Sly machinations of the officialdom can reduce
Political Executive and the Higher Bureaucracy to a naught (Published @ The Quint)
File noting
initiators are experts at deriving incorrect decisions from the political
executive which may militate against the broad stated policy of the Government.
Political will, thus, must be imposed with an iron hand.
Navdeep Singh
Having dealt with
litigation and public policy for long, one thing that constantly bothers me is
the lack of proper inputs to the political executive and even to the senior bureaucracy
finally leading to improper decisions which do not reflect the collective will
of the Government but only the personal opinions and limited understanding, or
lack thereof, of the army of section officers and under secretaries who
initiate file notings, ultimately resulting in issuance of policies that at
times militate against the broad stated position of the Government itself. In
the end, the restrictive and limited understanding of the initiators of the
file notings at the lowest echelons of the Government is imposed upon millions
of citizens in the form of public policy, which, good or bad, the Government
later has to defend even when genuinely attacked, and which, even if realized
to be imbalanced, is not usually rescinded since it becomes a prestige issue
for the higher ones who signed it.
I was reminded
of this disturbing reality again while going through a recent Office Memorandum
(OM) issued by the Department of Personnel & Training (DoPT) on the subject
of litigation, issued on 7th of June. But more on it later in this
piece.
It needs no
emphasis that our Courts are overburdened with litigation, especially appeals
and challenges initiated by the Government and its instrumentalities. The
Government, over the years, has become a compulsive litigant rather than a
responsible one. The reason is simple- the Government is faceless and
responsibility is seldom fixed on individual personalities, and there is no
personal financial pain involved since it is the taxpayers’ money that is
squandered on litigation.
Alive to this,
the Prime Minister commendably conveyed to various departments that such litigation
should be decreased and even disputes within various departments and Ministries
should be resolved. The Law Minister further, as he has made publicly known, is
trying to tune-up a new National Litigation Policy, which besides other
measures, would be attempting to curb irresponsible litigation initiated by the
Government and its agencies.
But the situation
on ground is quite hazy. One latest example of this condition is the above
mentioned Office Memorandum. To put it crudely, the said circular, by a sleight
of hand, wants to put to naught the efforts of the current regime, the
endeavour of the Law Minister and even honest legal opinion recorded on file.
Since on many
occasions, when Courts render decisions which are perceivably against policy as
interpreted by DoPT, the Law Ministry opines that the decision should be implemented
without filing any appeal, the DoPT has found a unique solution, and that is,
by way of an innocuous looking line in Paragraph 1(a) of the OM it has decided
to do away with the process of referring the file to the Department of Legal
Affairs of the Law Ministry altogether and rather to go in for an appeal if the
matter is perceived to be against ‘policy of the DoPT’. Needless to state, this
practically means that appeals shall be filed in almost all cases where
positive decisions are rendered by Courts and Tribunals in favour of employees
since in the first place such employees would have taken recourse to judicial remedy
only when their departments would have rejected their claims based on their
interpretation of ‘Government Policy’. Of course, the reality also is that more
often than not, appeals and reviews are filed in employment related service
matters not out of any genuine reasons or judiciousness, but out of ego and
prestige. As far as litigation is concerned, the Government has always been
trigger-happy, and the only speed-breaker, at times, was the candid legal
advice by the Department of Legal Affairs, which is its first bounden duty under
the Allocation of Business Rules, and with that now out of the way, the raging
bulls of litigation are bound to have a free run putting the efforts of the
Prime Minister and the Law Minister to jeopardy.
So what is the
solution? The quest for an answer to this is admittedly not an easy task. But then
some very basic steps can be taken:
(a) Follow a collegiate method of decision-making rather than the
one-way file noting system. Make face to face meetings by the competent final authority
more frequent where polices or even regular decisions affecting the public,
before issuance, are thrashed out and brainstormed rather than relying upon
notes put up from below. Look beyond the comfort zone of the coterie that
insulates from practical ground realties.
(b) Follow a more aggressive system of stake-holder consultation to
get a well-rounded view of the issue at hand. For example, on the issue of
litigation or public policy, the authority empowered to take a decision, while
retaining that right to take a decision, must consult all stake-holders,
experts and also representatives of the affected parties so that he or she gets
an unbiased 360 degree viewpoint rather than just the perspective of the
official establishment. In such meetings, there exists the very useful
opportunity of rebutting incorrect or imbalanced views which might go unchecked
on file when there is nobody to counter them. The regular meetings of the
Standing Committee of Voluntary Agencies (SCOVA) and Joint Consultative Machinery
(JCM) under the same DoPT are worth emulating in other spheres of policy
making.
(c) Ensure that the political will is enforced with an iron hand.
India is a democracy where the desire of the political executive should reign
supreme. Once a particular pro-people broad decision on public policy is taken,
any projection of hurdles should not be accepted and a strong top-down approach
must be maintained.
All of us must
understand that since times immemorial, our governance and policy have been
slaves to ego-enhancement tools of those in key positions, even if at junior
levels, where the ability of creating impediments for the public or to make the
masses run around in circles, are symbols of power, prestige and a perverted
form of augmentation of self-esteem. In such a scenario, our Ministers must
understand that officials down the chain would not want to let go of the power
concentrated in a few hands- such officials thrive on the sadistic pleasure
from red-tape and license-raj, they love the way they can derive decisions out
of generalists and political leaders, and thus to overly rely upon such
elements would be the greatest disservice to what our nation, incidentally a democracy,
stands for.
India should be
governed by robust policies made for public good powered by good intentioned
outlook of a strong political executive, and not by the personal opinion of
some bored babu sitting in the corner
of some dull room in Delhi wanting to impose his or her limited exposure and approach
upon us. Representatives of the people must apply mind and should not be taken
for a ride, you are answerable to the people, not that babu.
Political
executive, please stand up and take charge!
----
Major Navdeep Singh is a practicing Advocate in the Punjab &
Haryana High Court. He was the founding President of the Armed Forces Tribunal
Bar Association. He is a Member of the International Society for Military Law
and the Law of War at Brussels. He was also a Member of a Committee of Experts
constituted by the Defence Minister on directions of the Prime Minister to
reduce litigation initiated by the Ministry of Defence.
