1.In the case of Vineet Narain vs. Union of India (AIR 1998 SC 889) the S.C. observed that Public Service is a trust and failure to discharge this trust is a breach of trust and should be punished severely. What have been the obstacles in this behalf?
2.Prem Shankar Jha, a keen observer of Indian economy points out how the bureaucracy itself has been an obstacle to economic development, as foreigners themselves point out.
3.Local industrialists find the administrative climate stifling. Comment with reference to the Nano project in W.Bengal and the problems facing the Infosys in Bangalore. Critics call Narendra Modi, praised by the Industrialists as ‘Feku’ Your comments.
4.Singapore, fund managers and corporate executives revealed that the main reason why they were not prepared to mesh India into their global production plans was that even after they had obtained all the clearances from the Central and State Governments, they remained at the mercy of local bureaucrats and politicians. Any one of them could stop their operations, and threatened to do so if they were not given an adequate ‘inducement’. Industrialists , both foreign and local regard change of governments in India with nervousness. Do you agree?
5. Certain recommendations have been made to ensure Probity in Governance. One such is to eliminate Benami Transactions. Do you know what they are?
6. Probity requires ending Malfeasance, Misfeasance and Non Feasance. Do you understand these terms? No public servant can say “you may set aside an order on the ground of mala fide but you cannot hold me personally liable”. No public servant can arrogate to himself the power to act in a manner which is arbitrary. Any comments? To guide you: the SC held: The Supreme Court directed one Minister to pay a sum of Rs. Fifty lakhs by way of exemplary damages to the government. Likewise, the other Minister was asked to pay a sum of Rs. Sixty lakhs by way of exemplary damages. The Court, in both the cases, concluded that the actions of the Ministers amounted to a misfeasance of public property.
The Supreme Court relied upon the well stated position in Ramana Deyaram Shettey and Lucknow Development Authority to hold that in the matter of grant of largesse, the Government and its officials were expected to act in a fair, just and transparent manner and that if they acted in a malicious and deliberate manner causing injury to the citizens of the State, they could be held liable for damages. Rookes v. Barnard was relied upon to hold that exemplary damages could be awarded for “oppressive, arbitrary and unconstitutional action by the servants of the government.”.
These decisions, certainly, were welcome and enhanced the image of the Supreme Court in the public eye. The decisions established that courts were concerned with public servants and ministers could not escape consequences of their mala fide acts and orders. The decisions, in substance, demonstrated the adage that “howsoever high you may be, the law is above you”. The decisions reinforced the rule of law and not that of men and further that public servants must develop a respect for public property and, above all, that public office is a trust and not a charter of corruption, nepotism and personal gain. Fine. But what do we do when the fence iiself mows down the crop. Comment on the role of a few judges, lawyers, court procedures and activities like these against the background of the praise worthy struggle by the Judiciary to ensure probity in governance?
7.A comprehensive law needs to be enacted to provide that where public servants cause loss to the State by their mala fide actions or omissions of a palpable character to be defined, they should be made liable to make good the loss caused by him to the State and, in addition, would be open to the imposition of exemplary damages. The principles must include cases of misuse of official position and acts outside authority. The expression ‘public servant’ must be extended to ‘all public servants as defined in the Indian Penal Code and in the Prevention of Corruption Act, 1988, which expression has been interpreted to include Members of Parliament, Members of State Legislatures and Councils and Ministers. Your comments.
To be continued in the third blog on this topic. Please quote the point number on which you are making a comment.
1. People invest tremendous amount of trust on Public Officials who are their only saviours from the corrupt elected representatives. People hope to realise their rights and their basic needs through these officials who interact with them on a regular basis. People have lost trust on politicians who meet them once in 5 years and cant afford to loose trust on officials. Hence an onus lies on the officials to keep up to the promise they make when they join the service i.e to serve, serve and serve the public as if they are your mother, father and brother.
2. Economic growth is monetary growth of the country, Economic development is improvement in human development factors. In both these cases bureaucracy has major role to play. But unfortunately bureaucracy in India has been a stumbling block to realise this dream. Bureaucracy if performing efficiently is a boon to the nation otherwise a bane. The long and elaborate procedures required to establish a company and the inefficiency of the bureaucracy has hurt investors sentiment. This has been the economic condition of the country since independence. The British Raj mindset is still prevalent in the present bureaucracy.
1. The “breach of trust” as expounded by Supreme Court refers to the misuse and abuse of the taxpayers’ money and authority vested within them by the officials and the elected representatives who are expected to work towards the betterment and development of the society. Such criminals should be punished severely. But in implementing this judgement there have been several obstacles, namely: the cumbersome and slow progress of the judicial enquiries and hearings, the prior permissions needed from the governments before initiating action on the erring officials, incomplete powers given to lokayuktas and upalokayuktas and last but not the least to blame is the culture within the society which is fine with paying bribes barring a minority in exceptions.
2. Indian bureaucracy plays a central role in any project by the govt or otherwise, since they’re the implementing authorities of the government. They also play a central role in policy formulation and planning. With such a wide and critical role played by the bureaucracy, what is expected from them is the highest standards of behaviour and ethics. But there is an existence of ‘rent-seeking’ behaviour in the officials who seek a rent to do the work which is by law their duty. This coupled with the slow nature of the work culture of bureaucracy holds up the projects and plans indefinitely- sometimes for years together!
