Public Employment and Service Law
Abstract and Keywords
This chapter examines relevant provisions of the Indian Constitution with respect to public employment and service law. In particular, it considers the Indian Constitution’s regulation of civil servants and the constitutional controversies surrounding the often-competing ideals of bureaucratic independence and bureaucratic responsiveness. After providing a historical overview of the Indian bureaucratic structure, the chapter turns to the debates in the Indian Constituent Assembly over the place for an independent civil service in a modern, democratic nation such as India. It then considers the constitutional status of the civil service, paying special attention to provisions relating to terms of service and constitutional protections for civil servants. It also explores the question of administrative reforms and their implications for the civil service in India.
Keywords: administrative reforms, bureaucratic independence, bureaucratic responsiveness, civil servants, civil service, Indian Civil Services, Indian Constituent Assembly, Indian Constitution, public employment law, public service law
*It is standard practice for constitutions to regulate politics. A striking feature of the Indian Constitution is its extensive set of provisions on the bureaucracy. Part XIV of the Constitution focuses on public services, covering matters ranging from the recruitment of public servants to the operation of public service commissions. The structure of allegiance between the political executive and the policy executive is a delicate one, and maintaining it is a major task, particularly in democracies like India that are prone to political volatility.1 The current model of government services is strongly rooted in the Indian Civil Service (ICS), a colonial creation that was the backbone of British rule in India, and there remains a high degree of continuity in the nature and functions of the civil services under the Raj and independent India. This chapter examines how the Indian Constitution regulates civil servants. In doing so, it explores the ways in which the often-competing ideals of bureaucratic independence and bureaucratic responsiveness find expression in constitutional controversies.
II. The Historical Legacy
1. Colonial India
In order to understand ‘the puzzle of ICS continuity’,2 a closer look at its evolution under colonial rule is required. The ICS was formally established by the Government of India (p. 1002) Act 1858 (‘1858 Act’), and later underwent significant transformations with the subsequent enactments of the Government of India Act 1919 (‘1919 Act’) and the Government of India Act 1935 (‘1935 Act’). Both the 1919 Act and the 1935 Act laid the foundation for the present constitutional provisions that govern the civil services in India.
Originally, governance under the Raj was centralised in the hands of the Secretary of State, who enjoyed full authority over the services.3 By the 1919 Act, the British introduced dyarchy, a system of governance whereby the executive branch of the government was divided into authoritarian and popularly responsible sections. The 1919 Act ultimately paved the way for the 1935 Act, which introduced a federal form of government, with a certain degree of autonomy granted to the provinces. The enactment of the 1919 and 1935 Acts was to primarily secure self-governance and a greater Indianisation of the services, including structural changes to the recruitment process.4
With the introduction of federalism by the 1935 Act, the question of whether the administrative system (which so far had been integrated from the top to the village level) needed to be bifurcated had to be considered.5 The Maxwell Committee on Organization and Procedure (1937) discussed the issue, and firmly recommended that status quo be retained, for two primary reasons. First, according to the Committee, in the event of a permanent civil service of the Union government being instituted, the officers recruited therein would most likely not directly work in the provinces. It was considered essential that the civil servants at the disposal of the Union government, whose primary duty would be policy formulation, possess the direct experience of working in the provinces, without which the context of the many issues the Union government remained concerned with would not be adequately understood. Secondly, and crucially, a rotating civil service would supply an essential link between the Union government and the provincial governments.6
The most significant change brought about by the 1919 Act was the devolution of administration of certain subjects upon the provinces. For the first time, the provincial governments were provided with an independent sphere of administration in subjects such as education, agriculture, medical, health, local government, etc. Significantly, the transferred subjects to the provinces came directly under the elected representatives of the Indian people.7 With the increasing transfer of power to the provincial governments, the power of recruitment and control of the Secretary of State over the transferred subjects was discontinued. Gradually, the Secretary of State came to retain control of only the ICS, Indian Police Service, and a few other ‘All-India Services’, with the rest of the services being converted into provincial services.
