REFORMS CIVIL SERVICES; NEED OF HOUR

PRODUCING CIVIL SERVANTS OR PUBLIC SERVANTS ?
Central Civil Services in India is all set to become ebonite coated so that it is insulated from undue political interference as a bill in this regard is likely to be tabled in this session of Parliament itself. Reforms in Central Civil Services have been on the government’s priorities. In fact an Administrative Reforms Commission (ARC) had been constituted under Veerappa Moily to look into the entire gamut and recommend reforms in administration. Selection of new DGPs and Chief Secretaries by new government at State has always been a matter of debate. Similarly appointments of key functionaries at Centre like Cabinet Secretary, Home Secretary and Principal Secretary to PM by govt have also been under scanner of opposition. Need has been felt for few years to evolve a transparent and an institutional system in such appointments. The proposed legislation is perhaps aimed at addressing these core issues.
Proposed Bill is bound to trigger a National debate because Civil Service, in spite of Liberalisation, Privatisation and Globalisation (LPG), has still been embedded into the socio-economic, political and almost every walk of life with varied degree of penetration.
Government said it would bring a Bill just after the Budget. The proposed Bill seeks to constitute Central Civil Services Authority (CCSA) consisting of 3-5 members headed by a Chairman who would be selected by a committee of PM, Judge of Supreme Court, and leader of opposition in Lok Sabha. The Chairman would be placed at par with Chief Election Commission (CEC), that means his mode of appointment, service conditions, tenure and procedure of removal etc will be similar to that of CEC.
Many State governments have raised voices of concerns on the pretext of, what they call undue interference of Union Government in State’s matters. It is a scathing attack on, what they call, on the federal structure of government as enshrined in the Constitution. States are particularly averse to the provision in which consent of leader of opposition in matters of appointments of DGP and CS would be must. However one can hardly deny the fact that Civil Services in India do require some sort of overhauling and revamping in view of changing socio-economic, politico-administrative and global milieu.
Civil Service in India is a British legacy and still continue to exist with least metamorphosis. In fact posts of Collectors were created as early as in 1773 itself by the British. The Regulating Act of 1773, which was perhaps the first legislation of British in India to extend, consolidate and institutionalise British Raj created these posts. But it is only from 1853 when Civil Servants began to be selected through a competitive examination in which Indians were deprived from appearing into. Post of Divisional Commissioners (DC) and Sub-divisional Officers (SDO) were later created by governor general Lord William Bentick to lessen enormous powers of Collectors. Even after Independence this structure remained so strong that even Nehru called ICS as steel frame of India.
This steel frame work of India now requires anti-corrosion treatment to make it more resilient and vibrant so that it can suit and adapt according to the needs of our people. The PM has taken the initiative, but a lot of other provisions are required to be made to rejuvenate, revitalise and renovate this institution. The indolent and battered bureaucracy is urgently required undergo some drastic changes keeping in mind the contemporary socio-economic and politico- administrative situation of country. We have to ruthlessly trash vestiges from this structure, which is eating up vitals of our system, without fear and affection. Bureaucracy has become inured to miseries of people, therefore it has to be sensitised. We must not forget that there is an intense rancour in masses against the indifferent, lackesaidial and insensible approach of most of civil servants in our country.
The proposed move is plausible, but only cosmetic surgery and its insulation from political interference would not do। Here are some changes would should be made to make Civil Services more sensible, vibrant, accommodative, responsive, responsible and public servant rather than govt servant.

1. The entry into Central Civil Services should be from intermediate level rather than graduation। It would help diminish the chances of entry of huge number of engineers, doctors and professionals including from IITs, IIMs. Civil Services are generalist job and Civil Servants from engineers and doctors community virtually have no use of their studies in this career. Moreover technical education in our country is still highly subsidised and public money is spent on them and in a way when these students enter into Civil Services, the cost incurred on them by government goes futile. It is therefore prudent to discourage such entries. By making Intermediate as entry level into Central Civil Services we can help eradicate this trend.

2. Period in field posting should be enhanced and the officers especially IAS and IPS should have longer years in fields on sub ordinate posts. At present IAS and IPS become DMs and SPs within 3-4 years time and therefore have little experience in grass root level problems. We should not forget that we are not producing Corporate Managers in UPSC; rather we are producing public servants. Longer duration in fields especially in rural areas would enable them to understand Bharat i.e. rural India in much big and better way. IPS officers become SP even less than one year. Thus the posting profile should undergo structural and functional change to make them understand the problem in bigger way.

