State which would amount to systemic changes. Any attempt to tell people that whereas the anger is justified it is the law which must take its own course, not only because people demand it but because the law is on the statute book and it is the duty of the Executive to enforce the law. The anger of the people is understandable, but what is not understandable is the manner in which government has handled the whole matter. What the people needed was reassurance from the highest officials of the State, including the President and Prime Minister, that in the instant case there would be swift justice, in general there would be a tightening of security and law enforcement in such a way that law breakers begin to have fear of the law and that the general security environment would be improved so that everyone in India, especially women, has the right to protection of laws. This demand is absolutely justified and had government taken steps immediately which could convince the people that government is serious, the things which happened in Delhi when the protests started would not have taken place. If the President, the Prime Minister or the Home Minister, as also the Lieutenant Governor of Delhi had not sheltered behind police barricades and had come to Vijay Chowk to talk to the protesters, not only the would the people be reassured but the agitation itself would have ended. None of these functionaries thought it fit to meet the people, not within the four walls of their own office but in the open where people could congregate around them. A little courage shown by the leaders would have defused the situation immediately, but then we are ruled by insensitive people who are also cowards. This is a prime example of the executive organ of the State not performing its duty and to some extent this amounts to an organ failure. However, it is remediable if for the future the lesson is learnt and the administration goes out of its way to meet people, hear them and then provides suitable remedy and takes suitable corrective steps.

There are a few signals about organ failure or at least organ stress on which I would like to comment. The first goes beyond an organ and forms a sub-system which is a vital constituent of the Indian State. I refer here to the Legislature. Whether it be Parliament or a State Legislature, the legislative organ of the State is really the most important constituent of the democratic system because the House is elected by all the people and, collectively and individually, it and its members represent the people of India. The representatives of the people have at all time to be accountable to the people and, therefore, behave in a responsible manner. The people’s mandate to the Legislature is to deliberate and legislate, that is, give us a system of laws which makes India a society based on law rather than arbitrariness or whimsicality of the ruler. It is the custodian of the public exchequer in that it votes grants and the budget in its totality, which authorises the Executive to draw funds from the Consolidated Fund of India and make accruals to it through revenue and capital receipts. The Executive can neither impose a tax nor an impost, nor can it spend even a single paisa without the approval of the Legislature. In turn, the Legislature can call the Executive to account on how the money has been spent and in this it is assisted by the Comptroller and Auditor General of India. The Executive has to account for every expenditure and, therefore, the parliamentary convention is that if government if defeated on a Money Bill and, in particular the Appropriation Bill, it must resign.

The Legislature also calls the Executive to account in its executive functioning through questions, call attention motions, adjournment motions, motions of no confidence, debate, discussions and resolutions. This can only be done if the Legislature meets for extended periods of time, each day’s session lasts the whole day and discussions and debate take place in an environment of peace and normal give and take. If the Legislature meets for just 50 to 60 working days in an year, as is the case with most State Legislatures, or proceedings are held up for days and months because the opposition and the ruling party do not see eye to eye on issues and nonissues, then the legislative subsystem comes under more stress. This can affect the working of the Executive and then there is a real danger of a systemic failure.

There are remedial measures which can be adopted. India does need more than one party and, as I have written in the past in extenso, ideally we should have a centrist party, a left of centre party and a right of centre party in which the centrist party becomes a pivot, but also a role model which prevents an excessive swing either to the Left or to the Right. Splinter groups and purely regional outfits should either have no presence in Parliament or a very subdued presence. If we adopt one single political reform, that is, no independent can stand for Parliamentary election unless he has won at least one local government election and one assembly election, with a condition applying to regional parties or splinter groups that unless they, as a party, hold at least five seats each in the Legislature of three States, they cannot contest an election to Parliament. The smaller parties would then either have to merge into larger parties, or they would have to expand beyond the narrow confines of their State boundaries, or they would have to confine themselves to State Legislatures only. They would then not be able to exert pressure in Parliament which would be far more in proportion to their numerical strength. If the larger parties are no longer at the mercy of these small groups one can definitely expect more responsible behaviour by them, both in government and in opposition.