With the enactment of the 1935 Act, this position was formalised. The Act clearly laid down that the power to make appointments vested with the Governor-General in respect (p. 1003) of the central services, and with the Governors in respect of the provincial services. The provincial legislatures were, however, enabled to pass legislation to regulate the conditions of service of provincial civil servants.8
Both the Acts diluted the autonomy of the ICS and other services, since officials now had to work in close association with, and were accountable to, the elected ministers.9 Bureaucrats were fearful that the elected Congress ministers would exercise this power to gain retribution, since the ICS had played an antagonistic role throughout the national movement.10 It was for this reason that the tenure of civil servants was secured, and the common law doctrine of pleasure was statutorily introduced in India in 1919, by which the appointment of members of the civil services was made at the pleasure of the Crown, vide Section 96B. The same was retained in the 1935 Act, and eventually incorporated in the Constitution.
The 1919 Act provided that no member of the civil services could be dismissed by any authority subordinate to the authority by which he was appointed.11 Since appointments to the civil services were made by the Secretary of State anyway, this provision ensured that the elected representatives could not dismiss the civil servants. These features were retained in the 1935 Act. The 1935 Act also provided unprecedented constitutional protections to civil servants (since the ICS feared that the Indian legislatures would not grant the services adequate protection), as can be seen in section 52(1), whereby the Viceroy further reserved for himself the protection of rights and legitimate interests of civil servants under his ‘special responsibilities’ (which included important powers such as protection of minorities and maintenance of peace and tranquility).12
As mentioned earlier, the 1919 Act delegated the power to regulate conditions of service in respect of the provinces to the Governor or local legislatures. However, it is interesting to note that the power to make ‘Fundamental Rules’, which governed major rules with respect to conditions of service, vested solely with the Secretary of State. Thus, while the ministers had greater control over the government services, the ultimate authority was concentrated in the hands of the British executive. Further, the exact scope of the power delegated to the legislatures was clearly laid out in the Report of the Joint Select Committee of 1934 as being, mainly, the power of granting legal sanction to the status and rights of the services.13
The 1935 Act, by virtue of section 240, further strengthened the protections granted to the civil servants. Civil servants were given the right to appeal any imposition of punishment upon them directly to the Governor or Viceroy, by virtue of this provision, which laid down the procedure to be followed to dismiss or reduce the rank of civil servants, which included a reasonable opportunity of being heard.14 Finally, the 1919 Act established a Federal Public Service Commission to discharge functions relating to the recruitment and control of the public services, free from political interference.15 The 1935 Act further established the Provincial Public Service Commissions in all the provinces.16 Ironically, while (p. 1004) these protections were motivated entirely by political considerations, they simultaneously symbolise the separation of the ‘apolitical’ executive from the ‘political’ legislature.
2. The Constituent Assembly Debates
The Constituent Assembly extensively debated whether or not there was place for the public services—widely seen as a symbol of colonial oppression—in a modern, democratic nation. The Congress had earlier mounted an unrelenting opposition to the services and asserted the need for their dismemberment in the new nation. However, the pressing need for security and stability, especially in light of the violence in Punjab, Hyderabad, and Kashmir, during and after Partition, highlighted not only the need for stability and continuity over drastic administrative overhauls, but also the vital role played by the services in nation building.17 Further, the political neutrality of the services, and their disciplined and unquestioned implementation of the policies formulated by the government, was advocated (primarily by Sardar Patel) as being indispensable to the newly formed nation-state.18 As Patel put it: ‘Learn to stand upon your pledged word, and, also, as a man of experience I tell you, do not quarrel with the instruments with which you want to work.’19
Patel defended the services for their neutrality, or subordination, to the prevailing political will. The services were oppressive under colonial rule because they were pursuing the policies of a colonial government. The same subordination to the prevailing political will would make them invaluable in the new democratic framework. The newly formed social welfare state, which had set for itself an ambitious agenda for development, was rife with communal strife and insurgency. The management of both urgently required a competent, efficient, and diligent task force, which was found in the services already created by the British.20 Therefore, the assembly was guided by a need to create a service under the control of and accountable to the legislature, but also had to ensure that it remained free from political interference.
