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.
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later has to defend even when genuinely attacked, and which, even if realized to be imbalanced, is not usually rescinded since it becomes a prestige issue for the higher ones who signed it.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.