Moving from a whole subsystem to organs of government within subsystems, I would like to comment on three of them. The first is government. As a part of the Executive organ of the State the government is required to function within the mandate given to it by the people, that is, the approval given by the people during elections and the agenda and programmes of the party which is voted to power. The party manifesto, the party ideology and the party agenda cannot and must not be altered case by case and government must adhere to the policy guidelines provided to them by the manifesto and agenda of the ruling party. This will guide future legislation and it will certainly guide policy formulation on specific issues. Within these parameters, however, those instrumentalities of the State which are responsible for implementation of policy will take the orders from the law, the people’s mandate and the decisions of the Council of Ministers. The problem in India is that government itself vacillates and dithers, with the result that its officers do not have clear-cut orders or a clear-cut policy which they are supposed to implement. This is an organ failure, but if it enlarges itself to encompass the whole range of executive action, then organ failure here can lead to failure of the subsystem and this must be guarded against. The Constitution in Part XIV already gives the Civil Services protection against arbitrary action, the Preamble, Articles 14, 19, 21 and 38 of the Constitution lay down the fundamental duty of government to promote a welfare state and the Rules of Business framed under the Constitution categorically provided for the manner in which public servants will function, impartially and without fear or favour. If we can go back to a system in which every functionary is not only allowed but actively encouraged to do his duty according to the mandate given to him, we would be able to stop the downward slide of the efficiency and efficacy of our public servants. This is well within our means and if there is to be public protest, it should not be confined to an individual case of rape but must take the form of insisting that government functions effectively.

The second organ I would like to pick up is the judiciary, which is one of the constituent organs of the State and forms a complete subsystem. People talk of judicial reforms. Even the Supreme Court keeps emphasising this, but no one has really articulated what they mean by judicial reforms. Any reform which aims at reducing or in any way curbing the independence of the judiciary enshrined in Chapter 5, Part V and Chapter 5 and 6, Chapter VI of the Constitution has to be firmly rejected. If the judiciary, from the court of first instance upto the Supreme Court, becomes in any way amenable to pressure by the Executive or the Legislature, it can neither function independently nor can it be a guardian of the Constitution and the rights of the people against Executive or Legislative highhandedness. Having said this one has also to recognise that there is a great deal of inefficiency and even corruption in the judiciary today and that this has to be cleansed with a heavy hand. The cleansing process, however, must be a part of the judicial system, with no say of the Executive or the Legislature. The judicial reforms should take the following form.

1. An objective assessment of the strength of judges and magistrates from the court of first instance upto the Supreme Court which should be approved to deal with the huge number of cases now pending or likely to be instituted in future.
2. A process of selection of judges which safeguards the independence of the judiciary, but is transparent, open to examination and time bound in the matter of selection and appointment.
3. A clear-cut understanding by the judiciary at all levels that the provisions of section 309, Cr.P.C, which call for speedy disposal on a day-to-day basis will be applicable to every court in India and every judge and magistrate will be held accountable for delays. In this the High Courts and the Supreme Court must interact with the Bar Council of the State and Bar Council of India to ensure that these Councils lean hard on their members to help in speedy disposal of cases rather than act as obstructions which indefinitely delay trials.
4. The High Courts and Supreme Courts must exercise self-restraint in the admission of appeals and petitions so that trivia is thrown out at motion hearing. Today many petitions are entertained, especially Public Interest Litigation, where the issue is high profile that the judge can garner free publicity. This hits at the roots of the anonymity of judges. Today a normal petition or appeal before a High Court or the Supreme Court remains unheard for years at a time, but Public Interest Litigation gets priority. The Supreme Court must take a good hard look at what really constitutes public interest and must issue suitable directions to the High Courts so that normal cases received due attention. Of course, in order to achieve speedy trial there has to be the cooperation of the prosecuting agency and of the police in ensuring that process is served and presence of witnesses ensured.

The third instrumentality I would like to speak about is the police. At one level it is the coercive arm of the State because it is utilised for putting down public violence and maintenance of law and order. This is a legitimate role, provided that the police is not used selectively. We need to strengthen the Executive Magistracy and the Police in tandem so that, faced with a particular law and situation, the Police and the Executive Magistracy will react in an uniform and predictable manner. Minimum necessary force will be used at the first instance of a law and order situation developing, with the emphasis on preventive action, followed by physical force when that becomes necessary. Neither government nor any other functionary should be allowed to interfere in this part of the duty of the Police, that is, immediate intervention to prevent a law and order situation spiralling out of hand. If such a philosophy has been built into the Gujarat Police and Maharashtra Police the post Ayodhya riots in Maharashtra would have been brought under control very quickly, as would the post Godhra riots in Gujarat. The coercive arm of the State, in exercising force, must do so in the interest of the person at large, which means that necessary force will be used to curb lawlessness at the earliest juncture, with no one having the power to stop the police from doing its duty.

