Disservice to the Service

“Being powerful is like being a lady. If you have to tell people you are, you aren't.” This quote is attributed to Margaret Thatcher, the first woman PM of the UK. She definitely has the credentials to say that. She was quite powerful. Plus, she was a lady too.

We shall return to the Iron Lady in some while. First, we need to look over a list of some powerful persons. Here is a list of Judges of the Bombay High Court. Observe the initials “I.C.S.” at the end of most of the entries, ending slowly somewhere around the entry for “Mr. V. B. Raju, M.A., Diploma in Economics (Madras), I.C.S”, somewhere around 1959. Then, this is a similar list for the Allahabad High Court.  Read the initials at the end of the entries at numbers 5, 8, 11, 22, 24, 25, 33, 44, 54, 91, 96, 102. In fact, 102 became the Chief Justice too. Finally, here is a bio of a former Judge from the website of the Supreme Court of India, which reads as (partial quote) – “Ramaswami Vaidynathier, Msc. Bar-at-law – Born, 30th October, 1904, Educated in Presidency College, Madras. Universities of Allahabad and Oxford and Inner Temple, London. Joined the I.C.S on 9th October, 1929. Asstt. Magistrate and Collector in Bihar from 9th December, 1929 to 29th June, 1933; Secretary to the Orissa Committee under the Government of India; Reforms Officer from 30th June, 1933 to 15th November, 1933; Joint Magistrate in Bihar from 21st November , 1933 to 24th February, 1936; Chief Justice of the Patna High Court from 30th April, 1956. Appointed Judge of the Supreme Court from  4th January, 1965.” 

 

In that magnum opus on the Civil Service, “The Men Who Ruled India”, Phillip Mason describes the avenues of promotion available to the officers of the erstwhile Indian (formerly Imperial) Civil Service. Starting at a post variously described as Assistant Collector / Joint Magistrate / Assistant Commissioner, followed by a short stint at the Government, and then the coveted post Collector & Magistrate, the officer had a choice. He could continue in the basic “Revenue” department, and go on to be Collector, followed by the post of a Divisional Commissioner, and then the Board of Revenue and its Chair (Theoretically the senior-most Civil Servant of the Cadre). He could switch to the Secretariat and go on various mutations of “Secretary to the Government”, ending at Chief Secretary. He could join the Political Service and serve as Resident in the princely states or represent the British India abroad. Finally, he could opt for the Judicial branch, and rise through the Sessions Court to the High Courts of the Presidencies, and even become a Chief Justice.

When did it all end? With the Independence, and the amalgamation of the States within the Union, there was no need for Residents, and the newly born Foreign Service took the diplomatic assignments. Various Departments (like the Board and its equivalent) were systematically subordinated to the Secretariat through the various “Business Rules” and later enactments. However, the biggest body blow given to the Service came from elsewhere. The Indian Administrative Service was born in 1946, taking over as a successor of the "heaven born" ICS. However, it seems not to have been a neat succession. The CMs' (or, as they were kmown then, Premiers') conference of 1946 resolved to take the Judgeship off the plate of their soon to be subordinates, and the subsequent Constituent Assembly debates on the matter went quite unanimously as far as these political wishes were concerned. The Constitution of India, enacted in 1949, contains the qualifications for becoming a Judge in the Supreme Court in Article 124(3) – “A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist.”  Similarly, for the High Courts,  Article 217(2) states that -  “A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and (a) has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.”  Notice the preference given to Advocates at all the stages. This can be attributed to the fact that adjudication is largely a legal field (and the fact that the Constituent Assembly, and the Freedom movement itself, had a preponderance of participants from the legal background!) However, the Higher Courts are not merely adjudicators. They have the onerous responsibility of overseeing the governance structure itself. Increasingly, this work has seen a significant rise in importance over the adjudication role (if the headlines judgements, and the rise of court cases pendency are seen). Hence, the role of administrators here is conspicuous by its absence. Constitutionally, there still is a leeway. Notice the language of 217(2)(a) – ‘has held a judicial office’. Who can hold such a judicial office, as per the Constitution? Article 233 states that – “233. Appointment of district judges (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.” Again, there is an entry for advocates or pleaders, but a person already in the service of the Union or State are not Constitutionally barred from getting in. Still, the trail of Lordships from the Civil Services seen above dries out somewhere around the late 1950s. 