Patel was of the view that to leave the regulation of the conditions of service to Central and provincial legislatures would be a grave mistake, for it would increase the chance of political interference with the services, thereby compromising on their efficiency.21 Ambedkar, however, was of the opinion that only minimum safeguards were necessary to be granted a constitutional status; and the rules on recruitment and conditions of service could be entrusted to the wisdom of the legislatures. Even the authority of the executive over the services was vested with the legislature, in keeping with democratic values.22 (p. 1005)
However, after much intensive debate, the safeguards contained in the 1935 Act were largely retained. A consensus was reached with regard to the establishment of an All-India Service, controlled by the Union government; with special protection (constitutional in character) afforded to these services in order to keep them independent from any kind of political interference. The proposed articles, later numbered Articles 308–314 in the Constitution, laid down that civil servants held office at the pleasure of the President and the Governor (depending on whether they were members of the All-India Services or the State Services), secured the tenure of civil servants, but clarified that they had no right to hold office, and also that civil servants were not the employees of a particular minister.23
The safeguards against arbitrary political dismissals and punitive action contained in the 1935 Act were also retained. This meant that no person could be removed or reduced in rank by an authority below the rank that appointed him. Even this action could be taken only after affording a reasonable opportunity of showing cause, unless it was not practicable to do so, or the removal or reduction in rank was in pursuance of conviction on a criminal charge.24 As an additional safeguard, the assembly provided that in the interest of administrative convenience, until the legislatures make the necessary rules for recruitment and conditions of service, the President and the Governors were empowered to do so.25
The assembly also debated whether new All-India Services should be established by the President, the Parliament as a whole, or the Council of States (since one of the essential roles of such services was to serve as a ‘liaison between the provinces and the central government’). Thus, it was found imperative to acquire the consent of the Council of States.26 Patel pointed out that the representatives of the provinces in the assembly did not have any objection to the retention of All-India Services, simultaneous with the provincial and federal services.27 In this manner, the establishment of All-India Services was secured, despite being incongruous in a federal set-up. The All-India Services would have also included All-India Judicial Services,28 but the Forty-second Amendment clarified this nevertheless. So far, despite the recommendation of the Supreme Court,29 All-India Judicial Services have not been established.
As a result, by the end of the Constitution-drafting process, India had a civil service that was in principle accountable to the legislature, but over which the executive continued to exercise intense control through its rule-making powers. Consequently, there was scant change in the actual structure and functioning of the services, which preserved their colonial orientation and demonstrated a high degree of colonial continuity. While Burra argues that the claim of colonial continuity per se is insufficient to discredit public services,30 Potter31 and several other authors32 express concern with the services on three grounds. (p. 1006)
The first critique is from the vantage point of democratic theory. While earlier imagined to be ‘accountable to themselves’,33 democracy brought the services under the direct control and accountability of elected representatives. According to Potter, the two traditions—of an older colonial administration and of newly elected democratic representatives—sat at odds with each other. The ministers now had a far bigger role to play in policymaking, which the administrators viewed as excessive political intervention in their functioning.34 The protection of their personal and professional interests under these changed circumstances required political manoeuvrability, to which bureaucrats were traditionally unaccustomed. This caused a change in the fibre of the services. Though trained in the ethic of political neutrality, ‘in reality the political and practical considerations are often inseparable’.35 This paved the way for excessive politicisation of the services post-Independence, attaining its peak during the Emergency, and subsisting since then.36 The constitutional safeguards preventing arbitrary dismissals and punishments by the ministers were sidestepped through the loophole of discretionary transfers, thereby seriously hampering efforts to ensure accountability.37