Another area in which the Police operates is in the prevention of crime, its detection, investigation and prosecution without delay and in maintaining surveillance over criminals, which would prevent them from indulging in criminal activities. Under Chapter XI of the Code of Criminal Procedure the Police is not only authorised but is required to take preventive action so that cognisable offences may be nipped in the bud. Under Chapter XII of Cr.P.C the Police is required to investigate every cognisable case and to carry the investigation forward upto the stage of filing a challan before a competent court. Under law the power of the investigating officer to investigate a cognisable offence is unlimited. His superior in the police hierarchy can guide him or even take over the investigation himself, but he can neither order him to drop an accused against whom a prima facie case is made out nor order him to falsely implicate someone against whom no case is made out. However, as we have seen in innumerable cases investigated by CBI, interference at political levels in the investigation of offences is quite frequent and this is one reason why CBI has such a dismal record of conviction If the Police is unable to investigate offences or is unwilling to do so, it is inevitable that lynch law will prevail, as happened at the time of the infamous Bhagalpur blinding case. If we are to be a society of laws then lynch law has no place in India. This means that for our own sake we have to make the Police an effective instrument of crime control and for this purpose we must give the police freedom of action. I do not agree with a great deal of what Prakash Singh says in the matter of details of police autonomy, but I am in total agreement with him that the operational freedom of the Police must be restored, strengthened and enhanced. Whatever legal changes are necessary in this behalf should be brought on the statute book with great speed.

There is no doubt that the superstructure of the State is under considerable stress. Different organs are distressed and weakened and there are signals about current or potential organ failures. As yet there is no danger of systemic failure, but it is about time that we took note of what is happening to the organs of the State and to apply remedial measures now.

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.

Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

A Relook at the Three Pillars of the State: Wisdom by Hindsight

Dr. M.N. Buch

Visiting Fellow, VIF

Of the three pillars of the State, the Executive, the Legislature and the Judiciary the task of the Executive is perhaps the most arduous. The Legislature is answerable only to itself and to the electorate. The Legislature can make and break a government and when this is done by due process it is legitimate. When, however, this is done through dubious means which have come to prevail since 1967, when for the first time legislators were purchased and thus induced to defect, resulting in the legitimately elected governments falling and power passing to those who had purchased it by arranging defections, it is totally reprehensible. The entire history of corruption as it affects us today dates back to that fateful period in 1967 when in States such as Madhya Pradesh, Bihar, Haryana and Uttar Pradesh governments were bought and sold. The legislators suddenly found that they command a price and this could only be paid through the wholesale corruption which became possible only by subverting the State and its institutions. The process brought the legitimacy of government itself into question and it certainly brought the Legislature, both at the Centre and the States, under a cloud which is refusing to lift.

The judiciary is in the happy state of enjoying total autonomy in which whereas there is a hierarchical judicial accountability, there is very little internal administrative accountability up to the level of District Judge and virtually no internal or external administrative accountability so far as the High Courts and the Supreme Court are concerned. Because the process of impeachment of a judge ultimately rests in Parliament, as was proven in the Justice Ramaswami case even a judge found guilty of various misdemeanours by a properly constituted tribunal could not be removed because the Congress Party played foul and the requisite majority for passing of the impeachment motion could not be mustered. Theoretically even if a judge is convicted of a heinous offence and sentenced to a long term of imprisonment he will continue in office if the necessary majority cannot be ensured in Parliament to have an impeachment motion carried. Therefore, the conscience of the judges apart, there is no one on earth to whom a judge of a High Court or the Supreme Court is accountable.

This brings us to the Executive. At the political level the Executive, that is, the Council of Ministers, is collectively responsible to the House of the People under Article 75 (3) of the Constitution, with the House having the power to remove the government by adopting a motion of no confidence. The Council of Ministers advises the President on how the Executive government will be conducted and the Executive government itself then functions as per the Rules of Business approved by the President under Article 77. Incidentally, under Part VI of the Constitution whatever applies to the Central Executive also applies mutatis mutandis to the State Executive. The Executive power vests in the President and he exercises this power through officers appointed by him under Article 53 of the Constitution and Part XIV of the Constitution. The permanent Executive, that is, the officers who implement the decisions of government, is organised into Services under Part XIV of the Constitution, with selection to the Services being done as per the provisions of Chapter 2 of Part XIV. The structure of the Services is hierarchical and, therefore, every official is accountable to his immediate superior and through him right up to the senior most person in his Service or his department. For the organised Services this accountability is virtually daily and continuous and an official who is unable to discharge his duty is liable to disciplinary action. The Conduct Rules, Disciplinary Rules, etc., are all framed to provide a framework within which the Services will act and be called to account for their actions. These officials, therefore, are accountable to their superiors and the ministers and can lose their jobs if they are found to be guilty of misdemeanour after a proper departmental enquiry. Neither the Legislature nor the Judiciary is subjected to this type of accountability, especially at the level of the higher Judiciary.

