Saturday, February 19, 2011

Question of Accountability

Dear Friends , 

With the 2 G spectrum in the backdrop, the question of accountability between minister and civil servant has assumed significant importance. And there is this neatly articulated article.I have highlighted the important notes which is mandatory to remember and quote if possible in the examination and have given the additional details in the later part of the articles.



We should take note of the basic concept of ministerial responsibility, which is the prime tenet of a Cabinet system of government as developed in Westminster and adopted by the Constitution of India.
There are four principal features of the Cabinet system of government. One is that the Cabinet is a single unit accountable to the elected legislature. On every important piece of policy and performance, all members of the Cabinet stand and fall together. The second feature is that, in the presidential system the head of the executive, the President — apart from impeachment procedures — is answerable normally to the electorate, either directly or through a system of electoral college. But in the parliamentary system, the Cabinet, led by the Prime Minister, is immediately answerable to the elected House. The third feature is that, while all members of the Cabinet are collectively responsible to the legislature, there is also individual responsibility for each Minister with respect to the performance of the Department or Departments under his charge. The fourth feature is that, although all members are equal and responsible for every decision taken collectively in the Cabinet, the Prime Minister represents the ‘keystone of the Cabinet arch' and occupies a position of exceptional accountability on the performance of the Cabinet on the whole.

About the dual responsibilities of a Minister, Ivor Jennings stated: “The Cabinet is a general controlling body. It neither desires nor is able to deal with all the numerous details of the government. It expects a minister to take all decisions which are not of real political importance. Every minister must therefore exercise his own discretion as to what matters arising in his department ought to receive Cabinet sanction. The minister who refers too much is weak; he who refers too little is dangerous.” (Page 233-234, Cabinet Government, Third Edition, 1980)

Jennings also stated that the minister is fully responsible for the decisions of his civil servants. He wrote: “All decisions of any consequence are taken by ministers, either as such or as members of the cabinet. All decisions taken by civil servants are taken on behalf of ministers and under their control. If the minister chooses, as in the large Departments inevitably he must, to leave decisions to civil servants, then he must take [the] political consequences of any defect of administration, any injustice to an individual, or any policy disapproved by the House of Commons. He cannot defend himself by blaming the civil servant. If the minister could blame the civil servant, then the civil servant would require power to blame the minister. In other words, then the civil servant would become a politician. The fundamental principle of our system of administration is however that the civil service should be impartial and, as far as possible, anonymous.” (Page 149, The British Constitution, Fifth Edition, 1971)

If a civil servant is found by an impartial enquiry to have exceeded or misused his authority or power to secure personal gain or advantage to other individuals or organisations, he should be duly punished under the law.

The report of the Comptroller and Auditor General on the 2G spectrum deals, submitted in November 2010, revealed a presumptive loss caused to the Central government of about Rs.1.76 lakh crore. This is the largest single instance of corruption in monetary terms in India's political history. Furious indignation among the media and the public, and the demands of the Opposition parties, led to the resignation of Telecom Minister A. Raja. Human Resource Development Minister Kapil Sibal now holds additional charge of the Telecom Ministry.
On December 31, 2010, the Telecom Minister appointed a one-man committee comprising Justice (retd) Shivraj V. Patil “to examine the appropriations of procedures followed by the Department of Telecommunications in [the] issuance and allocation of spectrum during the period 2001-09.”
Justice Patil submitted his report on January 31, 2011. It was put on the website of the Department of Telecommunications (DoT) on February 10. In the report, material covering the eight terms of reference is examined separately in each chapter.

As the committee was appointed mainly to study the appropriations followed by the DoT and to give suggestions to streamline policy regarding the future sale of spectrum, it did not go into past losses incurred by the government in the sale of spectrum. However, the terms of reference required the committee to “identify the public officials responsible in the cases of ‘deficiencies' and ‘shortcomings and lapses.” Accordingly, the report provides particulars of names and designations of the officials involved in taking decisions, responsible “for deviations in formulation of procedures” in 17 paragraphs of Chapter 6, and of the officials “responsible for lapses,” in 20 paragraphs of Chapter 7.

In 36 of the 37 paragraphs, the report lists the names and designations of officials, from the Secretary downwards. Invariably every paragraph concludes with the remark: “The officers named above appear to be responsible for the deviation,” or “for the lapses,” as the case may be.
In these paragraphs dealing with officers taking decisions, the Telecom Minister is associated with the officials in the following paragraphs (given here without the names and designations of the officers):
Para 6.1(ii): “The decision was taken on the basis of note put up (by 10 officials) and approved by the then Minister.”