3. Concept of fixed term is a welcome idea, but it should not be linked with extensions। In fact the very practise of giving extensions to favourite officers has lured the Civil Servants to do act of favouritism in order to win over their political masters. At the same time it discourages officers of next junior batch because it mars their chances of coming to top posts. For instance if the serving Chief Secretary, Cabinet Secretary or Home Secretary is given extension, the just junior batch officer will be left with no motivation because by the time the officers whose service has been extended would retire, the most of the officers of just junior batch would also retire. The fact of the matter is that the practise of giving extensions have helped germination of resentment and created aberrations also. This practise should therefore be discontinued immediately.

4. These days post retirement assignments are being offered to most of the top bureaucrats। Many retired IAS especially at secretary level in govt of India get assignments immediately after their retirement. Post of CEC, CIC, Member Planning commission, Advisors in different ministries, RBI governor, governors of states, and a host of such posts almost invariably go to retired Civil Servants. There is no denying the fact that officers of huge administrative experience should be tapped for country’s welfare, but such trend helps develop tendency and chances of nepotism, favouritism and other such ‘ism’ which in long run are detrimental and deleterious for our politico-administrative tapestry. Provisions should therefore be made that no officer shall be given post retirement assignment before three years after their retirement. Not only that persons retiring from posts like Judge, CEC, CIC, governor etc should not be given any post whatsoever because it is affecting the system very adversely.

It is happy to see that Civil Services are being insulated from political interference but at the same time it should also be ensured that such immunities are utilised for good of democracy, federalism, welfarism and politico-administrative structure rather than protecting non-performance and lobbyism. Merely providing security in term and conditions may make them more obstinate and non-performing because they still have enough protection in Constitution (Article 311).

CODIFY THE MODEL CODE OF CONDUCT ITSELF

GIVE SOME TEETH IN ITS JAWS

Constitution of India has bestowed the responsibility of conducting election on the Election Commission of India (ECI) under article 324. This article provides for ‘Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)’

Thus the ECI has been given constitutional status so that it could conduct the election in a free, fair and peaceful manner. The independence of the Commission has been guaranteed under 324(5) of the constitution as it reads ‘Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.

Election is the pivot and corner stone of democracy; therefore it has to be conducted in a free, fair and peaceful manner. For this purpose, the Parliament enacted in 1951 the Representation of People Act and subsequently conduct of election rules to this effect was also framed in 1961.

India went on poll for the first time and it was a huge success both in terms voters turn out and peacefulness. India made tryst with destiny in the real sense of the term as dreamed by Nehru in his famous midnight speech on 14 August, 1947.

After few years, the ECI issued an order to regulate the activities of the political parties and their candidates and also to take punitive actions for violations if any. 

The ECI, in exercise of the powers conferred on it under article 324 of the Constitution, section 29A of the Representation of the People Act, 1951 (Act 43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961 made an order called the Election Symbols(Reservation and Allotment) Order, 1968.

This step of ECI was a milestone in the electoral history of Indian democracy in the sense that it laid the foundation stone of model code of conduct. After every election, parliamentary or state legislative, the ECI felt the need to add more teeth into its jaw and gradually some sort of a set of regulatory guidelines with regard to political parties especially those in power and ministers, officers etc was required to be framed.

First step towards evolution of a set of code to regulate and monitor the activities related to the process of election was taken by T.N. Seshan in 1991, when he issued a set of instructions called Model code of conduct or MCC. Although this set of instructions did not have any legal or statutory backing, it was advisable on part of political parties, particularly those in power, officials related to conduct of poll etc to adhere to these instructions. This is how the seed of the present day model code of conduct or MCC was sown. There was a lot of hue and cry as to whether or not ECI or for that matter CEC can issue such advisory or instruction or not and if whether it can have some statutory effect at all.

Legal luminaries may be divided on this issue but the ruling of Apex court in this regard is worth mentioning.

In 1978 itself five Judges constitutional bench of the Supreme Court held in Mahinder Singh Gill versus CEC AIR 1978 ‘ the constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the election commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.’

Thus the apex court cleared all doubts whatsoever with regards to the powers and functions of the ECI in matters of conduction of a free and fair election. It is perhaps due this fact the framers of the constitution have made provisions in article 329 of the constitution for debarment from interference by courts in matters of elections. 

