"Serious governance deficit in Indian public policy is now a byword."
By Sudhansu Mohanty
Today perhaps we live in the most vexing time since independence – in a societal mindset where nothing seems to work normally; where ordinary activities that shouldbe done ordinarily as a matter of routine, never get done. So seldom are such occurrences of ordinary work that when they do actually happen on those chance occasions, they truly appear extraordinary – even surreal! So rare is the issue of honesty in public life that even when we come across an honest (but inept and inefficient) government official, we applaud him for his honesty. “He’s but an honest man!” we chime incredulously. As though he’s not supposed to be honest! As though that’s what the Conduct Rules prescribe for public servants! Such, sadly, is the depth and conviction of our collective social moral depravity!
As a democracy governed by the Constitution, the rule of law with separation of powerand checks and balances and with four columns: executive, legislature, judiciary, and the media, each with its assigned role, as also to checkmate abuse of power and transgression of bounds by other columns, the dynamic action should have held to maintain social equilibrium while ensuring change and progress. What then has gone wrong?
Peel off the epidermis and see the hypodermis. The so-called dynamic action has morphed to dynamic inaction. James Boren, tongue-in-cheek once said: “When in doubt, mumble; when in trouble, delegate; when in charge, ponder. A good bureaucrat is one who cuts the red tape length-wise!” To it, add Robert Klitgaard’s formulaic solution to corruption: C(orruption) = M(onopoly) + D(iscretion) – A(ccountability). Let me wrap my ideas around these two formulae.
Serious governance deficit in Indian public policy is now a byword. Lack of transparency, age-old Indian tradition of promoting family/clan/sub-national loyalty, culture of materialism that’s gotten more pronounced with economic liberalisation in a globalised world, and the urge to get-rich-fast, are the ingrained basis for all distorted priorities. Ethics is at the heart of the problem.
A peek at the psychology and compulsions of the early man, and it’ll tell us that the raison d’être of the social compact has been smothered – in the schematic social contract versus individual aspirations construct – and individual aspirations have triumphed. True, human aspirations and ingenuity have, from time to time, trumped compacts/contracts/rules; in short, regulations have failed the smothering primordial human urge to self-aggrandise. Are there lessons to learn here?
I wouldn’t know. The world has seriously changed with the internet highway and information technology, but I clearly see the vestiges of the past still colonising, even perpetuating most public acts. If I can’t still get over the shock of what, in my bureaucratic diapers in 1982, I’d seen – of how white ants ate away roadrollers or how cyclones were “manufactured” in the trans-Himalayan belt to score off inventories! – today I see variants of the same syndrome in new-fangled avatars. It’s as though we’re twiddling contemporary technologies with feudal habits!
Corruption, though, is not mere financial. As damaging as financial malfeasance is intellectual dishonesty, manifested in policy-making shrouded in official records. While financial misgivings are palpable, intellectual dishonesty – covert and subterranean – haemorrhages soundlessly till fixed; it skews and wrinkles public morality. The damage is incalculable. The clutch of scams and mega-scams that struck India circa 2008-12 evanesced citizen’s monk-like forbearance. Loss of taxpayers’ money apart, it showed how scams billowed to skew developmental agenda.
Propriety – financial and intellectual – is a key determinant of citizen’s quality of life. It encompasses legislation, governance, healthcare, education, commerce and business, agriculture and rural development, the justice system etc. Yet, the architecture of rule of law designed to fasten the order, often fails squelching unholy human impulses. Human nature – possessive, hedonistic, self-interested – has often trumped regulations. With the dishonest networked across professions, the countervailing institutions have failed, swaying to interest groups’ agenda. The people’s movement against corruption in 2011 for creation of Lokpal turned out a false dawn. Was it because the four pillars of democracy – executive, legislature, judiciary, and media – didn’t wish to disturb the applecart? How does such mindset affect governance?
Even 26 years post-liberalisation, the Indian rural folks still look up to government intervention for poverty alleviation. Governments hold the fund and welfare entities for the poor. For a feudal society with traditional bespoke mindset, state patronage remains the Holy Grail for majority aspirations. Nor are most men in the four organs of governance immune to quid pro quo: bought-out press and paid news; post-retirement sinecures; rewards and gratifications, are just a few examples. Socio-financial iniquities have burgeoned; unrest – born off a growing educated young middle class finding it hard to navigate opaque archaic government procedures and a corrupt officialdom in day-to-day living – leveraging technology and social media bristles asking moral questions: Doesn’t it diminish human beings? Doesn’t it breach basic human dignity?
The malaise is all-pervasive. In a way it’s natural, for regardless of profession, men are cut from the same societal cloth with symptoms of the same ecosystem. Look at the role of legislature and judiciary: Haven’t they been hubristic and for the highbrow as is often alleged, granting preferential treatment to the networked and the connected? How has the Supreme Court played its part in dispensing justice? Have judges transcended society’s feudal mindset? A host of recent cases come to mind: highway liquor ban, contempt notice to a former Supreme Court judge, national anthem case, judges seeking post-retirement employ, the delayed hearing in the Aadhaar case, to cite a few.
Restraint, rather self-restraint, is the authentic signifier of a mature institution. Absence of restraint even in the face of palpable injustice or manifest illegalities can corrode public confidence. The judiciary will do well to realise this. The rippling effect it creates in terms of revenue loss or employment as in the highway liquor ban case is simply beyond their ken to evaluate. The hubris of power to grant complete justice isn’t par for the course. Else, the very fabric of separation of power, one of the basic tenets of the Constitution, will be cast aside. For the protector of the Constitution, it is tantamount to the fence eating the crop!
