Shifting responsibility for failure of governance to the political class on the specious plea that they lack autonomy is wrong
Montesquieu, the French political philosopher, made three broad classifications of state power, viz, Legislative, Executive and Judiciary, so that there could be checks and balances in the exercise of state power.
In a democratic form of government, the chief source of state power obviously rests with the ‘Council of Ministers’ headed by a Prime Minister or the Chief Ministers in the States of the Union. Cabinet, a small group among the ranks of ministers decides State/national policies. Parliament or the State Legislatures enact laws in pursuance of the said policies, and it is left to the Executive to implement them.
There are more than 30,000 laws in the country. International relations, matters of war and peace are decided by the Council of Ministers with the Prime Minister at its head. Judiciary interprets the law and constitutional norms and checks abuse of state power by the Executive. It also has the power to annul arbitrary laws, rules and regulations, including constitutional amendments, etc.
While there is no doubt as to the process of law-making, which is the exclusive domain of Parliament and Legislatures, there is no clarity even amongst the educated and learned when it comes to the exercise of Executive power of the state. Further, there is a crisis in governance when Judiciary encroaches into the domain of Executive.
Whenever there is an alleged miscarriage of Justice; people, intelligentsia included, tend to blame the political class for the sorry state of affairs. They overlook the role and importance of appointed institutions such as Bureaucracy, Police and various other investigating agencies, including the security forces and intelligence agencies, in the governance of State.
The issue assumed significance when Sonia Gandhi, (chairperson of United Progressive Alliance) lambasted the NDA government in October 2020 for misusing all the investigating agencies such as police, Central Bureau of Investigation (CBI), Enforcement Directorate (ED) leading to abuse of human rights and miscarriage of justice. It is, therefore, necessary to visit some of the constitutional and legal provisions to determine the truth as to who the villain is.
•Art 53 (1) – the Executive power of the Union is vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this constitution.
•Art 74 (1) – There shall be a Council of Ministers with Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice.
•Art 154 (Executive power of the State) – The Executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through the officers subordinate to him in accordance with this Constitution.
•Art 163 – Here shall be a: “Council of Ministers” with Chief Minister at the head to aid and advice the Governor in the exercise of his functions except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
Let me give a bird’s eye view of the legal scheme in which the “appointed” institutions have a disproportionate share in the exercise of Executive power. This needs to be stated loud and clear when the appointed institutions shift responsibility for failure of governance to the political class on the specious plea that they lack autonomy/independence in functioning. The truth is the opposite.
Granted that more autonomy is conferred where is the guarantee that it will be used in “public interest”? Take the example of Judiciary in India. It is fully autonomous. It appoints its judges of higher Judiciary through a legal fiction called Collegium (a group of senior judges). Its subordinate judges are selected by high courts and formal orders of appointment are issued by the government.
The Supreme Court and high courts have the power of effecting transfer of judges from one court to another. Yet, its record for rendering speedy and honest judicial services has come to be questioned. In the appointments of judges, the political class has no role or plays a secondary role.
Bureaucracy is a mammoth 30-million-strong institution in the country. The All India Services (Indian Administrative, Police, Revenue, Tax officials, Railways, Postal, etc) are selected by the Union Public Service Commission, an autonomous body. At the State level, the selection is through the State Public Service Commissions, which are also largely autonomous.
There is a set procedure for selection — a written test followed by an interview. I don’t think the political class can influence “selection” if the members of these commissions are honest and unselfish. There are also a set of rules and procedures for promotions. Senior bureaucrats and committees headed by bureaucrats play a big role, more than the politicians. From State Service officers to All India Services, a committee of officers headed by a UPSC member takes decisions.
The next phase is transfer. For the sake of lucrative posting, bureaucrats sell their souls to political masters. Even if 50% of bureaucrats are unselfish and honest, the politician’s transfer tool is handicapped. Even in transfers, the Ministers or the Chief Minister are guided by the recommendations of the head of the department, regional and district heads. They cannot simply overrule a particular recommendation for fear of adverse court comments, if the matter is challenged.
The Chief Minister has a large discretion in choosing heads of departments. But in respect of others, s/he is guided by the recommendations of the head of the department (HoD), etc. If the HoD lacks public interest in his recommendations that is a different matter. But by and large, senior bureaucrats imbibed with the spirit of honesty and public interest can shape for good the business of transfer of government servants.
In disciplinary matters such as suspension from service, removal and dismissal, bureaucratic and police leadership play a large role. State law officers such as the Advocate General, Attorney General, public prosecutors at all levels in courts as well as government pleaders, etc, are appointed by the government. They have functions and duties such as arguing the cases, preferring appeals, withdrawing criminal prosecutions, etc.
In all the cases, the minister is expected to be guided by their advice. The government independently cannot withdraw criminal prosecutions without recommendations of public prosecutors which means that honest and unselfish appointed institutions of government law officers play a large role in the justice delivery system.
There are many other appointed institutions such as the Comptroller and Auditor General, Election Commission, which are largely autonomous. This has been made possible through the evolution of case law by the Supreme Court.
(To be concluded)
(The author is a retired IGP)
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