Even then the matters of dispute did arise especially when Sehan played tough on the political parties. Keeping in view of the growing tendencies of parties in power to take undue advantage of being in power, the ECI inserted in 1994 (Notification. No. O.N. 42(E) 18th February, 1994). a new section called section 16A in the Election Symbols (Reservation and Allotment) Order, 1968. In fact the insertion of this new section marked the beginning of the process of giving statutory and legal touch to the Model Code of Conduct or MCC. By virtue this section, the ECI assumed power to withdraw recognition of a recognised political party for its failure to observe model code of conduct or follow lawful directions and instructions of the commission. This is how the model code of conduct in its present form came into being.

Even after insertion of the above provision in the Election Symbols (Reservation and Allotment) Order, 1968, the model code of conduct could not be made a statute, perhaps because the said order itself in a way was an executive order issued by the ECI by virtue of powers conferred on it by article 324 and Acts enacted therein. 

In fact, the notification issued to this effect itself says ‘in exercise of the powers conferred by article 324 of the Constitution 1[read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10] of the Conduct of Elections Rules, 1961.

This MCC therefore, remained exposed to judicial scanning. The first legal opportunity to examine this code came in 1997, when a petition was filed in Punjab and Haryana HC challenging the EC powers which it drew by inserting section 16A in the Election Symbols (Reservation and Allotment) Order, 1968. The Court dismissed the petition and upheld the validity of the amendment made in the said order. The court observed that EC can issue directions to the govt and ask them to follow the Model Code of conduct. The court further said that the EC is entitled to take such steps for the conduct of free and fair election. Clarifying the confusion as to what would be the date from which the MCC would come into vogue; the court said the commission can invoke this MCC even before the issuance of notification of dates of polls also.

In 2000, the Union govt moved to the Apex court against the ruling of the EC regarding the date of Model code of conduct coming in force after the above order of Punjab and Haryana High court, and sought a favourable decision from the apex court. The legal battle went on between the govt and the ECI. In the mean time a compromise was reached between the EC and Union govt with regards to the date from which the MCC to come in force and eventually the Union govt withdrew the application from the apex court.

As per this compromise reached between the Union govt and EC, it was agreed upon that the EC would announce the poll schedule two weeks prior to the notification of the election and the code will came into force from the date the EC announces the schedule.

After this arrangement the model code of conduct comes in force with immediate effect after the announcement of schedule of polls.

CATEGORIES OF MODEL CODE OF CONDUCT- the model code of conduct thus is a compendium of circulars and instructions issued by EC invariably before every election and contain dos and don’ts. It is generally categorised into General conduct, Meetings, Processions, poll day, Polling Booth, Observers, Parties in power and some questionnaire. 

Although model Code of conduct as such is not enforceable as it lacks any legal vertebra, it directs the officials especially DEOs to lodge FIRs as and when instructions under this code are violated. The ECI directs the concerned authorities to lodge cases under different penal provisions of prevailing national or local laws.

MODEL CODE OF CONDUCT AND IPC- In Indian Penal Code (IPC) for instance, a separate chapter IX A has been inserted in 1920 by Election Laws ( amendment) Act, 1920 (Act 30 of 1920). This chapter contains section 171 only but over a period of time, depending upon exigencies; sub-sections have been added to it time to time. As on now, this section 171 contains nine (9) sub-sections i.e. 171-A- 171-I. Two amendments have so far been made, one in 1975 adding clause(a) and (b) in sub-section A of section 171 and other in 2003 wherein a provision in section 171-D was made to enable duly authorised persons to cast proxy votes.

Thus for most of the violations of MCC, cases are registered under the provisions of this chapter of IPC.

Similarly violating prohibitory orders invoked under section 144 of Criminal Procedure Code of 1974, cases under section 188 of IPC are registered which is a cognizable but bailable offence. This law has become almost toothless and people make mockery of it because even if you violate the prohibitory orders, police would have to set you free as soon as you are taken into custody. In fact cases are registered under this section 188 for any kind of act of disobedience of order issued by a public servant who is legally authorised to promulgate such orders. Therefore, technically speaking, if the model code of conduct is violated, FIRs can be lodged u/s 188 of IPC also because the ECI is empowered to issue or promulgate such instructions by virtue of powers conferred on it under Article 234 of Indian Constitution.

Apart from above mentioned sections, cases are also registered for violating model code of conduct in sections other than chapter IX of this code depending upon the nature of offence.

