–Nick Robinson, Fellow, Program on the Legal Profession, Harvard Law School
[cross-posted from Law and Other Things]
Last week saw the Supreme Court decide T.S.R. Subramanian vs. Union of India. The judgment, involving the independence of the bureaucracy, is arguably the latest in a fascinating line of jurisprudence from the Court over the last decade and a half attempting to insulate parts of the government from politicians (Prakash Singh laid down a set of orders intended to sure up the independence of the police, Vineet Narrain to increase the independence of the central bureau of intelligence (CBI)).
T.S. Subramanian was brought by 80 retired bureaucrats who asked the Court to order the government to implement three specific recommendations that had been put forward by a number of expert committees over the years that were aimed at reforming the civil service: (1) Create an independent civil service board at the center and in the states for promotions and transfers of bureaucrats; (2) Provide fixed tenure in postings to civil servants (to give them some protection against indiscriminate or biased transfer by politicians); (3) Require all civil servants to record all directions they receive from their administrative superiors, and also from political authorities or business interests.
The two-judge bench of Justices Radhakrishnan and Chandra Ghose largely came down in favor of the petitioners, but provided the government with significant wiggle room to shape these court-mandated reforms going forward.
The Court directed that the center and the states constitute civil service boards, which include the top bureaucrats in the state or the center, until such time that Parliament passes a civil service act that would specify in greater detail the composition and powers of such boards. It also directed the respective governments to set out terms of tenure for different types of civil servants within three months. Finally, the Court directed that civil servants respond to only recorded instructions (although it’s a bit unclear if it’s the superior or the inferior who has to record them).
There are at least four critiques to this judgment that I have seen – and indeed this entire line of jurisprudence. While taking no position on the judgment here myself I do think going through them sheds some light on the stakes involved in this case and how it fits into the Court’s broader thinking on these issues.
(1) Is it the Right Policy? Although most would agree that India’s civil service is not working as well as it should there are many different – and contesting – claims about why this is and what should be done to fix it. Expert committee reports have tended to largely agree on the three recommendations ordered by the Court, but these expert committees were dominated by retired bureaucrats who disproportionately bring one perspective to this debate. The Constitution already mandates, and there does exist, Public Service Commissions at the center and in the states. The Court lamented their ineffectiveness in its judgment, but perhaps these institutions should have been strengthened or reformed instead of mandating new boards. Fixed tenure might be a good idea for some positions, but likely not all. It’s unclear if this order gives the governments enough flexibility in this regard. At any rate, according to the judgment many of the states and the center already have fixed tenures in place. The government’s focus going forward in civil service reform will now more likely be directed towards these three orders. It’s not immediately clear that this is what the government should be prioritizing vis-a-vis other reform efforts.
(2) Overreach. Some will certainly argue that the Court overstepped its constitutional powers. The judgment cites the constitution a fair amount to highlight the provisions regarding an independent civil service, but it’s reasoning is largely non-existent about where it gets the constitutional authority to order the government to implement these wide-ranging directions. To be fair to the judges, there are many such orders from the Supreme Court that don’t really detail where the Supreme Court is getting its authority to make its orders. In the long wrong such a practice is worrying as it can undercut the Court’s legitimacy and lead to intellectual sloppiness if the judges don’t have to make causal links to the constitution, legislation, or precedent (the Court seems to only cite to one case in the entire judgment – Prakash Singh – and that only to explain to the petitioners that it will not make as sweeping orders as it did in that case).
(3) Implementation. The Court can order all it wants, but it has had serious problems implementing its directions, particularly in cases like this. Neither the police nor the CBI are free from political interference today despite Prakash Singh or Vineet Narrain. Whether the Supreme Court’s interventions in those cases helped, hurt, or made no difference in the cause they were trying to promote is an open empirical question. It will certainly be more likely that the Court’s orders in this case will be followed if some of the major political parties come out in support of the decision or a civil society movement pushes for its implementation. If neither of these happens, it would seem unlikely that the Court’s directions would have much impact and we can look forward to foot dragging and actions from the government designed to address some of the Court’s directions, but not their spirit.
(4) Comparative Institutional Advantage. Legal process theory would have us ask is the Court the best institution to make decisions about administrative reform? The transfer of bureaucrats is core to political patronage and control. There is clearly a corrupt side to this that needs to be reformed. However, politicians in all countries also have the power to appoint their own bureaucrats (particularly in high-level positions). If you are a new political party coming into power you want to make sure that you have bureaucrats that are willing and motivated to implement your agenda (not the last government’s). This is a delicate balance to strike, and one that the Court is not particularly well-positioned to judge. In theory Parliament and the Executive are much better equipped to make these decisions. Indeed, recognizing its comparative disadvantage the Court in the judgment does try to push Parliament to act through legislation and the Executive through rulemaking.
Menaka Guruswamy, one of the lawyers for the petitioners, was interviewed by Mint after the judgment. Relevant to this debate, she explained why they went the judicial route to get this opinion: “Probably nowhere in the world would you have filed this case in the courtroom; you would have tried to lobby the Parliament to get that. . . . [You should have] lived in a country which should have implemented these committee reports, fixed tenure, written instruction. That should have been the country. We don’t live in that country.”
In this way, this judgment fits into a much wider jurisprudence (perhaps most of the Court’s Public Interest Litigation jurisprudence) in which petitioners and the judges themselves express dissatisfaction with the democratic process in India and use that as a justification for the need of the Court to intervene. They feel this justification crowds out concerns about the Court’s institutional expertise, ability to implement its orders, worries about overreach, or whether it’s actually even getting the policy right. In other words, despite these drawbacks, from this view the Court acting is better than the alternative.