Why have I detailed out all this Constitutional arcana? This is because, of late, there has been a lot of heartburn among the brethren of this Service, about the ‘decline in the power and prestige’ of the Service. As scholars (which all of us became when we prepared for the Services), we must understand that in a mature democracy, power vests in institutions, and not in individuals. Even among institutions, most are confined to their very specific mandates. They must be  subordinated to the wishes of the ‘customers’ who use their services. It is a thoroughly Indian phenomenon where servicing acustomer is a rather menial task in itself (and the same has been detailed out in this earlier post.) However, one institution, which shall always retain its Majesty and Honour, is the Court. It is so in the oldest of the democracies – the UK and the USA. Even in that dramatic scene in the movie ‘Mughal-e-Azam’, when the prisoner Prince Salim is brought before his father (and the Emperor of India) Akbar, the great monarch refers to himself as ‘Ye Adalat’ (this Court). He is supposed to the all powerful monarch, and yet the majesty of the Court exceeds his own! However, as a service, we have failed to recognize this. (And if we have succeeded in that, then we have failed, even more spectacularly, in acting upon it.) The drafting committee of the Constitution had a number of ICS officers. Yet, they (we?) could not prevent the drafting of Article 50 in this particular manner – “The State shall take steps to separate the judiciary from the executive in the public services of the State.” Which culminated in the enactment of the Code of Criminal Procedure, 1973, which created a new class of Magistrates, the judicial magistrates, and reduced the powerful District Magistrate and Subdivisional Magistrate to the category of “Executive Magistrate”. No doubt, the tradition of vesting the executive and judicial power in a single person was wrong, if not for any other reason then for Natural Justice itself, as the prosecution is usually an executive prerogative, and the District Magistrate did (and still does) exercise control over it, and thus he used to be a judge ‘in his own cause’. However, separation of services itself has no justification in that doctrine. A contemporary IAS officer may write a two page noting on how a project of his Department is very well justified, and then, if transferred to the Finance Department, can write an equally powerful two page noting on how the project is infeasible! There was no reason why the same officer, as a District Judicial Magistrate, would have concurred with the District Executive Magistrate (unless of course, he held both the posts, as he did prior to 1973.) In fact, the term Executive Magistrate has confounded me a lot, although I have served almost 3 years as one (and look forward to some more years in a similar seat – powers willing). Theoretically, Executive Magistrate is not qualified as “Executive” Magistrate – he still (theoretically) is ‘the’ Magistrate (notice how the terms DM and SDM do not have an ‘executive’ qualifier, as opposed to CJM and SDJM) – minus the power to hand out judicial punishments. He is the residuary authority. He has to maintain the rule of law and governance structure (as the word Magistrate has its origins in the word “Master”.) Devoid of his judicial powers, however, he must, legally speaking, do so while the persons, against whom he must guard the rule of law, know that he can do little more than complain to the judicial magistrate, in case they thwart his attempt to maintain the rule. (Of course, Sections 107 to 122 of the CrPC can still be managed to become the Legislator, the Judge and the Jailor in one go – tricks of the trade.) In practice, however, the term Executive Magistrate has seen decline in its prestige. Regular EMs hardly get to do much court work. Then there is this heavy reliance of ‘magistrate deployment’ – nominating an army of officers of various departmental services as Special Executive Magistrates, for very menial sort of work. At any festival, or VIP visit, we can see the spectacle of such ‘magistrates’ guarding doors with a stick in the hand. One senior PCS officer I know called them ‘barsaati’ magistrates, drawing a parallel to the monsoon borne insects due to the seasonal nature of their deployment. Well, not only barsaati magistrates get such ignominious duties. The author has also performed quite a lot of them. Of course, being close to the area of expected ‘breach of peace’ is supposed to help. However, for such eventualities, the CrPC, vide its Section 129, empowers even a Sub Inspector of the Police to take the appropriate action. In fact, the SI, and his police superiors, would be in a much better position to act in these circumstances, owing to their training. If the idea is not to use the powers under Section 129, but those under Section 107, then why not go ahead and complete the loop by micro-appointment of Special Judicial Magistrates too, to summarily punish such breaches of peace, as and when they happen. (In my opinion it would be much more effective!) However, the judiciary is too smart to let its dignity be rubbed to the ground thus. In practice, the SEMs are not supposed to use even the powers under 129 (unless they want to be tried criminally, ironically, by the Judicial Magistrates!) They are simply supposed to coax, beg, whine and do what it takes – to sell off personal and professional dignity to keep a semblance of order. It reflects on the ‘hallowed’ Service too – if an executive magistrate is embodied in the ill trained and ill equipped ADO riding his hired rickety jeep as the ‘magistrate’ of an election ‘flying squad’, his boss the District Magistrate loses a lot of the awe he is supposed to inspire.