The second criticism focuses on federalism, and pertains specifically to All-India Services. The original vision was to depute servicemen to State cadres, from which the Union government could pick individuals for short durations for the All-India Services, after which they returned to their State cadres.38 Potter,39 and even the First Administrative Reforms Commission,40 called the coexistence of All-India Services with a federal structure a remarkable feat unto itself. Notwithstanding the fact that the Council of States had no objection to the retention of an All-India Services during the Constituent Assembly debates, post-Independence, such an All-India administrative arrangement was bound to face some hostility from the elected leaders in the various States. In effect, the key posts at the State level were occupied by members of the All-India Services, who were recruited by the Centre. This constrains the discretion for the States themselves to appoint their personnel for implementation of policies. Further, in view of the rules of appointment made by the Centre, purportedly ‘in consultation with the States’, for the senior posts in the States, the choice is limited only to members of the All-India Services. Instead of being services that provided a crucial link between the Centre and the States, they have degenerated into entities controlled by the ruling party at the Centre, to constrain governments of opposition parties in the States.41
The third concern with India’s civil service has been its inability to meet the challenges of a welfare state. The colonial functions of administration were law and order, administration of justice, and revenue collection, otherwise pursuing a laissez-faire economic policy, (p. 1007) which furthered the interests of European industrialists.42 Now, India pursues an agenda of all-round development, extending beyond economic activities alone.43 Since the 1950s, a number of specialised welfare-based ministries and departments have been set up.44 The expansion of the agenda into political, social, and economic reforms calls for increased expertise in policy formulation and implementation, which the ‘amateur generalist’ is unable to deliver upon. The reservation of top posts in the government for IAS officials further prevents the entry of technocrats and experts.45 The problem is further exacerbated by the system of transfers and short tenures at posts.46 No other industrialised nation of this size is run by a panel of generalists. Even the UK now permits lateral hires in ministries on a contractual basis. Japanese bureaucrats spend their entire careers in the same ministry, thereby gaining expertise on the job.47 As we shall see, these three concerns often find articulation in constitutional controversies relating to the civil services.
III. The Constitutional Position
Service law in India is fairly complex, involving, inter alia, a multitude of statutes, rules, directions, practices, and judicial decisions, not to mention principles of administrative law.48 Here we focus on the constitutional status of the civil service, through provisions that are split into those dealing with the Services (Articles 308–314) and those dealing with the Public Service Commissions (Articles 315–323).
1. The Terms of Service
Article 309 lays down the power of the appropriate legislature to regulate the recruitment, and conditions of service of persons appointed to public services as well as posts in connection with the affairs of the Union or of any State. The Constituent Assembly recognised that it would take time for the various legislatures to legislate on the above matters, which included provisions with regard to qualifications for appointment/removal, promotion, and tenure, and that it was necessary for the sake of administrative convenience that rules governing the same be put in place expeditiously. This prompted the insertion of a proviso to Article 309, under which the executive was empowered to make rules regarding recruitment and conditions of service of civil servants, until the passing of laws by the appropriate legislature. However, despite being included predominantly as an interim measure, this (p. 1008) proviso proved to be significant, as the power of the executive has frequently been invoked, giving rise to a situation where the civil service in India remains governed by the rules framed by the President or various Governors of the States.
