It is unprecedented in the annals of democratic functioning anywhere in the world. It can only be described as a travesty of Constitutional law in a modern democracy, something that would embarrass any nation that prides itself as a functioning democracy under the rule of law. The embarrassment in this case is all the more acute since it is happening in the world’s largest democracy, right in India’s Capital.
The Legislative Assembly of Delhi, through one of its Committees, summoned the Secretary of the PWD of the State Government, to examine the working of the Department. It is perfectly entitled to do so, to ensure that the Executive is accountable to the Legislature. Were the Legislature to discover any shortcomings or lapses in the functioning of any Department of the local Government, it is further entitled to record its findings and send its report to the Government for appropriate action.
In the instant case, the Legislative Committee is reported to have come across certain lapses in the working of the Department. It summoned the State Chief Secretary and directed him to record adverse comments in the annual confidential roll of the Secretary concerned. The State Chief Secretary refused to do so, which was the legally correct thing to do. Upon this, the Speaker of the Assembly took umbrage and threatened the officials concerned to take action against them for contempt of the Legislature.
The State Chief Secretary, finding no other alternative approached the Delhi High Court for a stay of contempt proceedings. The High Court promptly granted a stay against the Speaker’s threatened course of action. Some MLAs, members of the ruling party publicly accused the High Court of “interference” in the functioning of the Legislature. The Speaker then wrote to the Chief Justice of the Court to complain against the Division Bench that had passed the interim order.
A number of Constitutional issues arise in the case which must be addressed, lest democracy becomes a victim of political high-handedness. Otherwise, the rule of law will become a casualty. The permanent civil service, which is the only instrument available with the political executive to translate its goals into reality on the ground, will cease to function. Ironically, the civil service will survive, being the permanent executive but the ruling political executive will suffer if the constituents find that it has failed to deliver on its promises.
Admittedly, the State Legislature is fully within its rights to hold the Delhi Executive to account. But when a Secretary appears before it, the committees of the legislature assess overall departmental functioning and not that of individual officers. Even assuming that the committee may come across individual lapses, the proper course for it is to record its findings and forward the same to the Government to fix responsibility first and then take proper action. It cannot convert itself into a disciplinary authority. That was the model of governance in the defunct former Soviet Union.
The Legislature has no authority to take action against individual officials who may be found wanting in the discharge of their official duties. All administrative action is taken by permanent officials with the prior authority of the Minister-in-charge of the department, either under general or specific orders. This is the legal position under the Rules of Business governing the functioning of the departments. If, prima facie, there is any lapse by the department, the first responsibility is that of the minister. It is another matter that only the departmental secretaries appear before the Legislative committees and not the Ministers-in-charge.
The Annual performance report of the officials is written by departmental superiors, all members of the permanent executive. They are the best judge of one’s day-to-day performance. Members of the political executive, even the ruling ones cannot usurp this function – all MLAs are members of one or the other political parties. The legislature cannot usurp the functions of the executive, as laid down by the Supreme Court in the celebrated case of Keshvananda Bharati more than four decades ago. To do so would be unconstitutional – a violation of the ‘basic structure’ of the Constitution.
It is further reported that the Speaker of the Assembly has written to the Chief Justice complaining about the alleged interference by the Bench of the High Court in the functioning of the Legislature. This is again an unprecedented act on the part of the Speaker, to challenge the authority of the Court – it borders on the contempt of the Court. Assuming that the Speaker were aggrieved, for whatever reason with an order or judgment of the Court, the proper legal course would have been to appeal against the said order in the next higher court, i.e. the Supreme Court.
In the bargain, an important Constitutional provision has been overturned. There is a total bar on the Legislature to discuss any issue concerning the conduct of the members of the Higher Judiciary in India. Even the Speaker cannot allow any discussion on the same. Arguably, this is the main safeguard to ensure the complete independence of the judiciary from the executive. Once Court orders were to be discussed in the Parliament or the Legislative assembly, judicial independence would be lost.
The position as it obtains today is a travesty of the Constitution and the rule of law. A legislative Assembly has assumed authority over individual officers of the permanent executive, something that it cannot do under the law. The elected assembly is a deliberative body, with no executive power. The permanent civil service serves under State Government, not under the Assembly. In the present case, it is the responsibility of the State Government to intervene and come out in defence of the civil servants.
As the State Government is remiss in its Constitutional obligation, it opens itself to another charge. There is a breakdown of Constitutional machinery, and the State Government is not discharging its Constitutional duties. India is a Federation, and normally the Union cannot interfere in the functioning of the states. The permanent civil servants, though recruited and trained by the Union Government are thereafter placed at the disposal of the states, where they are under their administrative control.
There is one exception though to the said provision. In case the state is not being run in terms of the constitutional provisions, the Union Government is under a Constitutional obligation to dismiss the State Government and assume direct control of the affairs of the state, and run the Government through the permanent officials. It is further obliged to dissolve the Legislative Assembly and to order fresh elections in due course.
The Chief Secretary is the head of the civil service in his respective state. If he has to rush to a court of law to vindicate his position, evidently something is seriously remiss in the functioning of the State Government. Hence, the state’s ruling political leadership must intervene to remedy the situation. Otherwise, in the face of the present gridlock, it would be signing its own death warrant.
The writer is a retired IAS officer and Member, International Academy of Law.