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By: V.Sundaram, IAS
March 21, 2005 
FeedbackMr. B.G. Deshmukh former Union Cabinet Secretary has appositely observed: “Transfers of bureaucrats have a crucial impact on two sectors — law and order and security and the delivery systems in the country. On both these counts we have reached a critical stage and we will be in deep trouble very soon if we do not control/tackle this now”. People who are worried about good governance in India are quite shocked by the recent news item that the present Union Information and Broadcasting Secretary Mr. Navin Chawla is being tipped for the post of Union Home Secretary which is now being held by Mr. Dhirendar Singh. Mr. Dhirendar Singh is retiring on 31st March, 2005. Mr. Navin Chawla is due for retirement on 31st July, 2005. The most spectacularly classical element in Indian bureaucracy is that whilst all bureaucrats of similar seniority are equal on paper, yet some chosen few are more equal than others. Mr. Navin Chawla belongs to the latter category with tremendous clout in the UPA Government thanks to his unbroken record of loyalty and ‘service’ to the Nehru Family. He was very close to Sanjay Gandhi and wielded unprecedented power in his official capacity as Secretary to the Lt. Governor of the Union Territory of Delhi Mr. Kishan Chand during Emergency in 1975-77. He functioned as the de-facto Governor of Delhi and several bureaucrats who happened to interact with him during this period have confirmed the fact that he was known for his unabashed authoritarianism. His controversial role as Secretary to the Lt. Governor of Delhi was noted by the Shah Commission which went into emergency excesses. Mr. Navin Chawla did not cover himself with glory when the Constitution of India was subverted with impunity during emergency. As one who occupied a vantage position during that period, he was charged with arbitrary exercise of authority. Any other officer with this kind of background would have been sidelined under the cliché-ridden “Law will take its own course” umbrella. But there are spectacular exceptions to this general rule in our decadent and perverted democracy. It is here that I have to say with sadness that the politicization of the bureaucracy in India has been carried to absurd lengths and heights. Under the existing rules, the Union Cabinet Secretary can go on up to 62 years, unlike the other Union Secretaries who retire at 60 years. I understand that a proposal is being put up before the Union Cabinet for raising the age of retirement of Union Home Secretary and Union Defence Secretary to 62 years on par with Union Cabinet Secretary. The politicization of this loaded proposal is being cleverly and surreptitiously sneaked into the framework of rules by the UPA government proposition that the benefit of this upward revision will not be available to the existing incumbent in the post of Union Home Secretary who is retiring on 31st March, 2005. It is understood that Mr. Navin Chawla will replace Mr. Dhirendar Singh as Union Home Secretary on 1st April, 2005. He is likely to be the first beneficiary of the new rule raising the age of retirement of Union Home Secretary from 60 to 62 years. Thus the UPA Government is endeavouring to stealthily operate under the umbrella of the so-called Rule of Law by bringing in an amendment to existing rules and regulations in order to provide a special advantage exclusively to one individual, to the particular exclusion of not only the existing incumbent in the post of Union Home Secretary but general exclusion of several others who are equally qualified if not more for that post. There re several officers belonging to the 1968 batch and 1969 batch very much senior to Mr.Navin Chawla with a track record of outstanding and unblemished service and who would get side-lined in their last years of service for want of political cloud or for want of political patronage. The concern for upholding the cause of so-called public interest can not be so easily invoked in the case of Mr.Navin Chawla because if that is the objective basis for raising the age limit of retirement for Union Home Secretary from 60 years to 62 years, then Mr. Dhirendra Singh, the present Home Secretary, would be the first to qualify for the benefit of the revised rule. No responsible Government committed to the enforcement of the rule of law under the constitution can afford to have a shifting and personalized approach to the enforcement of common rules. It can not be argued that the factor of upholding the cause of public interest under the new rule can take effect only from 1st April 2005. We can not have arbitrarily chosen cut-off—dates in the matter of primacy of public interest. Justice is truth in action and not blatant untruth in snappy action. The UPA Government should not forget that there is a justice, but we do not always see it. Discreet, smiling, it is there, at one side, a little behind injustice, which makes a big noise. Aeschylus in his The Eumenides(458 BC) observed for all time: “ Nobody has a more sacred obligation to obey the law than those who make the law. Wrong must not win by technicalities”. The only consolation we have today is that such decisions do not ‘bureaucratically’ emanate from the ivory towers of the Prime Minister’s Office but ‘democratically’ arise from a Private Residence on a road dedicated to the common people appropriately called JANPATH----the path of the people. The morale of the bureaucracy in New Delhi has been shattered by the UPA Government’s approach to postings and transfers. After the death of Nehru in 1964, all political parties in India have used bureaucrats as their private handles or, if I may say so, as disposable condoms. No bureaucrat can survive in any sensitive post if he is unwilling to carry out the illegal or immoral or irregular dictates of his political masters, some of whom have functioned as boisterous thugs with full legal and constitutional protection in post-independent India. And if there is a bureaucrat who will heed his political master, he will be given a prime posting. In his individual case, rules would be so applied or interpreted or changed or modified as to suit the political convenience of the moment both “for the Master and the Servant, Lord and Serf, Guild-master and Journeyman, Freeman and Slave, in a word the Oppressor and the Oppressed”. BUREAUCRATS OF INDIA UNITE! YOU HAVE NOTHING TO LOSE BUT YOUR CHAINS!! In the Western context, according to Black’s Dictionary of Law: The Rule of Law refers to a legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. The rule of law, sometimes called the supremacy of law, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application. The notion of the rule of law, however, does not merely imply the existence of law and its application. It was developed in the context of Western