The law as laid down by the Supreme Court, expanding the scope of protections afforded to civil servants, clearly holds that rules cannot be made operational retrospectively, if they impair a vested right. The question as to whether or not rules framed under Article 309 can take effect retrospectively has been the subject of much judicial controversy. Prior to 1969, there was disagreement among High Courts regarding the validity of retrospective applicability of such rules.49 However, in BS Vadera v Union of India,50 the Supreme Court clarified matters, holding that such rules can be given retrospective effect, as the power of the President/Governor under the proviso to Article 309 is coextensive with that of the appropriate legislature. Significantly, this rule was subsequently qualified so that retrospective rules would only stand if the date from which they were made to operate was shown to bear a reasonable nexus with the provisions contained in the rules.51 Thereafter, in K Narayanan v State of Karnataka,52 the Supreme Court widened the qualification on the rule-making power of the executive by holding that no rule can be made to operate retrospectively if it is unjust and unfair, apart from the absence of nexus. Thus, a retrospective amendment was held not to be valid if it affects or impairs a vested right.53
The phrase ‘subject to the provisions of the Constitution’ in Article 309 imposes a significant embargo on the power conferred upon the legislature and executive. The rules framed under Article 309 must be reasonable, fair, and not grossly unjust (as explained in the case of Baleshwar Dass v State of Uttar Pradesh),54 in order to meet the requirements of equality and non-arbitrariness, guaranteed by Articles 14, 15, and 16 of the Constitution. The Supreme Court has held that:
[E]ven though the President, in exercise of his power under the proviso to Article 309, can make rules which may have prospective or retrospective operation, the said rules may be open to challenge on the ground of violation of the provisions of the Constitution, including the Fundamental Rights contained in Part III of the Constitution.55
In addition to their rule-making power, Articles 53, 73, 154, and 162 confer ‘executive power’ upon the Union and States, vide which it is competent for the President or the Governor to issue administrative rules, circulars, or instructions.56 The established legal position is that such administrative instructions may be made to govern service conditions in cases where no rules in that regard have been framed under Article 309,57 or where the rules so framed are silent on that aspect.58 These instructions aim to serve the purpose of supplementing the rules and filling the gaps in administration that may remain, in a manner not inconsistent with the rules already framed. Thus, if there is a conflict between the executive instructions and the rules made under Article 309, the rules will prevail; and if (p. 1009) there is a conflict between the rules framed under Article 309 and the statute, the latter will prevail.59
An important concept relating to the terms of public service is the doctrine of pleasure. The origins of this doctrine lie in the common law, with the Crown being seen as incapable of fettering its future executive action by entering into a contract in matters that concern the welfare of the State.60 On grounds of public policy, the fact that a civil servant is dismissible at pleasure is considered an implied term in their employment under the Crown.61 In the UK, where Parliament is supreme, the doctrine of pleasure can be overridden under a statute enacted by Parliament. This common law notion of the doctrine had initially been brought to India, where under Section 96B(1) of the 1919 Act, the power was given to the Secretary of State to make rules curtailing its effect. However, the doctrine was diluted under the Constitution so that it would apply ‘except as expressly provided by this Constitution’ under Article 310(1). Accordingly, the pleasure of the President or the Governor can be fettered by constitutional provisions, though not by ordinary legislation.62
The Supreme Court has recognised that society has an interest in the enforcement of the duties fixed by public law. Therefore, while the origin of government service is contractual, once a Government servant is ‘appointed to his post or office … [he] acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government’.63 The Supreme Court, while determining the status of employment under the Government, has held that ‘status’ is ‘the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties’.64 Accordingly, while no restrictions can be placed on the doctrine of pleasure except for those under the Constitution, the powers conferred upon the legislature and the executive by Article 309 also cannot be fettered by any agreement.65 The Supreme Court has repeatedly justified the doctrine of pleasure as a matter of public policy, rejecting the contention that it was a special prerogative of the Crown operating as an ‘anachronism’ in a ‘democratic, socialist age …’66 Pertinently, the Court also observed that in consideration of the vital interest of the public in the ‘efficiency and integrity’ of the civil services, it is paramount that members of the services, both at the higher and lower levels, ‘bring to the discharge of their duties a … collective sense of responsibility’.67
Of the provisions of the Constitution that limit the applicability of the doctrine of pleasure, Article 311 is the most severe. This provision safeguards the interests of civil servants in certain cases of punishment being imposed upon them. Article 311 has been dealt with in detail in the next section. Articles 124, 148, 217, 218, and 324, specifically provide that Supreme Court judges, the Comptroller and Auditor General, High Court judges and the Chief Election Commissioner shall not be removed from their offices except in the manner laid down in those Articles. The Supreme Court also explained the balance between Articles 309, 310, and 311 in the following terms:
[F]or a government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution, this is provided for by the Acts (p. 1010) and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and the protection afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good.68
The final point to note is that the power conferred upon the President/Governor under Article 310(1) is essentially an executive power, and under Articles 53(1) and 154(1) the executive power of the Union or State may be exercised by the President/Governor, either directly or through officers subordinate to him. As explained by the Supreme Court in Samsher Singh v State of Punjab, ‘wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function …’ it is not his ‘personal satisfaction’ but ‘the satisfaction of the President or Governor in the constitutional sense …’69 Thus, an official authorised under the Rules of Business can take the desired action in the name of the President or the Governor, as the case may be.
