2017 Wishlist: Mr Modi, Start An Intellectual Assault On Victorian Underpinnings Of Bureaucracy

In the early 1950s, before each Diwali, my father would ask my brother and my sisters what we would like as gifts. We usually asked for things that he, on a government employee’s salary, could not possibly provide. So year after year we’d get the same things: new clothes of a slightly larger size.

I am reminded of this annual episode because Swarajya has asked me to write about what I would like in 2017. Just as I used to then, I have settled on something I want very badly but have learnt from experience that I (or we) will never get at least in my lifetime—a complete and thorough overhaul of government.

Seriously, folks, we are ruled—not governed, mind you—by a brutal and anti-people system that is unfit, useless, defunct, counterproductive and, indeed, in some sense anti-national. I say this advisedly because how can you call a system designed by the British to oppress us and which should have been dismantled long ago, anything but anti-national?

It doesn’t matter which instrument of the State you look at. Whether it is the executive, the legislature or the judiciary, these are all like Model T engines trying to run a PSLV. No wonder they go phusssst...all the time.

No, I am not ranting. I know what I am talking about. There was a time when as many as nine members of my family were in the IAS and another half a dozen in the Class One services. Many of my friends from school and college, too, have worked in government at the higher levels. It is only after they have retired that they have realised how oppressive the system is actually, designed to deny, denigrate and demean the citizen—and indeed the government employees, too, when the politician gets annoyed with them. So now, even as they draw their fat pensions—not to mention the lesser perks of their service networks—they grumble that things are going to the dogs.

This is not to say the entire bureaucracy is rotten—only 80 per cent is. But far more importantly, it is the system they operate that is completely rotten. And that is what needs to be changed because you can’t blame only the driver for a fault-ridden vehicle. Try as he will, an Ambassador cannot become a Mercedes and a scooter cannot become a Harley Davidson. In fact, as a former governor of the Reserve Bank of India (RBI) was fond of saying, our governance system excels in just one thing and one thing only: recruiting racehorses and turning them into mules.

And mind, this is not a case of a bad workman blaming his tools. The time has come for us to recognise that the tools are old, damaged and faulty. Unless we change them, the Indian people will not see achche din.

So given below are my pipe dreams for 2017. There’s no harm in hoping.

Rueing the rules

Have you ever wondered how we have got this system which requires us to get permission from the “appropriate authority”, “designated officer” etc? Thereby hangs a very interesting tale and it is an important one because it underpins our system of governance.

The story begins when the British crown took over the governance of India from the East India Company in 1860. Soon after that, Victorian priests began arriving in large numbers. They were appalled by Indian mores which they found sinful, hateful, duplicitous, lascivious and lacking in Christian morality. From about 1865 to 1915, the Viceroys and the governors of the provinces also came with heavy Victorian moral baggage. The priests had their ear and, to cut a long story short, the final result was that British legislation ended up requiring rules to be made for every law that was passed; and these rules required that permission be taken for practically everything that Indians wanted to do. “Permitted Activity” was the official name.

Not only did this transfer huge power into the hands of the formal bureaucracy, it also—far more importantly—inverted a principle of governance that the British hold dear: that you can do anything as long as there is no law against it. In India they saw to it that you could only do things that were specifically allowed.

Thus was born what Rajaji would later come to call the “licence-permit” Raj. Its antecedents can thus be traced back to a basic distrust of Indians. It still informs the way we are governed.

Enter Modi

When Mr Narendra Modi became prime minister in May 2014, like everyone else at that time I also wrote an article telling him what he should do. It requested him to abridge the rule-making powers of the bureaucracy. I also suggested how he could do it. My argument was that while the government makes policy and Parliament makes laws, the unaccountable bureaucracy sabotages both with its rules.

Each ministry or department has its own rules. The result is action paralysis which is as bad, if not worse, than policy paralysis. Nothing is allowed to happen. Ask any minister.

In consequence, the bureaucracy is now the most important, even if not quite the biggest, source of all that is wrong with India, including black money. An oppressive bureaucracy is bad enough; a corrupt one as well is a real poison pill for the country.

But from the very beginning in 1947, thinking that new policies and laws are needed, governments have forgotten about the rule-making powers of the bureaucracy. We can see where that has got us.

So here’s one of my wishes for 2017: Mr Modi must, absolutely must, erode the bureaucracy’s power to make rules. Unless he does that, neither he nor we will see achche din.

