The Peninsula Foundation

Category: Governance, Law & Order

  • Change in IAS (Cadre) Rules – Policy Brief

    Change in IAS (Cadre) Rules – Policy Brief

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    Executive Summary:

    The Centre’s proposal to amend the IAS Cadre Rules has sent shockwaves through the State governments and the bureaucratic community. Although the Centre already has the preponderance of power over the State government, it has always been the convention to depute All India Services (AIS) officers with the concurrence of the State government(s) and the Central government and the consent of the officer concerned. By providing overriding powers to the Central government, the proposal poses a fundamental risk to the federal structure of the Constitution. Not only should the proposal be recalled, but the annual intake of the IAS officers should be increased to address the issue of staff shortage, while recruiting suitable personnel from other Central Civil Services. The empanelment process also needs to be reformed to ensure transparency, objectivity and to uphold the principles of natural justice.

    The Centre’s proposal is a reflection of the long overdue need for the complete overhaul and reform of the Indian civil service system. These piecemeal amendments and a myriad of executive orders are not only unproductive to the civil service system but also counterproductive to the basic structure of the Constitution. A high-level committee should be established to undertake a holistic study to reform the Indian civil service system not only to bring in better performance and accountability but more importantly, to get rid of the colonial legacy once and for all.

    What is it?

    Deputation of IAS officers is governed under Rule 6 of The Indian Administrative Service (Cadre) Rules, 1954. Rule 6(1) mandates that the deputation of cadre officers to the Centre must be done with the concurrence of the concerned State government(s) and the Central government.

    The provision to Rule 6(1) states that in case of any disagreement, the Central government’s decision will prevail, and the State governments shall give effect to it.

    The proposal attempts to amend the Central Deputation rules by giving overriding powers to the Centre to transfer and post Cadre officers without the consent of the State government.

    Proposed Amendments (Singh, 2022)

    1. ‘Within a specified time’

    The proposal amends the proviso mandating the State governments to give effect to the final decision of the Central government within a specified time as decided by the Central government.

    2. ‘Officer shall stand relieved’

    In case, a State government delays a cadre officer’s deputation to the Centre and does not give effect to the Central government’s decision within a specified time, the concerned ‘officer shall stand relieved from the cadre from the date as may be specified by the Central government’.

    3. ‘Number of officers’

    Another change proposed is that the actual number of officers to be deputed to the Centre shall be decided by the Central government in consultation with the State government which is required to provide a list of eligible names.

    4. ‘Public interest’

    In a specific situation, if the need arises for the services of a cadre officer to be utilized by the Central government in the public interest, the State governments shall give effect to it within a specified time.

    The abovementioned amendments were sent to the State governments in a letter dated 12th January 2022 by the Department of Personnel and Training (DoPT) seeking comments until 25th January. The DoPT had earlier sent three similar letters (dated 20th,27th December and 6th January) which were strongly opposed by six States (including BJP ruled States) (Singh, 2022). As of now, more than 7 States have written to the DoPT opposing the proposed changes and other states such as Maharashtra, Kerala and Tamil Nadu have also raised their opposition. The CMs of Chhattisgarh and Rajasthan have also written to the PM opposing the proposed amendments to the cadre rules.

    Why is it a problem?

    The proposed amendments are essentially an attack on the federal structure of our Constitution since it derogates the State government’s power in posting and transferring its cadre officers without its consent. In spite of the rules giving preponderance of power to the Centre, it has always been the convention to depute officers to the Centre in concurrence with the State governments and the consent of the officer concerned (Dhingra, 2021).

    Mamata Banerjee, the CM of West Bengal wrote a strongly worded letter to the PM opposing this move and calling it a ‘unilateral decision’ which was ‘historically unprecedented and wholly unconstitutional’.

    The trigger for this move by the Centre is most likely the result of the tussle between the Centre and West Bengal over former IAS officer Mr. Alapan Bandhopadhyay. Given his experience in handling the Covid-19 crisis as the Chief Secretary of West Bengal, the State government had requested the Centre to extend his tenure and the latter acceded by extending his term for 3 months (24th May 2021). However, the Centre on 28th May 2021 did a complete 180° and issued an order to Mr. Bandhopadhyay informing him that he has been placed with the Government of India ‘with immediate effect’. Following this, the State government opposed the order and did not relieve him and the concerned officer also opted to retire from the services and is now appointed as the advisor to the CM. The Centre then issued a show-cause notice to Mr. Bandhopadhyay for his failure to report to the DoPT. There have been other similar tussles in the past between the Centre and Tamil Nadu government (2001) and West Bengal government (2020) (Agnihotri, 2021), but when the States refused to relieve the concerned IPS officers, the Centre upheld the convention of State government concurrence and did not insist on deputing them anyway.

    Shortage of officers in the Centre

    The DoPT cites the shortage of AIS officers in Union Ministries as the driving factor for these proposed amendments since the ‘States are not sponsoring an adequate number of officers for Central Deputation’. While this is true, it is pertinent to note that State governments also have been suffering from a shortage of officers, especially during the pandemic and have requested the DoPT multiple times to increase the cadre strength of IAS officers (West Bengal, Rajasthan, Bihar).