2. Constitutional Protections
Article 311 is the primary safeguard for persons holding civil posts against arbitrary punishments of a serious nature. Clause (1) of the Article states that ‘no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed’. This guarantee provides security to civil servants, as they may not have much faith in the judgment of a subordinate authority.70 The constitutional protection guaranteed can only be taken away by a constitutional amendment, and any legislation that seeks to do this even indirectly is void.71 This protection does not, however, apply to orders imposing a reduction in rank.72 Further, Article 311 does not apply to cases where minor punishments are imposed, such as censure, withholding of promotion, or withholding of increments of pay.
The protections available to a civil servant under Article 311(2), which grants a right of hearing, before being dismissed, removed, or reduced in rank, are linked to the nature of their employment under the government; so that persons holding permanent or quasi-permanent posts are at a comparative advantage to those holding a temporary post or those appointed on probation. Generally, when a person is ‘appointed substantively to a permanent post in government service [he] normally acquires a right to hold the post until he attains the age of superannuation’.73 Officers serving in quasi-permanent posts are similarly placed.74 Whereas in the case of a temporary post, the Supreme Court has significantly departed from the position held with respect to permanent and quasi-permanent posts, holding that: (p. 1011)
A temporary government servant has no right to hold his post, his services are liable to be terminated by giving him one month’s notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants.75
Further, it has also been held that a simple order of termination of a temporary government servant that does not cast any ‘stigma’ or ‘[disclose] any penal consequences’ is not covered under the protections granted by Article 311(2).76 The Supreme Court has held that the overriding test to be applied for the protection under Article 311 is to see whether the misconduct is a mere motive or is the very foundation of the order against the aggrieved officer.77 The protection of Article 311(2) has been extended by the Supreme Court even to newly recruited civil servants in their initial period of ‘probation’ by applying the ‘motive or foundation’ test.78
The only exceptions to ‘full protection’ are embodied in the second proviso to Article 311(2), which reads thus:
Provided further that this clause shall not apply—
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
The satisfaction of the President/Governor as required under clause (c) of the second proviso to Article 311(2) has been described as a subjective satisfaction by the Supreme Court in Tulsiram Patel. The Court observed that ‘expediency involves matters of policy. Satisfaction may be arrived at as a result of secret information received by the Government about the brewing danger to the security of the State and like matters.’79
The above examples illustrate that the judicial trend has not only been to widen the nature of protections available to government servants under Article 311(2), but also to expand the range of officers to whom such protection would be available. This approach of the judiciary has been severely criticised for ensuring to civil servants a security of tenure that is so indefeasible that it hampers any incentive to perform. This, among other reasons, has caused those occupying civil posts to become inefficient in the discharge of their duties and indifferent to the needs and interests of the general public. Given the range of functions of the government, this excess security is unbecoming of a service that is required to be dynamic, innovative, and to act quickly to solve problems. It has even enabled polit- icians to blame the stagnancy of a particular department/ministry, on its inability to remove incompetent officers. The one weapon that exists in the hands of the political class is the power to transfer. Transfer is considered an incident of service, and therefore may be (p. 1012) exercised unless expressly barred.80 Given that the rules and regulations across the services on transfer are fairly scant, a competent civil servant whose grievance is genuine does not have much protection against a transfer order.