Para 6.1(iii) is about the recommendations of the Telecom Regulatory Authority of India that were not placed before the Telecom Commission. It states further: “This was endorsed by 2 officials and approved by the   Minister.”

Para 6.1(iv) refers to the DoT seeking the legal opinion of the Attorney-General/Solicitor-General through the Ministry of Law and Justice on the procedure to be followed for the grant of new Unified Access Service Licences (UASLs). The Law Minister gave the opinion that in view of the importance of the case, it was necessary that the whole issue be first considered by an Empowered Group of Ministers. However, based on a note by two officers of the DoT, “the Minister took the view that the opinion of the Minister of Law and Justice was out of context and decided [that] the procedure for grant of new UASLs formulated earlier be continued.”

Para 6.1(vi): “Said decision was based on the contents of the letter of the Minister dated 26-12-2007 addressed to the Prime Minister. On the basis of [a] note by 3 officers and [as] approved by the Minister, [a] decision was taken to treat the contents of the said letter of the Minister as the policy of DoT.” Peculiarly, about the decision to issue a Letter of Intent (LoI) to amend the UASL on payment of additional fee, Para7.1(xiii) states: “This is in deviation from the practice followed which accords priority on the basis of date of application and not on the date of compliance of LoI. This decision was taken by the Minister on 17-10-2007.” In this case, no officer is noted as having been involved in making the decision. In all fairness and according to the principles of natural justice, it should have been noted that the Minister alone was responsible for this deviation. But no such comment has been made about his act of deviation.

It is difficult to accept the conclusion that the officers who prepared the drafts were responsible for the ‘deviations' or ‘lapses'; some of them were approved by the Minister himself. In particular, as per Para 6.1(vi), the decision was taken in the presence of the Minister to treat the contents of his letter to the Prime Minister as the policy of the DoT, which is stated in the paragraph to have been approved by the Minister himself. In this case also, the paragraph ends with the remark: “The officers referred herein above appear to be responsible for this deviation.”

It appears that there is a conspiracy to make the officials of the Ministry responsible and punishable for the actions of the Minister.

The principle of ministerial responsibility should be invoked in the matter of the decisions involved in the 2G spectrum scam.

If, in the case of the 2G spectrum deals, the Minister had acted on his own to issue licences, he comes under his individual ministerial responsibility to be accountable for the huge loss and the consequences of the unprecedented scale of corruption.

Mr. Raja had claimed that the procedures he adopted in the allocation of spectrum licences had received the stamp of approval of the Prime Minister, as his letter of December 26, 2007 had been acknowledged by the Prime Minister in a reply thus: “I have received your letter of December 26, 2007 regarding developments in the telecom sector.” If this assumption by Mr. Raja is acceptable, then the entire policy and procedures adopted in the grant of 2G licences will become a matter to be considered under the collective responsibility of all members of the Cabinet 

Saturday, February 12, 2011

The Minister versus the Civil servant

Dear Friends ,

Came across this article which is very much relevant for the students of public administration.


The Central Bureau of Investigation's decision to arrest the former Telecommunications Secretary, Siddhartha Behura, along with the former Minister, A. Raja, in connection with the 2G spectrum case, revives an old debate over the relationship between the civil servant and the politician. The drastic action by the agency should shake the entire bureaucracy, especially the officers of the Indian Administrative Service and the Indian Police Service, out of their complacency. It should make them introspect on how they should regulate their responses to ministerial demands for unequivocal compliance of directions. The issue is ticklish and may never be resolved to the satisfaction of either side, or even those members of the public who believe that the independence of the civil service became extinct a long time ago. Nevertheless, it has become necessary to place things in perspective, so that the public understands the dynamics of a relationship which places enormous strain on officers at the senior levels of the bureaucracy.

There is nothing that has been reported till now that suggests that Mr. Behura had been dishonest and received monetary favours from the companies which benefited. Only a CBI charge sheet will lead to the process of confirming or disproving his integrity. There is just a possibility that, while being personally honest he had been more than willing to do the Minister's bidding, in order to stay in the good books. It is not insignificant that he had worked under Mr. Raja earlier in the Ministry of Environment. The fact that he signed more than 100 letters in regard to the issue of licences within days of assuming charge as Secretary, is a cause for grave misgivings: he was dishonest or negligent or displayed a lack of application of the mind. His lawyer claims his client had raised several objections to the Minister's actions. It is not known whether these had been recorded on the files. If Mr. Behura's dissent had indeed been put down on paper, that would provide an extenuating circumstance when his criminal liability is assessed.