What are the functions of the Executive government? Under the definition given in the Chambers Twenty-first Century Dictionary one meaning given to the Executive is “the branch of government that puts laws into effect”. This is an excellent definition of the Executive. The implementation of laws, therefore, is the primary function of the Executive and whereas it is the Legislature which gives the framework of laws, it is the Executive which takes all the necessary decisions to implement the laws. A start has to be made with the Constitution itself, which is the fundamental law of the country. Therefore, the Executive has to take action to ensure social, economic and political justice and zealously guard the liberty of the citizen and ensure him equality of status and opportunity. The Executive has to take action to ensure that no citizen is discriminated against on grounds of religion, race, caste, sex or place of birth. It has to ensure that untouchability is not practised and that the protection under Article 19, especially to move freely throughout the territory of India, to reside and settle in any part of India and to practise any lawful profession and carry on any lawful trade or business is fully available to all citizens. The Executive must also strive to make the Directive Principles of State Policy an integral part of the business of government, which means that the Executive must secure a social order for the promotion of the welfare of the people. In other words, the protection of the people and the promotion of their welfare becomes a fundamental duty of the Executive. All this is possible only if there is an environment of law and order, public security and freedom of the citizen from fear. It is the duty, constitutionally and legally, of the Executive to ensure that such a climate of security is created. If one single citizen of India lives in fear then the State has failed in its duty.

Every business house functions with the objective of maximising profit and obtaining the highest possible return on investment. There is nothing intrinsically wrong or immoral in maximising profit, but in business terms it means an excess of income over expenditure. Everything in business is amenable to a cost benefit analysis in monetary terms and that activity which does not yield a monetary profit would come within the definition of bad business practice. The objective of government is to maximise welfare. Welfare entails the health, comfort, happiness and general well-being of people at large, welfare economics means equitable distribution of the Gross Domestic Product to the best advantage of people at large and the promotion of welfare uses welfare economics to maximise the welfare of the citizens. Health care of citizens, provision of social security, development of an educational system which extends the benefit of quality education to the least privileged child, elimination of malnutrition and hunger, providing directly or facilitating gainful employment, providing adequately for the defence of the country against foreign aggression and internal disturbance are all the legitimate concerns of the State in general and the Executive in particular. Many of the measures which are to be undertaken for this purpose will not pass a commercial cost benefit analysis. Quite often welfare is not quantifiable, though there are objective and subjective tests which can help us in determining whether maximum benefit is being delivered by the Executive.

Let us take a few examples Tamil Nadu pioneered the mid-day meal programme and is running the only successful example of this programme in India. Because the programme is being run efficiently over a million children in school get a nutritious diet, the school drop-out rate has substantially reduced and level of nutrition in Tamil Nadu is better than in any other State. It a fully subsidised programme, ultimately paid for by the tax payer. No private business establishment would take up such a programme because it does not yield monetary profit. But what about the social benefit which flows from it? Should not that be taken into account when assessing the programme?

Let us take another programme, that of providing housing and house sites to the poor. The jhugi- jhopdi resettlement scheme of the Delhi Development Authority is an example of providing a house site, with some services to, the squatter population of a city. Certainly the opportunity cost of land given to the squatters is not taken into account and in purely monetary terms people with no legal entitlement are thereby given a house site whose present value is a multiple of what that land cost when it was initially developed. Why only squatter colonies? Almost the entire programme of providing housing for the economically weaker sections, lower income groups and middle income groups, who were provided land and built houses at minimum, affordable cost throughout India has always been a welfare programme. Whole cities have developed because the State provided the development inputs to the cities. The present value of land in these cities and towns and of the land under the areas colonised for EWS, LIG, MIG beneficiaries would run into absolutely astronomical figures before which the estimates of CAG of losses in 2G Spectrum allocation and allotment of coal blocks would pale into insignificance. Are we to apply commercial norms to these welfare decisions of the Executive, ex post facto and to indict them for causing loss? Not if one looks at the duty of the Executive as one to promote welfare.

Let us take another example and that is industrial development. When the process of planning began one of the objectives of government was to create an environment and to provide the land and infrastructure which could promote the development of industry in India. Our major hydro electric and thermal power projects, the huge new capital industries of steel, aluminum, fertilisers, machine tools, etc, were heralded as the new temples of India. All over the world industrial area and estates were developed where land, power, water, roads and other infrastructures were provided to industry at highly subsidised rates. Prior to 1947 India had some industries but was not an industrial power. After 1951 there was no holding back of industry. Would that have been possible if the State had not provided? Would that have been possible had the State not formulated an appropriate policy and the Executive not provided the base on which industry grew?

