Between the Devil and the Deep Sea

I have made a mention elsewhere (in the piece headed “government official or servant of the public”?) about the safeguards available at several levels in our system to encourage civil servants to stand up to their rights when the political masters suggest the wrong path.

In Andhra Pradesh, the Secretariat Business Rules (BRs) which have the force of the law, as well as article 311 of the Constitution of India provide, in more than adequate measure, protection to civil servants when they incur the wrath of those in whose hands it is to reward or punish them.

The BRs also offer methods by which such unwarranted interference with the attempt to do what is right can be dealt with Tricky situations can, however, arise which are not as straightforward as those described earlier. Fortunately the system taken as a whole has ample safeguards to deal with almost any conceivable situation, when civil servant and political master cross swords.

1989-90. I was Secretary Food and Agriculture, Government of Andhra Pradesh. That department has since been split into four, each headed now by a full-fledged Secretary. The range of subjects I was dealing with extended across the departments of agriculture, cooperation, agriculture marketing, horticulture, fisheries, animal husbandry and dairying, and sericulture.

My hands indeed were full. And, as is normally the case in many state governments, there was an independent cabinet minister for everyone of the subjects and a minister of state in charge of the subject of dairying.

My natural interest in the whole array of subjects I was dealing with lay on the developmental side. Regulatory work, however, was substantial and kept me fully occupied most of the time – such as transfers and postings, promotions, court cases, assembly questions, preparation for servicing the demands form constitutional bodies such as the Lok Ayukta, Public Accounts Committee, Estimates Committee etc. and attending to litigation involving the government in courts of law. Hectic though life was I can hardly remember any other assignment I enjoyed as much.

A matter relating to the agricultural marketing department had come up for consideration of the government. Two courses of action were presented by the Commissioner Marketing, the head of the Agriculture Marketing department.

After detailed analysis I had concluded that one of the alternatives was the just and fair route to take, and the other fraught with potential for attracting criticism as being discriminatory. Accordingly I submitted the case to the minister, duly recommending the alternative I preferred together with full justification therefor.

Sadly the minister was not merely on the take but quite brazenly so. He chose the second alternative; perhaps he had been got at by the party concerned. While I was debating in my mind about the manner in which to tackle the impasse, a notice was received from the High Court.

One of the parties (in whose favour the decision would have been taken had my recommendation carried the day) had approached the High Court. The court desired that the government decide the matter and apprise of the result.

The stand taken by the minister was, as I have mentioned, not quite what I had recommended. Still, still the minister wanted done was neither illegal, immoral, nor contrary to the stated policy of the government. Had that been the case,

I could have taken refuge in the provisions of the BRs which provided for reconsideration and review. I therefore left the matter there, but not without making one more attempt – albeit unsuccessful - to convince the minister that what he was doing would not stand up to external scrutiny by, for instance, a court of law.

Government orders were issued in pursuance to the decision of the minister. They were promptly challenged again in the High Court. The arrangement in the Andhra Pradesh Secretariat at that time was that any affidavit to be filed in defence of a government decision would be seen and approved by the secretary concerned (not by the minister, as the secretary was the respondent impleaded in the proceedings in the court).

In the instant case the question was whether the decision was to be defended by the department, although, as a matter of fact, its advice against it had been overruled. This is where the mischief of the system comes into play. What had to be justified in the court of law was the decision of the government as an entity).

The fact that the minister differed with the recommendation made to him was a purely internal issue. The decision of the government had been called into question. It was that decision that had to be defended now.

Needless to say, the attempt made to draft a counter affidavit, to meet the grounds on which the government order had been assailed, proved to be a complicated task. After all, whatever allegations the petitioner was making were precisely those against which the minister had been forewarned. I could, in fact, hardly have agreed with the petitioner more!

Despite the most sincere and impartial effort we made to justify the decision of the minister, the High Court easily saw through the shabby cover up being attempted by the department. In fact, at one point of time, the judge (who, incidentally, had been a junior advocate when my father was on the bench of the same High Court, and knew me well), apparently remarked that something was amiss and the court intended “to get to the bottom” of the issue.

Government files generally comprise two parts. One is the “current file” in which are placed the currents or papers relating to the correspondence on the subject. The other is the “note file” in which notings made by the various functionaries concerned, including the recommendations and the final decision, are available.

Except in rare cases, and even then only when specifically ordered to do so, note files - in which the discussion takes place within the four walls of the Secretariat including inter - departmental consultation, the advice tendered by officials and the orders of the minister thereupon, – are not produced in courts of law is a matter of course.

Finally the judge who had all along suspected precisely what had happened, called for the note file. One look at the noting was enough for him understand the situation. The court found in favour of the petitioner and set aside the order of the government.

Although it went against my grain I had performed my duty sincerely. Justice had prevailed, thanks to the doctrine of separation of powers and the system of checks and balances, which had kicked in to save the day.

I also recall a similar case in which the court had issued a direction of government and, upon being moved again, ordered implementation of its earlier direction within a specific time. I had resubmitted the case to the then minister who had been resisting implementation of the direction given earlier. He had kept the case with him and the deadline prescribed by the court expired.

The court then proceeded to order the issue of a notice for contempt. It was hardly proper for me to explain the actual position to the court. On the other hand it was I who would have been hauled up for contempt, and possibly been jailed, for not implementing the court’s orders.

Once again the court demanded production of the note file and, upon understanding the stalemate, issued a notice of contempt to the minister in turn. Unwilling to face the dire consequences in store for him the minister backed out and the matter was settled.

The point I am trying to make is that our system has many inbuilt safeguards and there is a really little to be said in defence of those who cite political interference as the cause for their apparent helplessness.

By: Dr MOHAN KANDA