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Leaving it to the pros | The Indian Express

If the army feels it requires continuation of the AFSPA to discharge its responsibilities, no other agency is qualified to credibly challenge that view. The perils of a bureaucratic and legal imagination that disdains politics. What kind of a judgment is T.S.R. Subramanian and Ors vs Union of India? The judgment has been widely lauded for pushing civil service reform. Some of its suggestions may have a degree of merit,though their actual impact will probably be far less radical than supporters assume. But the more you read the order,the more disturbing it appears. It is well intentioned. But it also unwittingly reveals a particular cast of thinking that is haunting discussions on governance reform. It is a complex of sociological claims,claims about the law and static thinking about institutions. It is a combination of bureaucratic and legal imagination that is so peculiar a name is needed for this amalgam: the bureaual mind. What are the elements of this imagination? The bureaual mind takes its starting point from the obvious failures of our representative government. But then it assumes that the more matters are insulated from representative government and handed to independent professionals,the better off the system will be. Judges with balancing oversight of other branches or professional civil services boards handling transfers will be better than anything where politicians are involved. Left to their own,our professional classes will do better than politicians. Implicit is a construction that politicisation is the single point explanation of all vice; insulation from politics a road to virtue. This assumption is deeply problematic. It sets up a sociology of innocence among Indias ruling classes that is patently false. To put the point starkly: Indias elites,from judges to bureaucrats,academics to politicians to the police,are all cut from the same cloth. No particular group is less likely to be corrupt or have fewer failings than the others. Rather than using politicisation as a catch-all explanation of all evil,we should reverse the presumption. Perhaps we are producing the kind of politics we are because of the kind of society we are. If this is true then reform by keeping out politics is a pipe dream. Just look at what happened to the judiciary itself. The bureaual mind is opposed to a political mind in several respects. A genuinely political mind recognises that governance is the art of managing competing inconveniences. Its problems cannot always be solved by more rules. It is true that in some states,what politicians have done to the civil service is a travesty. Some remedies are needed. But it is equally true that what the civil services have done to stymie the will of representative government,often by instruments politicians can barely understand,is also staggering. In many areas,whether it is service delivery,protecting freedom of expression or crafting administrative procedure,bureaucracies have been as responsible for disastrous outcomes as politicians. Sometimes,bureaucrats need protection. But the fact of the matter is that they actually have quite a lot of protection. To think that the core problem is to shift the balance of power in favour of bureaucrats is a debatable diagnosis. The bureaual mind has now created a self-fulfilling legalism. It is hard to read Subramanian as a judgment. Short judgments are a good idea. But this one has no legal reasoning. Perhaps our popular vocabulary that this is an order captures better the essence of what is going on. The meaning of every constitutional article is being subverted. As Krupakar Manukonda and others have pointed out,Article 32 is meant to be a judicial safeguard for the protection of rights. If a particular mode of governance by the civil service has now become a right,anything can become a right. Perhaps in five years,we will have the right to a bureaucracy-free government. The use of continuing mandamus is a travesty. While commission reports can be valuable,even the court recognises in the judgment that not all ideas recommended by commissions are implementable. But the idea that the mere existence of commission reports can be part basis for a writ of mandamus is stretching meaning beyond breaking point. Under what law does the court give instructions to legislatures on matters that do not involve fundamental rights? So does this set up a legal precedent for education reform by a writ of mandamus,simply because there is a knowledge commission report whose provisions have not been implemented? Frankly,the court is not implementing the rule of law,it is ruling by law. The bureaual mind is undeterred by history and complexity. It is sure that rules designed from on high can fix all problems. The court makes a nodding acknowledgment of the failure of its own past orders,in Prakash Singh and Ors vs Union of India,to bring about meaningful police reform. But that does not deter it from diving in again. Many of the provisions it recommends,such as a civil services board,exist in incipient form. Under the existing rules,IAS officers are already required to see a written confirmation of oral orders. There is not a trace of diagnosis about why these provisions have not worked as they should have,other than the perfidy of politicians. Anyone who studies institutions knows that formal rules are only a small part of what makes them function; you need a deeper understanding of the incentives,capacities,norms and professional identities of those institutions. There are also unintended consequences. Will making transfers harder give more incentives to really thuggish ministers to go after their civil servants in worse ways,perhaps using the CBI that the court pretends to control? And there is no sense of historical perspective. In some respects,you could argue that there has been a deterioration in the quality of civil service. And corruption cases focus on that. But frankly,in terms of service delivery,it is hard to argue that we are worse off than two decades ago. In fact,it is worth looking at how this same politicised civil service,in states as diverse as Bihar,Tamil Nadu,and Chhattisgarh,is actually producing a sea change in delivery. In short,we are in the midst of a great dialectical churning in governance reform. Lots of elements of a new governance architecture are being put in place. This political process needs to work itself out. The last thing it needs is more hurriedly thought out rules not linked to this organic churning. There is understandable impatience about reform. But as Ran Hirschl noted in Towards Juristocracy,turning to the courts is almost always indicative of the middle classes getting their revenge on political upsurges from below. We have representative government. We are weak on the rule of law. But fix the rule of law. Dont undermine the authority of representative government. Some of us believe we have a right to be ruled by politicians. The writer is president,Centre for Policy Research,Delhi,and a contributing editor for The Indian Express
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