The question which faces us starkly, is why did did come about to happen? Out of all the engaging and powerful bastions the service held lien on, why did we end up putting all our eggs in the most vulnerable of the baskets - the Secretariat service, and failed to defend the most insulated one? Not only that, we steadily eroded the status of the Departments vis-a-vis the Secretariat. Thus, the powerful Board (with apex revenue jurisdiction) was made a parking place for out of favour senior officers (the Board has recently regained some of its lost glory, for sure, though.) Thus, in a period of around 15 years (from 1960 to 1975), our highest eligible post came down from Chief Justice to Cabinet Secretary (and Chief Secretary in cadre). We are not counting post retirement Governorship that many of our senior colleagues get as service is not a qualification for that. There is just one post of Cabinet Secretary in the country. There are hundreds of High Court Judgeships, over which quite a number of our senior colleagues would have been posted had the system continued. When the Courts took the activist route, these administrator turned judges could have bolstered the good intention of such judgements with a dose of practicality. They could have ensured that the Political leadership did not hammer the Secretraiat wing of the service into a "committed bureaucracy" mode by misusing the tools of administrative control. Alas, these are but wishful thoughts. For we chose to bet on the Secretariat service more. Knowing fully well that of all the Wings, this one had to play a second fiddle to the Political executive in a democratic setup. Why? If I am allowed to be cynical, I must say that it was the lure of limelight and 'action' that the members of the service still get. In Mason's book, it is known that even in the British Raj, those who opted for the Judicial branch were considered not 'manly enough' for the service - mere bookworms. Even today, Revenue officers who spend more time in Court (instead of on the field, and in front of a camera!) are seen as laggards, whereas they might be solving more problems than the latter. So, maybe when the Constitution was being drafted, our seniors decided to do away with this needless diversion. If I am allowed to be at my cynical worst, I think pecuniary considerations were also at play. The British Raj was largely a Police state, and secretariat work was just a bit of pen pushing and rule drafting. However, the INC had made it very clear that the Republic of India was to be huge Welfare State, with the Secretariat at the very nipple of its famed "mammaries". So, it was the new happening place, and the dry court work must have lost whatever charm it might have held. May be I am wrong here. May be, our Service ancestors, the departing ICS, just out of whim, flipped an enormous bird in the face of their younger IAS brethren! Maybe the political bosses held too firmly to the resolution of the Premiers' Conference. The fact, whatever the reason behind it may be, is that we have holed ourselves in a very precarious situation - we have locked ourselves in with a tiger, thrown away the tranquilizer, and are riding it hoping not to be eaten.