3. The administrative climate in the country is definitely stifling with the large number of permits needed from various authorities to open a new unit/factory. Eg: environment permit, labour permit, permits from district administration etc. while these permits are definitely important, what is important is streamlining the process through means like ‘single window clearance’ to prevent this curbing of economic growth.
The best example for the above mentioned problems faced by the corporations is the Tata Nano project in West Bengal where due to the inefficiency of the state government in speedy land acquisition with appropriate recompense to the locals led to land struggles which were further inflamed by the parties for political mileage. This finally led to the company moving out of West Bengal. Similar is the problems with regards infrastructure faced by infosys in Bangalore towards which the government seems to be lending a deaf ear.
4. Corporations from abroad hesitate to invest in India since there exists large-scale absence of probity in the governance of India. The local politicians and bureaucrats, hand-in-glove with each other, are perfectly capable of stalling any projects in their regions using weapons like protests and agitations and delays in handing over land with trumped up excuses. A delay of just a day would result In large losses to these corporations and they would be forced to cave-in to pay bribes in various forms to these criminals. The above stated issue should be coupled with the fact that there exists a certain lack of continuity in major policies when parties in power change. This is best seen in the recent example of the FDI controversy when the main opposition promised to repeal the policy if elected to power in the next parliament elections. Such statements would naturally enervate the corporations who would see India as an unknown quantity with unpredictable and hostile environment and would repel them away.
5. Benami transaction is said to have occurred when a person, in order to avoid tax or land ceiling laws or the attention of the authorities who could prosecute him for having disproportionate assets, depending on the case, procures property through a second person in who’s name the property shall be held but in practise will be utilised by the person who’s paying the money to buy the property. This is one method used by the corrupt individuals( be it the bureaucrats or the elected representatives) to circumvent the law against corruption and hoarding of land. Weeding out such transactions from the Indian economy is vital if probity in governance is to be established effectively in India.
6. Malfeasance is a wrongful act by a person in office which he ought not to do to ensure the dignity and integrity of his office.
Misfeasance is just a slight variation in malfeasance, in that it means, the person in office does an act which is legally right but ethically wrong. It is a misuse of his authority and powers.
Nonfeasance just means that the person in office fails to do his duty.
The ramifications of any decisions taken by the public authority is wide. He is thus expected to uphold the highest standards of ethics and integrity in taking any decisions and avoid any arbitrary decisions which would favour a few unfairly. Such an act by the official would leave him open to judicial proceedings against him and eventual penalisation.
The role bei played by the Juduciary in the resent scenario is certainly progressive and a welcome relief from the lax ethical standards exhibited by the elected representatives and the bureaucrats repeatedly. Many cases are now being accepted by the Supreme Court through Public Interest Litigations to ensure that the highest standards of administration and probity in governance is ensured. Having said that, we should also consider the few black sheep within the judiciary, who’s names come up from time to time, in allegations of being corrupt by taking bribes to give favourable verdicts to vested interests. The most notable example of this being the ‘cash-for-bail’ controversy in Karnataka. This throws up a disturbing idea of the guardians of the citizen’s rights and the constitution themselves succumbing to the lust for money. How to then ensure the ethical standards are maintained within the judiciary becomes a problem. “Who would guard the guardians?” There is an immediate need to implement the Judicial Accountability bill to ensure this is done effectively and efficiently without unnecessary and negative interference in the independent nature of the Judiciary as laid out by the constitution from the other organs of the State.
7. The public authorities by indulging in malfeasance, misfeasance and nonfeasance are definitely breaching the trust of the citizens who pay for the functioning of the government. Exemplary damages should be imposed on the persons convicted of the above crimes so as to deter such actions in future from other authorities.
The P.O.C. Act should be also extended to the elected representatives like the members of parliament and legislatures and panchayat institutions to ensure a probity in governance. These representatives are sanctioned vast amounts of funds through schemes like MPLADS and MLLADS. This to ensure efficiency in all the schemes and projects of the government, extension of prevention of corruption act to elected representatives becomes critical.
1. The breach of trust identified and highlighted by honourable Supreme Court in the case of Vineet Narain vs Union of India is the breach of trust public has on Public Service. Conceptually Public Service / Civil Service in India was established to be an permanent and apolitical entity in Governance. The trust of public may vary with every government formed every five years depending on their ideology, priorities etc..but the trust on public service is constant in nature. Public Service is expected perform there duties according to rule of law without any bias, but many events like the one of “Jain Dairies” highlighted by SC, recent ones like sharing information by CBI with Law ministry in Coal Gate, missing of files related to Coal Gate disclose the faults of public service and thereby its breach of trust. Some of the obstacles for punishing those responsible for this breach of trust are:
a) Lack of independent body which can perform investigations without the influence of Legislature or executive.
b) Nexus between the political class and public service class.
c) Lack of Accountability from the Public Service to the public.
d) Convenient laziness of Political Class in implementing the reforms related to accountability and transparency in Public Service.