3. Public Service Commissions
The Public Service Commissions (PSCs), which operate as autonomous bodies, discharge important constitutional functions. As quasi-advisory bodies, they are responsible for recruitment into the civil services, and for matters relating to promotions, transfers, and other conditions of service of civil servants. They also advise the President/Governor on any disciplinary action against civil servants. The primary objective of establishing PSCs was to insulate the recruitment of civil servants from political intervention. While the attempts under the 1919 Act to kick-start the federal PSC were tepid, the 1935 Act contained detailed provisions pertaining to the composition and powers of the PSC, while simultaneously establishing provincial PSCs. The current constitutional provisions—Articles 315–323—closely resemble the 1935 Act.
The powers of PSCs in India are wider than the corresponding body in the UK, which is responsible only for recruitment.81 The Constituent Assembly, being mindful of the significance of the functions of PSCs, considered and rejected a proposal to make PSCs a creature of statute and instead conferred a constitutional status on them so that they are not abolished through mere legislation.82 As constitutional bodies, their discharge of functions warrants a higher degree of independence, which the constitutional provisions seek to secure at every step.83 Articles 316, 317, and 318, whereby it is the President or the Governor that appoints, removes, and decides the conditions of service of the members of the PSC; and Articles 319 and 322, whereby members are prohibited from undertaking any public employment after the conclusion of their tenure, except, conditionally, with other PSCs, clearly demonstrate the constitutional intent to keep PSCs immune from political influence.
With regard to PSC appointments, a high premium is placed on integrity. It is important for functionaries to be above not only partisan influences, but also personal biases, and to shun nepotism.84 Section 196(2) of the South African Constitution of 1996 is a useful comparative example in this regard—it specifically provides that ‘The Commission is independent and must be impartial, and must exercise its powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of effective and efficient public administration …’ While Indian courts were once reluctant to interfere in the process of appointments in order to ensure that the personal judgement of the President/Governor is not supplanted by judicial discretion, in recent years they have been increasingly directing the State to frame guidelines on the qualifications and process of appointment of members.85 This is chiefly due to the rampant meddling by governments in the process of appointments, packing PSCs and distorting recruitment to the civil services. (p. 1013)
Further, the conduct of elected officials and ministers in influencing the decisions of PSCs has also been an area of concern. They have been found to send secret circulars to PSC members to influence their decisions.86 This has led the Supreme Court itself to observe that:
There is no doubt that the … Public Service Commission has clearly fallen from grace and the exalted status it enjoys under the Constitution. That one scam after another should erupt in respect of such a constitutional body is a very disturbing aspect. If constitutional institutions fail in their duties or stray from the straight and narrow path, it would be a great blow to democracy, a system of governance that we have given unto ourselves and the great vision our Constitution-framers had about the future of this country.87
One solution to this might lie in the Constitution itself prescribing qualifications for members and chairpersons of PSCs.