WALL PANTING AND POSTER PASTING- The wall panting or poster and pamphlet pasting on walls are also prohibited as per the instructions of MCC subject to certain conditions. Raising hoarding and banners are also prohibited. If such things come to the notice of the concerned authorities cases are required to be registered. Problem sometimes arises that under which law and sections do these cases be registered? The EC has furnished a list that instances for which cases under Defacement of Public Property Act should be registered. This is a local law and almost every state govt has its own law related to defacement of property. For instance in Delhi there is one Delhi Prevention of Defacement Act, 2007, in W.B there is one W.B Defacement of Property Act, 1976, in Bihar we have Bihar Prevention of Defacement of Property Act, 1985 etc. Thus, for every state there is a separate law. In some states it is cognizable and non-bailable whereas in others it is bailable and non-cognizable. It causes lots of technical problems for the ECI to issue one uniform direction to all the States. Similarly for use of laud speakers, we have a plethora of Acts and rules. Almost every state has a separate law or rule regarding the use of laud speakers. 

Under the above circumstances the enforcement of MCC in letters and spirits often becomes difficult. The officials have to use discretion and it is rightly said that discretion begets discrimination. 

MODEL CODE OF CONDUCT AND RP ACT 1951- in order to help ECI to conduct a free and fair election as enshrined in article 324 of the constitution, the parliament enacted a comprehensive law called Representation of People Act, 1951. In fact it contains provisions to regulate the activities and conduct of both political parties as well as poll officials. It is therefore can be said the precursor of MCC. If a glance at this law is made, it clearly stipulates the provisions related to violation of MCC. These provisions are inserted in PART VII and titled as CORRUPT PRACTICES AND ELECTORAL OFFENCES. The chapter-I of this Part contains provisions related to Corrupt Practices and has one section 123 only. CHAPTER-III of part-VII of this Act is titled ‘Electoral Offences’ and contains sections like 125-Promoting enmity between classes in connection with election, 125A- Penalty for filing false affidavit, etc., 126-Prohibition of public meetings during period of forty—eight hours ending with hour fixed for conclusion of poll, section 127-Disturbances at election meetings, section 127A-Restrictions on the printing of pamphlets, posters, etc., section 128-Maintenance of secrecy of voting.

Last but not the least is section 8 of RP Act which deals in disqualification on conviction for certain offences. Sub-section 3 of this section says ‘ A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’

Sub sections (1) and (2) of section 8 contain a list of offences in which quantum of punishments is less than two years but still then the convicted persons are liable to be disqualified. 

NEED OF A COMPREHENSIVE ELECTION LAW ENLISTING MCC- In the above mentioned situations, the RP Act of 1951 has become almost obsolete especially due to amendment made in section 41 of Criminal Procedure Code which now prohibits arrests for an offence, the quantum of punishment for which is less than seven years. The plethora of penal laws, rules and orders with regard to violation of MCC has become a vexed problem both for the election related officials as well as for the political persons. Many a time acts of disobedience are committed due to non-acquaintance of laws pertaining to a particular action. Moreover what is the use of such directions or code which themselves are not codified. It is therefore advisable on part of the govt as well as ECI to take steps in this regard and enact a comprehensive legislation incorporating therein all relevant provisions connected with entire gamut of election processes.

Till date, all offences related to violation of model code of conduct are dealt in accordance with the provisions of Criminal Procedure Code, it therefore take very long time in reaching a case to the logical conclusion. The proposed legislation as discussed in above paragraphs, therefore should be enforced by a special rule also. Meaning thereby that special processes and special courts should be evolved so that these offences are tried and reached to logical legal conclusion. The present day scenario is that everyone believes that nothing happens in such cases. Even the officials are of the view that file some cases to escape the apprehended wrath of the ECI, once the election process is over everyone tends to forget about these cases. In fact, this notion about the ECI and cases of violation of its directions are very detrimental to our democracy and therefore this state of affairs must be changed. The concept of 'speedy trial' in some selected cases has been a very successful exercise in the state of Bihar.The percentage of conviction in relation to the national average has gone up in a short span of time. The cases under Arms Act, 1956 and Prevention of Corruption Act are being disposed off at a fast pace. The number of convictions in Bihar has risen to a spectacular proportion. This concept can be utilised in this matter also. After all, elections and democracy are the twin pillars of our political institutions which ought to be protected against any decay and degeneration.