Nowadays, our Service brethren suffer a lot of heartburn when the other allied services ask for pay and service conditions equal to us. Theoretically, they are not wrong. ICS used to be paid better as they held higher posts. All Central Services are theoretically eligible for empanelment (the protest is simply to make the theory a practice). However, only the ICS used to diversify to Judicial (and hence Constitutional) posts, where there was no question of parity. Even today, we say that the Benaami Act has hugely empowered the Revenue Service, and various anti corruption legislations have done so with the Police. However, most of these are investigatory powers, with some quasi-judicial standing. We inherited the powers above the investigators, that of Courts, and we have squandered them off slowly but surely. Even today we have enormous court powers. An SDM in UP still has the power to decide titles of Agricultural land, which is 80% of the Land Area of the State. This is in addition to the powers of a Criminal Court under CrPC, which, if properly used, are still good enough to maintain the rule of law and strike fear in the hearts of those who wish to disrupt it. Sample the wordings of the Section 107 (1) - "When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond" etc The Websters' New World Law Dictionary defines 'wrongful act' as "Any act that will damage the rights of another, unless it is done in the exercise of another equal or superior right. For that reason, the scope of wrongful acts is not limited to illegal acts, but includes acts that are immoral, anti social, or libel to result in a civil suit.etc." Thus, this section gives the Executive Magistrate (not just the DM, ADM or SDM, but even the ADO in his rickety jeep on Flying Squad duty) the power to order a person not to do some act which may breach peace, the act being not confined to the list of currently legislated illegal acts. That, my friends, is practically the power of legislation! The same EM can, after hearing out the person, order him to undertake not to do the act under section 117, and commit him to jail if he does that act after giving this undertaking! This is the theoretical part, though. What we do, practically, is to simply state the police report verbatim in our notices under 107, and take undertakings without any hearing, from persons who are too illiterate to know the law (and their rights under it), aided by counsels of similar nature. When we decide that a person is too much of a threat to be left out, we pass orders under 116(3) instead of 117, and then hold the person in illegally in the name of 'verifying the sureties', instead of the easier exercise of passing the orders under 117 and committing the person at the first attempt to breach peace under 122 - which is the legal way. How can the young Magistrate learn all this if he is not to be present in his court, but on the field, ingratiating himself with all and sundry low life local politicians to keep peace in a way Neville Chamberlain would have been proud of. He is supposed to do Grievance Redressal in 7 days. Well, the populace does not approach an SDM with the corporate style grievances like - "Excuse me, my pizza is a little cold, kindly change it". Sample any list of public grievances, at any forum - the daily hearings of BDOs and SDMs to the PG Portals of PMO. Most of these are about land and property related disputes - someone encroaching upon others' field, either maliciously, or simply because someone else has encroached upon his own field in the first place. A person has sold his land holding to two different persons, without subdividing it, and now both purchasers are fighting over the better located roadside area. Or simply, the villagers of a village have signed a mass application for a road that connects their village to the highway. If all such applications are combined, the demand for funds outstrips the supply by 50 times, not to speak of the engineering manpower of the district. These are not grievances that can be redressed in 7 days, whatever the rules may decide. If such issues were amenable to 7 days resolution, our courts would not be cluttered with decades old suits. And asking the officer to 'go to the field and solve it' is even worse. It ensures that the days' business is confined to that particular issue alone, whereas the same officer might have seen 10 - 20 issues off had he spent the day in his court instead. Secondly, it lessens the authority and majesty of the officer. There is hell and heaven difference between going to the miscreants backyard and summoning him in your Court. We need to understand the difference between political work and governance work (and also make our political masters understand it). "Going to the field" at every occasion is the job of the politicians, who must seek votes. The permanent executive was insulated from the whims of people simply to enable them to take practical, if less popular, decisions. Governance is not the business of pleasing people. It is the business of keeping order and making things flow unimpeded as far as possible without disturbing the order. Politics, on the other hand (especially a deep democracy like ours) needs to be people pleasing, or populist. It would be undemocratic if it were otherwise. It was our job to make the twain meet. A political master once told that they could do away with the IAS and work better with the provincial service. True. They might. It was not our role to race the political ambitions and ideas to their desired conclusion, whatever may the implications be. It was to aid, advise and occasionally dissent. However, from the highest policy making levels to the lowest implementation levels, we have 'rolled over'. Government orders, and even legislations are churned out at the drop of a hat. My old timer Collector told me that when GOs used to be issues in his starting years, it used to news worthy - that government has changed some policy. There used to be quality in legislative and subordinate legislative drafting. The land acquisition act of 1894 served us well for over a century. Opportunistic politics played on impractical ideas. We could have dissented, and played the 'bad guys',and drafted a practical legislation. Instead, we got ourselves the Act of 2013. The rest, as they say, is history. The role of the dissent has already been abdicated to the judiciary, who have taken to it with aplomb. Our equally, if not better, qualified brethren are made to appear stupid when judiciary plays that role. Simultaneously, at the field level, the lower role of control has also been systematically eroded by tying the Collector to actual execution of almost all departmental schemes (instead of control). Instead of keeping a check that the implementation is done as per the norms, the Collector must now push to the target, norms be damned. The departmental officers have turned blunt, and look up to the Collector to get all their schemes implemented. All GOs are now addressed to the Collectors and Commissioners, and similarly, all District Level correspondence to block and lower level functionaries is being signed increasingly by the Collector. At the end of every month, we have this ridiculous spectacle of Collectors urging the Departmental officers to fudge their figures, so that the Collectors' rankings go up! The turtle on whose back the Elephant of the empire rested has been steadily reduced to the donkey who hauls the cart of the Welfare State. That was not the idea with which the British created the post of the Collector and the ICS, or the one with which Sardar Patel retained the two. Outside of his core work of Revenue, Law and Order and Elections, the role of the Collector should be that of control. If we do that, majority of the writs from the myriads of departmental works would stop clogging the higher Courts. A very good idea would be to stop posting IAS at positions where simply following procedural orders exceeds 50 percent of the brief. The service was raised to apply its mind, challenge and question. There are much better options available if all that is needed is a "Yes sir", and a click of the heels.