IV. Conclusion: The Challenge of Administrative Reforms
Independence was meant to transform the relationship between the Indian State and people, between the Union and provinces, and between the legislature and executive. However, the structure of the civil services was largely retained. While early relations between the political class and civil servants were initially characterised by mutual respect and understanding of each other’s roles,88 friction soon developed. The mettle of the ‘steel frame’ of India was tested in the Emergency years (1975–77), when the executive was made to actively participate in the quashing of civil liberties of the public at large. To avoid the wrath of the incumbent party, many bureaucrats kept ethical considerations aside in enforcing the Maintenance of Internal Security Act 1971. Those who refused to participate in the political drama of the time were compulsorily retired, resulting in 25,962 premature retirements.89
This period is seen as the darkest in India’s democratic history. While analysing the relationship between ministers and civil servants, the Shah commission,90 noted that it was:
[I]mperative to ensure that the officials at the decision making levels are protected and immunized from threats or pressures so that they can function in a manner in which they are governed by one single consideration: the promotion of public well-being and the upholding of the fundamentals of the Constitution and the rule of law.91
It was asserted that public servants must be politically neutral at all levels and at all times, and that the government must encourage its employees to function freely and fearlessly within the framework of established principles.92 According to the Second Administrative Reforms Committee set up in 2008, the onus to safeguard political neutrality and impartiality of civil servants lies equally with the political executive and the civil servants.93
With the Supreme Court broadening the protections available to civil servants under Article 311, the use of transfers as a mode of punishment became rampant. To address this, the Hota Committee, set up in 2004, recommended that before any transfer order is passed, a departmental inquiry should be conducted by a designated officer, who submits his report to the concerned State Services Board, which would then provide its views to the Chief Minister. Significantly, the Hota Committee also recommended that a Central Civil Service Act should be enacted, under which a Central Service Board and separate State Service Boards should be set up.
The National Police Commission, in its reports submitted between 1979 and 1981, underscored the concurrent need for professional independence amongst the police in India, as well as methods to ensure that the government could oversee police performance and ensure its conformity with the law. In Prakash Singh v Union of India,94 the Supreme Court observed that despite detailed recommendations being made by the National Police Commission and various other commissions on the need for police reforms in India, no action had been taken by the government. Accordingly, the Supreme Court issued extensive directions to both the Central and State Governments calling for, inter alia, the setting up of State Security Commissions to prevent unwarranted influence from the State Governments, fixation of minimum tenure for senior officers, a separation of investigating police from the law and order police, and the establishment of Police Complaints Authorities starting from the district level to look into complaints against police officers. Unfortunately, the implementation of these directions has been far from satisfactory, and the matter is still engaging the attention of the Court.
The question of administrative reforms recently came before the Supreme Court in TSR Subramanian v Union of India.95 Performing an extensive survey of various unimplemented reports on civil service reform, the Court admitted a petition under Article 32 of the Constitution. It expressed concern over the transfer of civil servants and instability of tenure, the practice of oral instructions, and instances of political interference, and directed the State to establish Civil Service Boards. Rather than confronting the central democratic challenge to bureaucratic independence, the Court simply observed that:
Ministers are responsible to the people in a democracy because they are the elected representatives of Parliament as well as the State General Assembly. Civil servants have to be accountable of course to their political executive but they have to function under the Constitution, consequently they are also accountable to the people of this country.96
The implementation of the Court’s order and its impact on civil service reform remains to be seen. But the decision itself was subject to important criticisms—such as the Court’s distrust of democratic politics and belief in the superior integrity of the bureaucratic judicial (p. 1015) institutions, its scant reliance on legal provisions, and its improvised understanding of the challenges that confront the structure and operation of the civil service.97 Some of these criticisms have to do with the exercise of judicial power and the appropriate role of the Supreme Court. But others involve a much larger debate between two contrasting visions of the State: one which places its hope in the domain of politics, and the other which attempts at a technocratic insulation from democratic life. Within constitutional law, the tensions between these visions are most often seen in the context of judicial review. An important feature of the Indian constitutional experience has been the visibility of this contest within public employment and service law. With persistent concerns over both the inefficient, stifling character of India’s civil service and the widespread prevalence of political corruption, the contest between these two visions is unlikely to subside any time soon, and might well, as in the case of TSR Subramanian, be played out in the judicial arena. (p. 1016)
(*) The author gratefully acknowledges the invaluable assistance received by him from K Parameshwar, Mythili Vijay Kumar Thallam, Vikram Aditya Narayan, Radhika Chitkara, Kartik D Monga, and Mohammed Omer Farooq.
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