Lord Macaulay, who was the Law Member of the Governor-General's Council in India and later Secretary of War in England in the second half of the 19th century — he is recognised as the draftsman of the remarkably structured Indian Penal Code — visualised the civil service as a body of young men with outstanding intellectual abilities and values. His report of 1864 paved the way for streamlining the recruitment for and training of the members of the Indian Civil Service. The foundation he laid stressed the qualities of discipline and integrity. The early years of Independence saw both Prime Minister Jawaharlal Nehru and Home Minister Sardar Patel nursing the civil services with great care and affection. They were convinced that the bureaucracy, as it evolved under the British, constituted a vital and dependable machinery to push through with the various reforms that an infant nation desperately needed. The uprightness and patriotism of the two great men ensured that the civil services were kept insulated from the muddy waters of day-to-day politics and played the key role expected of it in maintaining social stability, thereby providing the right ambience for development work.

Overall, despite a few hiccups, the culture that respected the average civil servant flourished. A clear distinction between the policymaking role of the Minister and of the implementation function of the civil servant had come to be established. By and large, the latter could argue against a Minister's decision without the peril of being humiliated or penalised. Once the Minister made up his mind after a discussion, he had the last word, and the Secretary had no alternative but to implement the decision. There was therefore everything in the system that promoted candour and honesty.

The watershed in the infamous history of the Indian administration thereafter was possibly the Emergency, declared in 1975 on specious grounds. The arbitrariness that ensued led to the dilution, if not the annihilation, of many traditional institutions. The civil service just caved in without protest.

Since then, the floodgates have remained open, and there has been no stopping the process of tinkering with the civil service. The casualties have been the fearlessness and objectivity of the members of the civil service. Barring a few, Ministers both at the Centre and in the States have steamrolled the bureaucracy so much that a fear psychosis now envelops the whole civil service. The judiciary has generally been remiss in undoing the damage. This is because of the stand that it cannot step in where routine administrative matters (such as transfers and suspensions) are involved, and that an act of injustice done to a civil servant does not constitute any infringement of the fundamental rights embodied in the Constitution. The Administrative Tribunals have occasionally offered some redress but have not done enough to remove the fear that grips a majority of public servants. This explains the rot.

The current situation is one in which the average IAS or IPS officer can hardly say ‘no' to a ministerial fiat. Blind obedience is what is expected, even when a direction is downright illegal. Some of the unfortunate recent scams are a direct outcome of this situation. A few of the so-called ‘encounters' involving anti-social elements also belong to this category. The demand these days from a Minister is for instantaneous action, and any perceived delay by an officer is fraught with grave consequences. In earlier times, ministerial displeasure often resulted in an officer's transfer from a sensitive job. These days, however, the consequence of ministerial ire is an inspired physical assault or a dubious departmental enquiry.

Against this backdrop, how do you expect even an iota of independence or candour from civil servants? It is easy for many of us to be critical of them for their submissive behaviour. But any non-conformist uprightness is a sure route to disaster. This is despite many safeguards, including the protection provided in Article 311 of the Constitution, which guarantee due process before a major penalty (dismissal, removal or reduction in rank) is imposed. Suspension from service is perhaps the worst ignominy that can befall a government official. No doubt there are some restrictions on this power. These do not, however, deter a reckless Chief Minister from settling scores with an unbending civil servant, especially in the higher echelons. The Union government caused great damage by sharing this power with the States in respect of the All India Services. This has been the chief source of fear even among bold officials. Major reform is immediately called for in this area.

It is not as if the blame rests squarely with the politicians. Overzealous and greedy civil servants have contributed equally to the dilution of standards. Many of them have looked the other way when Ministers were found indulging in malpractices. Worse is the case of those who have themselves functioned as conduits for money passing to Ministers. A third category comprises those who are themselves guilty of corruption and cannot blame their Ministers of unethical behaviour. How else do you explain an IAS-officer couple in Madhya Pradesh having been allegedly 
found to have assets worth more than Rs.300 crore?

Are such officers the products of an ambience where there is a premium on dishonesty? Or, is it that they have a DNA which prevails over any instinct to be straightforward? What is clear, however, is that unless New Delhi takes up a major exercise to promote honesty in public service, especially in the IAS and the IPS, the country will come to be looked upon as a banana republic by the rest of the world. The growing feeling among major investors from the developed world that they cannot do business in India without paying bribes is a matter of shame.

In the meantime, my advice to senior officers is this: put down any dissent from ministerial directions in writing, and just abstain from any decision that even remotely suggests any irregularity or illegality. Do this even at the cost of being victimised through suspension or being ignored for a significant position that is legitimately your due. These are golden rules which you can ignore only at your own peril.