As far as our mode of solving our Service issues is concerned, I feel that we should take Maggie Thatchers' words quite seriously, and let our effectiveness do the talking. Even on this date, even with all the decline in its standing, the Service (or rather, individuals from the service, within the government executive at least,) wield(s) a lot of power. If all of us decide (the emphasis is on ‘all’ of us), not to let bad things happen, they won't. Our senior colleagues are still holding the highest offices of the government. If the stands taken by us in public is correct and based on facts, why wont our senior colleagues act on it in their official capacity and prevent the miscarriage of justice. The investigative agencies, the prosecution, all are under various departments of the government headed by our senior colleagues. Even if they weren't, we, through our Associations, have the calibre to move the Court and put our version better than most lawyers. However, we choose to wield decidedly political tool of public protest. Politicians are way better at that, and would beat us comfortably each and every time on their home turf. Also, picking only on graft cases is a PR Disaster. When was the last time we defended our court powers. The CrPC, in its Section 132, clearly says that - (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except –

with the sanction of the Central Government where such person is an officer or member of the armed forces;

with the sanction of the State Government in any other case.

(2) No Executive Magistrate or police officer acting under any of the said sections in good faith;

        no person doing any act in good faith in compliance with a requisition under section 129 or section 130;

        no officer of the armed forces acting under section 131 in good faith;

        no member of the armed forces doing any act in obedience of any order which he was bound to obey, shall be deemed to have thereby, committed an offence.

Can any SDM or ADM today really believe in the above Sections and discharge his Law and Order duties fearlessly? Can he believe that the government shall not sanction prosecution because the supporters of the local MLA were lathi charged and the concerned officers in the Secretariat rolled over. Or if the Court decided to try the case without waiting for the sanction, will our associations take it up with the higher judiciary? And why only the Magistrates -  a lot of our colleagues and subordinates from the Police, from the CAPF look forward to such protection, because, in their eyes, once a Magistrate is present on the spot, every action they take is technically under a Cout order. Leave aside law and order, what do we do to defend our (rather fast dwindling in numbers) subordinates in the departmental services, who, try to do the right thing despite political pressures. If we, as a body, start taking up such causes too, then perhaps they would not be questioned so much as they are being done now.

 All is not lost. It is not possible to scale the earlier heights, nor is it proper in a democracy, where the political authority has to be ascendant. However, the Institutions must be supreme. That is where our strength lies, and that is what we must exercise. We should endeavour to reassert ourselves in the domains which are beyond the political ambit, for from there we draw our strength to resist being cowed down in the domains where we work in the supervision of political authority. To begin with, can it be argued that a Magistrate (even a lowly Executive Magistrate) derives powers from Statutes, and, more often than not, he must use them against people of political background. Hence, his administrative control vesting in a body totally comprised of political beings can lead to conflict of interest, which may manifest itself as ineffectiveness (when the ruling party breaches peace), or partial action (when the opposition is involved). We have made Civil Services Boards, but they are manned by serving officers, who are similarly encumbered by the government. One way is to include the higher Courts (as the ultimate custodian of the CrPC, under which our Magistrates work) in a better empowered Board. Perhaps we do not need to look outside. Our retired senior brethren have manned the Election Commission since its start. Since they are independent of political control, they (and under their administrative control, we) have been conducting elections quite flawlessly. That includes a much better enforcement of Law and Order under MCC. Would it not be good if the situation of law and order could be the same throughout, as it is during MCC. Would it not be good if all government work proceeds with the effectiveness of election work? We do not need to even create a new body. We just need to subordinate the Services Board(s) to the UPSC. Can we do it? Certainly it shall face resistance from all the stakeholders who have aided and abetted this decline, and have vested interest in a weakened Service. However, the biggest challenge lies within; the loosening of the Secretarial (and hence the political) stranglehold over originally autonomous institutions. The toughest fight we must fight, it turns out, has to be with ourselves!