Our great institutions of learning -- the Indian Institutes of Technology, Indian Institutes of Management, the Agriculture Universities, our magnificent Medical Colleges such as AIIMs, PGIEMR, Chandigarh and Pondicherry, the Indian Institutes of Information Technology, the Central Universities and the State Universities -- would not have come into being if the State had not invested in them and the Executive not created the necessary infrastructure. The intervention of the State and the process of Executive decision making have given India the foundations of a higher educational system which is as good as anything which can be found anywhere in the world. Commercially these decisions may not be viable but the national assets that we have created are beyond valuation.

Let us now go to the other end of the spectrum. Rural electrification by itself, especially in remote areas, is not a commercially viable proposition. However, rural electrification has certainly transformed the agricultural scene because with availability of power lift irrigation throughout the country has become both feasible and viable. Crores of pump sets are lifting water to bring irrigation to fields which would otherwise have remained dry. A subsidy is paid to the farmer by way of cheap power and the State is bearing the subsidy. Can such an Executive decision be faulted because it is probably costing State a great deal on a daily basis? What about the fundamental change which it has brought about in agriculture and the prosperity that it has extended to rural masses in far flung areas?

Very early under British rule, especially after the Crown took over the Government of India from the East India Company and assumed direct rule, it was decided that it was the duty of the government to look after the people in times of famine and scarcity. The Famine Code was drawn up sometime in the 1860s, to be succeeded by the Scarcity Manual which operates even today. The Collector of the District would do an annual or seasonal crop review and determine whether it was a year of scarcity or not. Thereafter relief works would be started and employment provided to indigent rural people. Today the programme is supplemented by such schemes as the National Rural Employment Guarantee Scheme, now renamed after Mahatma Gandhi, the Watershed Management Programme, the Integrated Rural Development Programme and other schemes aimed at improving the rural economy, providing better health care, promoting women and child development and various other schemes for the welfare of the people. These are all programmes mandated at the political level but implemented by the Executive. Are we to stop such programmes because the Executive thereby causes a drain of the public exchequer which is not recouped by commercial means? Even in a purely capitalist, free market economy such as the United States, when the economy began to collapse the government intervened and virtually nationalised banks, investment companies and various financial institutions in order to protect the people. The Executive will continue to take decisions and must continue to do so for promoting the welfare of the people even if it means that valuable land is virtually gifted away and budgetary support for welfare schemes is increased. To bring every decision of the Executive under the scanner of commercial viability is to sound the death knell of effective Executive government.

Even in the two worst cases for which government is facing so much opposition, the 2G Spectrum allocation and coal block allotment, we need to objectively bring the matter into a more balanced perspective. The argument that at a certain stage in the development of our telecommunication system allotment of spectrum without auction was appropriate because if that had not been done mobile telephony would not have achieved the present heights has validity. This issue needs to be looked at objectively and not necessarily through the prism of the audit report. If there is wrongdoing then let us punish the guilty, but let us not reject the policy without understanding all its implications. In the matter of coal block allotment two issues have to be separated. If it is decided to have coal based thermal power generation, then the proposed power station must have captive coal mines. Government through a transparent process can determine the tariff for coal, but no loss as such can be assumed merely because the mine was not auctioned. Without the coal power plants could not have been made operational at Sasan and Chittarangi and there is evidence to believe that these power plants will soon be operational. Every allotment made to a power company or an industry in which coal is an important input, in which the industry has taken all the necessary steps to go into production in the near future, should be deemed to be a valid allotment. Coal blocks allotted to dubious companies which have taken no obvious steps to activate the mine and to use the coal for productive purposes must be cancelled. In every single case where a coal block is allotted on political considerations the allotment should be cancelled. In every case where there is collusion punitive action must be taken, but if as a result of this government stops developing the coal sector it would be a tragedy.

The following lessons have to be learnt from the recent development in which CAG has been active, Parliament is not allowed to function, the press and electronic media have a field day and the Executive has become so scared of its own shadow that government has virtually ceased to function. That is what the Washington Post article literally states. Instead of being annoyed with a newspaper for writing something which is largely true the Government of India should now do a great deal of introspection and take all the necessary steps needed to activate the Executive and to make it function boldly but honestly. Let us cut all favouritism and nepotism out of the system and let the Executive perform its function of promoting welfare and governing firmly and purposefully.