The civil service has become a body where public accountability has been shunned. The time has come to drop the doctrine of pleasure from the Constitution and have a doctrine of hard work and honesty for them
By Justice (Retd) Kamaljit Singh Garewal
Bureaucrats, police, army, navy and airforce officers, in fact, all civil servants, serve the nation during the pleasure of the President. This doctrine has been in effect since the days of the Raj when civil servants served during the pleasure of the King. This no longer means that the President’s displeasure sends civil servants home. The doctrine is an anachronism in the 21st century when citizens have rights, including the right to expect all civil servants to do their duty. But our civil servants do not have clearly defined duties; they continue to serve as long as they enjoy the pleasure of the boss, and say “Yes, Minister” every morning.
The doctrine is quite irrelevant now as civil servants have safeguards and legal remedies. When in trouble, they rush to administrative or forces tribunals or High Courts and start long-winding judicial processes which can go on for years. It is no surprise that court dockets are full of service-related cases. A small proportion of civil servants have hogged disproportionate judicial time, much to the detriment of ordinary citizens. This was never so during the Raj when civil servants had no rights but just minimal safeguards (identical to those contained in Article 311, same as Section 240 of the Government of India Act, 1935). Earlier, civil servants could be arbitrarily dismissed, without recourse to justice. Now our Constitution gives civil servants vast constitutional rights which protect them from arbitrary, unreasonable, irrational, illegal and disproportionate actions of the government they serve.
During the Raj, civil servants, police officers and the army served the colonial project well, making the British Empire the largest the world had ever seen or will see. Scholars, historians, judges, and lawyers acknowledge the contribution of the British legal system in the making of our Constitution and laws. The British gave us our penal code, contract act, evidence act, codes of civil and criminal procedures. These were all enacted by the British Parliament during the reign of Queen Victoria and adopted by India as they did not conflict with our Constitution (Article 372). The reason all this has to be recounted is that the administration was run by efficient civil servants and effective police officers under the doctrine of pleasure, without legal rights and remedies. The civil service was the steel frame of the British in India.
In the last years before sunset, the Empire to which India and Pakistan were to later succeed stretched from Baluchistan to Nagaland, from Karakoram Range to Kanyakumari. The King employed civil servants for administrative duties and often sacked them when they displeased him. Civil servants had no grievance redressal mechanism to rectify unreasonable, irrational, arbitrary or unfair treatment by their King. The colonial system worked well and so much got done. A look at our administrative and revenue network, railways, armed forces and education system will convince anyone about the legacy the British left us. Finally, India was divided and free from British rule, but the doctrine of pleasure stayed on because it had served the administration so well. One would have thought that our legal brains, BR Ambedkar and others, would reject the pleasure doctrine and instead, introduce clauses suitable for our ethos and in tune with modern administrative practices.
This doctrine is the basis of Article 310 of the Constitution which says that civil servants serve during the pleasure of the President. They also enjoy constitutional safeguards under Article 311, which provides that no civil servant can be dismissed by an authority subordinate to the one that appointed him and no civil servant shall be dismissed except after an inquiry in which he has been informed of the charges against him. These safeguards were available to civil servants even pre-1947, but there was no service litigation those days. Later in the 50s and 60s, service law jurisprudence began to develop as protection of fundamental and constitutional rights became available to civil servants. Many administrative orders affecting civil servants adversely required judicial review and did get reviewed.
If we were to altogether drop the doctrine of pleasure, and make a uniform service law on well-recognised jurisprudence, general principles of recruitment and service conditions of civil servants, nothing would really change and continuity would be preserved, just as it was done under Article 375. Civil servants would still be appointed by the President on the basis of recruitment by the Public Service Commission and would still be bound by the service conditions of their appointment.
Moreover under Article 309, the Parliament is still constitutionally bound to pass a law to regulate the recruitment and conditions of service of civil servants. But a proviso enables the President to make rules to regulate the recruitment and conditions of service of civil servants until provisions are made by an act of Parliament. Seventy long years have gone by and our civil services are still not under any act of Parliament. Civil servants continue to serve during the pleasure of the President, without any legislation defining their duties. There have been dozens of committees, commissions and reports and much has been written on the subject of administrative reforms but there has been little or no action on the recommendations. There were reports by Appleby, Gorwala, Krishnamachari, Mudaliar, Kothari, Satish Chandra, Hota, Santhanam, to name a few.
First a commission is appointed, then to study its recommendations another committee is appointed and no decision is taken. In the meanwhile, the government changes and everything is put in cold storage. People on the top tweak a rule here or make an amendment there but governance continues by proviso. None of this is made public. How long can this continue?
In August 2019, in one fell swoop, temporary provisions came to an end in Jammu & Kashmir after Article 370 had been in operation since 1950. Proviso to Article 309 is one such provision. Parliament was to pass a law but until the law was passed, the rules governing civil servants were to continue. Indian civil servants have become a body where public accountability has been shunned. The judiciary is often criticised for the collegium system of appointment of judges but the executive run by civil servants without authority of Parliament, when the Constitution requires one, is no better.
The status quo argument is that conduct rules and regulations define the duties of civil servants and these rules have the force of law. What is being overlooked is that rules are made by the executive, not the legislature, although they are always placed before Parliament. In other words, service rules are framed by civil servants for themselves by themselves. No duties of civil servants have been written into a law by the elected representatives of the people. Civil servants continue to enjoy rights under well-established service jurisprudence but no constitutional duties.
The need of the hour is amendment of the Constitution to delete the doctrine of pleasure. It should be replaced with an act of Parliament, expressing the sovereign will of the people and covering all civil servants under one common and universal civil service code.
The people are the stakeholders for whom civil servants are employed, from whom they draw their powers, by whom they are paid and to whom they are accountable. US President Abraham Lincoln had said much the same thing. Are the people not entitled to know the duties of their civil servants towards them? Parliament must lay down that civil servants shall be honest, hard working, efficient, neutral, fair, impartial, polite, courteous, co-operative, apolitical and breach of duties shall invite penalty or accountability.
Moreover, conduct rules are not sacrosanct. They can be easily amended by the executive or by the civil servants themselves, and often are. On the other hand, parliamentary legislation cannot be amended by the executive using its rule-making power. Legislation is the sovereign will of the people and is not in the hands of the self-same civil servants to amend, change, vary or modify.
The time to drop the doctrine of pleasure from the Constitution has arrived. This will help in putting in place the doctrine of hard work, honesty and efficiency. A constitutionally ordained uniform service code shall declare the rights and duties of members of all civil and military services with corresponding rights and duties of the State. An end to service-related disputes may be in sight, when rights and duties are clearly defined in plain language. Civil services would then be able to get down to the real task of development, economic growth with social justice and national defence.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York
Lead picture: PIB