liberalism as a means of restraining arbitrary actions by those in power. According to Friedrich A. Hayek, rule of law means that: government in all its actions is bound by rules fixed and announced beforehand; rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. More concretely, rule of law means, first, that laws must be applicable to every individual in a given society; second, the rulers must follow the laws as the ruled do; and third, the ruler’s behaviour is predictable. Rule of law is the very foundation of human rights. In the Western legal tradition, law is applied equally to all; it is binding on the lawgiver and is meant to prevent arbitrary action by the ruler. Because the rule of law means that government must never coerce an individual except in the enforcement of a known rule, it constitutes a limitation on the powers of all government. Viewed against this background, I can assert in the light of my own experience in the Indian Administrative Service for 29 years that all the political parties in India after independence have uniformly voted for the RULE OF MEN in replacement of the RULE OF LAW. The Congress Party has done this on Secular principles; the BJP has done it on Hindutva principles; the DMK party on Rational(!) Periyar and Anna principles; the AIADMK party on MGR principles(?) and the Communist Party on Leninist and Marxist principles!! All of them have enslaved all the bureaucrats of India, and through the bureaucrats, the dumb millions of India in the name of so-called democracy (sham!) and social (in!)justice. The rule of law is recognition of the government’s obligation to the citizenry. In arbitrary governments, like the present UPA Government all are equally slaves. A vague and indefinite obedience, to the fluctuating and arbitrary will of any superior, is the most abject and complete form of slavery. Most unfortunately, the UPA Government’s modern interpretation of the term “law” is an invitation to the abuse of power. The English jurist Sir William Blackstone declared in 1765 that “law is not a transient order from a superior to or concerning a particular person or thing, but something permanent, uniform, and universal.” The U.S. Supreme Court declared in 1907, “Law’ is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.” But nowadays In India laws are being increasingly introduced to bind ordinary citizens in arbitrary ways. Laws are often getting carved in the political fluctuations of expediency. In the Indian context, a law is simply a reflection of the momentary perception of self-interest by a majority of Members in a legislative body. It is binding only until enough Members of that body find it in their self-interest to repeal or revise it. Thus Law is increasingly something that Government does to helpless private citizens — until further notice—from time to time. The flood of laws and revision of laws in India amounts to perpetually changing the rules of society all the time. Laws are always on the eve of the next sweeping revision, creating an atmosphere of legal instability and uncertainty. Neither the legislators nor the bureaucrats in our country now have any sense of the sanctity of law — of the idea that law should not be changed simply for momentary political convenience. The more often government officials change the rules by which individuals will be judged, the more those individuals will be left to the Government’s mercy, since most citizens do not know and cannot possibly understand the law and regulations they must obey. In our country during the last 30 years, support for the classical concept of the Rule of Law has evaporated. Instead, competing bands of self seeking intellectuals have been championing either the Executive Branch or Legislative Branch or Judicial Activism or some other fleeting fad from time to time. Rather than focus on the actual operations of Government Agencies, political thinking is often characterized by a “Do it now!” philosophy. Discretionary power has been granted to bureaucrats in India by many laws because Ministers and political leaders in India don’t have the courage to say openly what they want the bureaucracy to do, leading to government by stealth. Arbitrary power is thus the mirror image of the Indian Rule of Law. Arbitrary power destroys morality, for there can be no morality without security. Arbitrariness is incompatible with the existence of any government considered as a set of institutions. For political institutions are simply contracts; and it is in the nature of contracts to establish fixed limits. Hence arbitrariness, being precisely opposed to what constitutes a contract, undermines the foundation of all political institutions. The essence of arbitrary power in India is government’s refusal to issue clear rules limiting its prerogative to punish or reward its servants and citizens. If the posts of Union Home Secretary and Union Defense Secretary are to be treated on par with Union Cabinet Secretary in terms of their public importance, then I would appeal for the intervention of the Supreme Court of India to declare that these posts can also be filled up only by going through a Constitutional Committee headed by the Vigilance Commissioner as has already been done in the case of appointment of Director of the CBI. I have one more suggestion to make. There should be an Act of Parliament to prevent politicians from interfering in the transfers and postings of senior bureaucrats from the level of Joint Secretary and above. This Act must ensure that every posting must have a minimum tenure of two or three years; it does not matter which, though three years is better. With statutory backing, three years should be enough to do justice to any job. If the public servant is shifted before his tenure is complete, the reasons should be recorded in writing and these should be communicated to him. So, if necessary, he can go to the administrative tribunals and have the decisions overturned. But even if the Government feels that the reasons for his transfer cannot be given in the larger public interest, these should be so told to the officer being transferred out. What is justice? Socrates asked that question at the beginning of Plato’s Republic, and we have all been asking ever since. It was, perhaps, the first great philosophical question, and it is still the most important and unavoidable philosophical question, embracing as it does not only those essential questions about what we deserve in life and some disturbing questions about how we should punish those who hurt us but also all of those basic questions about the good life – what it is, how to find it, how to live it. Moral of the story: You have to be singularly unscrupulous in order to be magnificently successful (Not only for the post of Union Home/Defense/Cabinet Secretary) V.Sundaram, IAS
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