As one columnist wrote, “The judge’s role, in any version of constitutional democracy, is to be a gatekeeper of constitutional boundaries, an ever-vigilant defender of rights, not to author more restrictions on civil liberties… If this is the role judges seek for themselves, then they must make themselves accountable under judicial review. The immunity from judicial review under Article 13 is to reserve the interpretive authority of the court, given the inevitability of disagreement emerging over its interpretations, not to shield episodes of absurd judicial law-making.” Have they then been the Caesar’s wife? How does the judiciary morally explain its dueling with the executive on appointment of judges through an opaque “collegiate system” when the Constitution consciously divvies responsibility between the two to avoid monopoly of either and grant fairness to selection? How fair is that? Does it pass muster of disinterested observers and provide oxygen to public faith?
In an interesting piece in The New Yorker, Evan Osnos refers to an article “On the intersection of health and politics” published in Brain, the British medical journal in February, 2009, titled Hubris Syndrome: An Acquired Personality Disorder? One of the authors was David Owen, former British Foreign Secretary, also a physician-neuroscientist; the authors propose creation of a psychiatric disorder for leaders who exhibited “impetuosity, a refusal to listen to or take advice and a particular form of incompetence when impulsivity, recklessness and frequent inattention to detail predominate.”This seems to hold good across professions, across nations.
Historically, the United States has relied greatly on checks and balances and freedom of expression including dissent. Senator John McCain, the Republican who ran for president against Barack Obama in 2008, reinforced this tradition when he wrote in the Washington Post:
“We must respect [President Donald Trump’s] authority and constitutional responsibilities. We must, where we can, cooperate with him. But we are not his subordinates. We don’t answer to him. We answer to the American people. We must be diligent in discharging our responsibility to serve as a check on his power. And we should value our identity as members of Congress more than our partisan affiliation.”
Sardar Vallabhai Patel once said: “Today my secretary can write a note opposed to my views. I have given that freedom to all my secretaries. I have told them: ‘If you do not give your honest opinion, then please you had better go’.” True protocol prescribes hierarchies, and offices carry authority. Yet the separation of powers, the rule of law, and the equal value of human beings are fundamental principles of the Indian state, notwithstanding what we often run into in real life. This makes it important when officers and judges demonstrate loyalty to the Constitution and respect for the citizen’s fundamental rights! Justice H. R. Khanna perhaps is more well-known today for his dissent in the ADM Jabalpur case than any of his contemporaneous CJIs!
Move over and see the mode of appointment of judges in higher judiciary, which has been the subject of much debate, not to forget the NJAC case. Not too well-known though is Justice Chelameswar’s letter to the earlier CJI put out in public domain in end-August 2017 – of how successive CJIs had “treated members of the collegium as supplicants” and how ‘informal meeting’ has transformed into a collegium meeting to nominate judges to the higher courts. To wit: “It is the law of this land that no meeting can be convened without a proper notice and an agenda, be it a meeting of a panchayat board or a cooperative society or a company or other bodies, statutory or constitutional. If you (Justice Khehar) believed these collegium meetings are beyond all principles of law propounded by their court, God save this country.
“If these discussions across the coffee table are to be treated by you as meetings of collegium where important decisions in discharge of the obligations arising from the Constitution are to be taken, I feel sad for this country. But I am of the view that such a procedure falls short of the legal requirements of a meeting. I believe collegium meetings are too solemn events to be conducted so casually.”
He inter alia writes in his 12-page letter that members of the collegium “are not participants in the decision making process but supplicants” making requests to the Chief Justice. “With great respect, I must tell you that it is not so. The judgment in the second judges’ case is the law declared by this court even today. It obliges the CJI to consult his collegium, either two or four, as the case may be depending upon the purpose of the consultation. Each participant is entitled to make suggestion and objection to the proposals. It is only after an appropriate discussion any final decision could be taken – not on personal requests of members of collegium and grace of the CJI… It is this understanding of the successive CJIs that the puisne judges (senior-most judges) who are members of the collegium (for that matter even others) are lesser mortals which creates all those problems which we are going through. Chief Justice is nothing more than first among equals. The other consulate judges, whether they are members of the collegium or beyond the collegium, are equal participants in the decision-making process, entitled to make suggestions and ask for information.”
Also responding to the CJI’s veiled threat to remove him from the collegium, Justice Chelameswar was categorical that the CJI wasn’t constitutionally empowered to do so. “I do not have to cite any authority for that. The second judges’ case not only obliges the CJI to consult the members of the collegium, it also obliges the CJI to consult in certain circumstances those judges of this court who are outside the collegium but well versed with the affairs of a particular HC as and when any decision regarding that HC is to be taken.” And, on the ex-CJI’s threat to expand the collegium, he wrote, “Membership of the collegium is fixed by a constitution bench of nine judges of this court and clarified by the third judges’ case. I am astounded to know that the CJI believes that such a position could be altered by a mere administrative decision. Such an authority was denied even to Parliament by the judgment of this court in NJAC case (a five-judge bench headed by Justice Khehar had by majority struck down NJAC).” Further that if any recommendations were forwarded by the collegium without his comments and if the government acted on it, “they would be utterly unconstitutional.”
[…to be continued]
(Reproduced from Indus Dictum where it was published on Sept 30, 2017)
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