Delete/Amend Article 311

How many people know about Article 311 of the Constitution? If you’ve never heard of it, it’s because no one—neither politicians nor bureaucrats—ever talks about it. It is about the dismissal and removal of civil servants.

Clause 1 says “No person who is a member of a civil service...shall be dismissed or removed by an authority subordinate to that by which he was appointed.”

Clause 2 says whatever action needs to be taken must be taken “after an inquiry... and he has been given a reasonable opportunity” to present his case.

The only exception happens when national security is involved or it is not “reasonably practicable to hold such inquiry.” And, of course, “moral turpitude” and mental incapacity are grounds for removal or reduction in rank. That is, an employee has to be a sexual offender or a lunatic before the government will act against him or her.

No one has ever asked how such a clause crept into the Constitution and the truth has never been acknowledged by the government. So let me tell you. It is because the British in their clubs asked each other: How can mere natives remove or demote a gora officer?

So when the 1919 Constitutional reforms were introduced and gave Indians some limited power, this article was designed to prevent elected Indians from acting against British officers. I have not been able to trace the government order or clause anywhere, until it suddenly became part of the Government of India Act of 1935.

In that Act, only “the appointing authority” was given the powers to reduce in rank or remove. And guess who the appointing authority was? The Governor or the Viceroy himself.

Permission was always denied. If the British wanted to punish one of their own, they spoke to him quietly in the club and made him resign. They didn’t want Imperial authority to be eroded. The same idea permeates the government even now.

But what if a native official had to dismissed or reduced in rank? The legal ruse used was in the third exception, namely, it “was not practical to hold an enquiry”. It seldom is. The result is there for all to see: a civil servant need not work and do pretty much what he pleases for the 35 years that he or she is in service and absolutely no one can touch him or her.

So here’s the second thing I would like to see in 2017: the deletion of Article 311 or at least an amendment to it. No government, not even one led by Mr Modi, can deliver when its instruments are so blunt and immune from repair. For example, one reason why the smaller denomination notes were so slow in coming after demonetisation was that they were being printed by presses whose employees were covered by this horrible article. It was only after the RBI intervened and took charge that things have improved.

In short, the effect of Article 311 is exactly like that of the Armed Forces Special Powers Act against which there is so much protest. No country can afford to give such blanket immunity to its employees because this immunity allows them to exploit and oppress citizens mercilessly and sabotage elected governments.

The Saving Clauses

Then there are the so-called saving clauses which make the bureaucracy even more powerful. These start with “notwithstanding anything contained above, the Government reserves the right to do as it pleases”. Not quite in those words, of course, but you get the point. The idea is that if something does not suit the government it will not allow it to happen. The needs of the people are largely irrelevant.

Nor is this all. There is Entry 97 in the Union List of Seventh Schedule of the Constitution. It says that the Centre can legislate anything that is not mentioned in the State list and the Concurrent list as also impose or remove any tax mentioned in these two lists. This gives the Centre enormous legislative power in all new things. And, since the politicians hardly care, by default the power has devolved on the bureaucracy which is not known for any kind of specialised knowledge. Result: bad laws that seek to discourage rather than encourage.

This is the Victorian spirit that still informs the way in which our bureaucracy functions.

The limited notions of reform

For some reason that has never been clear to me, Indians now think that the only kind of reform that matters is economic reform. But the fact is that economic reform, unless requiring parliamentary approval is the easiest to achieve; it can be done with a stroke of the pen.

This is what Jawaharlal Nehru, Indira Gandhi and P.V. Narasimha Rao showed. Nehru simply used the Second Five Year Plan to make the government a major player in the industrial arena. Indira Gandhi took that one step forward and captured the financial system for the government. Rao undid the work to some extent by liberalising some major policies (but not rules) that made the government a dominant force in the economy. They did most of what they wanted through administrative orders. The results were dramatic.

What is infinitely harder to achieve is the reform of institutions like the judiciary and parliament at one level, and the bureaucracy, police, armed forces and so on that have a direct bearing on the way economic reforms play out. Unless these institutions are reformed to make economic reform meaningful—say, the ability to enforce contracts—the people will never get the benefits of economic reform.

So in 2017, I would like to see Mr Modi start a well-considered intellectual assault on the Victorian underpinnings of our system of governance. Of course, it must not come as a surprise one fine day at 8 pm on television but must be slowly introduced into the discourse so that it acquires legitimacy.

But when I ask myself, will I get what I want, I am inevitably reminded of the Diwalis all those years ago. In my father’s case, his spirit was willing but his wallet was not. In Mr Modi’s case, his spirit might be willing but his political compulsions are not.