Having dealt with litigation and public policy for long, one thing that constantly bothers me is the lack of proper inputs to the political executive. Even the higher bureaucracy is misguided at times, leading to improper decisions, which do not reflect the collective will of the government. Often policies mirror personal opinions and limited understanding, or lack thereof, of the army of section officers and under-secretaries who initiate file notings. This drawback has resulted in issuance of policies that at times go against the broadly stated position of the government itself.
Limited understanding of the initiators of file notings, at the lowest echelons of the government, is imposed upon millions of citizens in the form of public policy. Whether are good or bad, the government later has to defend such policies that becomes a prestige issue for the higher-ups who signed it.
Bypassing Legal Scrutiny
I was reminded of this disturbing reality again while going through a recent Office Memorandum (OM) issued by the Department of Personnel & Training (DoPT) on the subject of litigation, on June 7. The circular, by a sleight of hand, wants to put to nought the efforts of the current regime, the endeavour of the law minister and even an honest legal opinion recorded in a file.
On many occasions, courts have given orders which were against the policy as interpreted by the DoPT, with the law ministry saying that the decision should be implemented without filing any appeal. Now the DoPT has found a unique solution, and that is, by way of an innocuous line in Paragraph 1(a) of the OM it has decided to do away with the process of referring the file to the law ministry’s department of legal affairs altogether. The DoPT would rather go in for an appeal if the matter is perceived to be against ‘policy of the DoPT’.
Bureaucratic Faux Pas
- Department of Personnel and
Training (DoPT) decides in its June 7 order, not to seek legal advice from the
- The order is applicable in cases
where government employees have filed cases related to service matters.
- An immediate fallout of the
order would be increase in litigation, since an appeal will be filed in every
case, decided against the DoPT.
- Earlier the DoPT was consulting
the department of legal affairs (DoLA), under the purview of the law ministry,
before filing an appeal.
- Order comes due to dissonance between DoPT and DoLA, when the govt discovered that ministries were not
on the same page, when it came to defending cases in courts.
Burden of Litigation
This practically means that appeals shall be filed in almost all cases where positive decisions are rendered by courts and tribunals in favour of employees. The aggrieved party, in the first place, would have taken recourse to judicial remedy only when their departments would have rejected their claims based on their interpretation of ‘government policy’. Of course, the reality also is that quite frequently appeals and reviews are filed in employment-related service matters not out of any genuine reason or judiciousness but out of ego and prestige.
As far as litigation is concerned, the government has always been trigger-happy, and the only speed-breaker, at times, was the candid legal advice by the department of legal affairs. With that now out of the way, the raging bulls of litigation are bound to have a free run, negating the efforts of the prime minister and the law minister.
So what is the solution? The quest for an answer to this is, admittedly, not an easy task. But then some very basic steps can be taken:
- Make face-to-face
meetings by the competent final authority more frequent where polices or even
regular decisions affecting the public, before issuance, are thrashed out, and
brainstormed rather than relying upon notes put up from below.
- Follow a more
aggressive system of stakeholder consultation to get a well-rounded view of the
issue at hand. The regular
meetings of the Standing Committee of Voluntary Agencies (SCOVA) and Joint
Consultative Machinery (JCM) under the same DoPT are worth emulating in other
spheres of policy-making.
- Ensure that political will is enforced with an iron hand. India is a democracy where
the desire of the political executive should reign supreme. Once a particular
pro-people decision on public policy is taken, a strong top-down approach
must be maintained.
Decentralisation of Power
Since time immemorial our governance and policies have been slaves of those in key positions. In such a scenario, our ministers must understand that officials down the chain would not want to let go of the power concentrated in a few hands, such officials thrive on the sadistic pleasure from red-tape and license-raj, they love the way they can derive decisions out of generalists and political leaders, and thus to overtly rely upon such elements would be the greatest disservice to what India, incidentally a democracy, stands for.
India should be governed by robust policies made for public good powered by well-intentioned outlook of a strong political executive, and not by the personal opinion of some bored babu sitting in the corner of some dull room in Delhi wanting to impose his or her limited exposure and approach on us. The representatives of the people must apply their minds and should not be taken for a ride because the people would question them, not that babu. And the political executive must stand up and take charge.
(The writer is a practicing advocate in the Punjab and Haryana High Court. He is a Member of the International Society for Military Law and the Law of War at Brussels)