    Senior IPS officers advise that the problem of shortage of AIS officers has been perennial and does not warrant a knee-jerk reaction at the cost of violating the basic structure of our Constitution. The problem of shortage must be seen as secondary to upholding the federal structure especially since there are other ways to address this problem without seizing the State governments’ authority. While only AIS officers come under the common purview of both the Central and State governments, there are other Central Services with ample human resources over which the Central government has sole authority and the shortage can be filled by deputing these Central services officers.

    The Empanelment Process

    The empanelment process of AIS officers in India has been infested with executive arbitrariness and a lack of transparency. The procedure for empanelment is laid down in the Central Staffing Scheme which does not have any legislative sanction and is instead governed by a slew of Executive Orders (E.O), the primary dated 5th Jan 1996 (NO.36/77/94-EO(SM-I)). The flawed Annual Confidential Report system was replaced by the Annual Performance Appraisal Reports (APAR) system following a Supreme Court ruling to ensure more transparency.

    However, the additional layer of review with the 360° appraisal system or the Multi-Source Feedback system introduced by PM Modi in April 2015 allows the panel to override the recommendations of the APAR system.

    The 92nd Report of the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in 2017
    reprimanded the 360° system for its opacity and lack of objectivity, thereby leaving the empanelment process ‘susceptible to manipulation’. Former Upper-level Secretaries have also been critical about the 360° system due to its

    ▪ Lack of transparency
    ▪ Absence of an appeal process
    ▪ Susceptible to bias and discrimination.
    (MS, 2018)

    The absence of legal backing for the empanelment procedure has led to the arbitrary exercise of power by the executive. Usually, officers start their career after training in State cadres and it would take up to 9 years for an officer to occupy Central government positions. But the present government has started a practice of appointing newly recruited officers, fresh from training, as Assistant Secretaries in the Union Ministries. Although this move was said to increase exposure for the new officers, it also may as easily be detrimental to their careers. This new pattern, initiated by the Modi govt, is characterised by a lack of transparency and establishing a core group of loyalist officers at the cost of building experience, knowledge, and performance. The loyalty of the officers of the civil services must be to the Constitution alone and not to any political party or even government of the day if it violates the constitutional provisions.

    Already, the AIS officers are in a bind where the State government and Central government are governed by opposing parties. The lack of fairness in the empanelment process has further discouraged and disheartened officers from Central Deputation. Although salaries and incentives remain the same, the State governments use transfers and postings as de facto punishment for AIS officers who do not follow suit with the State government’s decisions. Similarly, the Central government beguiles AIS officers with the temptation of post-retirement postings. The proposed amendments grant overreaching powers to the Central government which could be used to harass and corrupt an
    unwilling officer.

    Conclusion:

    In conclusion, the proposed amendments derogate the consent of State governments and the officer concerned. This not only gives rise to a lack of transparency and increased bias, but also has the potential to disintegrate the delicate federal structure that has been upheld since Independence. The Supreme Court has on many occasions emphasized that federalism is a part of the basic structure of our Constitution, and even a Constitutional amendment cannot do away with it. The Supreme Court has also affirmed cooperative federalism as a ‘cherished Constitutional goal’. Therefore, the Central government must look at other ways to overcome the issue of staff shortage, without granting itself overarching powers in direct violation of the Constitution.

    Recommendations:

    ▪ Recall the proposal amending the IAS (Cadre) Rules which will fundamentally damage India’s federal structure, thereby undermining national integrity and security.

    ▪ Shortage of officers can be addressed, in the short term, by recruiting suitable personnel from other Central Services such as IRS, Indian Defence Accounts service, Customs, etc. Alternatively, well-known professional experts in various fields can be inducted at senior positions, which will not only address the shortage but also the need for professional competence and experience in specialist departments as against the oft raised complaint of generalist nature of the IAS.

    ▪ Keeping in mind the demands of the Covid-19 pandemic, increase the annual intake of IAS officers to address the shortfall of 22 per cent in IAS posts.

    ▪ Increase Lateral recruitment for Central posts on a contract basis in the short term.

    ▪ The empanelment process, especially the 360° Appraisal system must be completely reformed to ensure equal opportunity and better transparency.

    ▪ The Centre’s proposal is a reflection of the long overdue need for the complete overhaul and reform of the Indian civil service system. These piecemeal amendments and a myriad of executive orders are not only unproductive to the civil service system but also counterproductive to the basic structure of the Constitution. A high-level committee should be established to undertake a holistic study to reform the Indian civil service system not only to bring in better performance and accountability but more importantly, to get rid of the colonial legacy once and for all.

    References:

    1. Agnihotri, S. (2021, June 4). Centre’s tussle with Bengal over chief secretary Reeks of uncooperative federalism. The Wire. Retrieved January 25, 2022, from https://thewire.in/politics/centres-tusslewith-bengal-over-chief-secretary-reeks-of-uncooperative-federalism

    2. Dev Dutt v. Union of India & Ors., (2008) 8 SCC 725

    3. Dhingra, S. (2021, June 7). Centre vs states, rules vs convention – who really controls IAS officers. ThePrint. Retrieved January 26, 2022, from https://theprint.in/india/governance/centre-vs-statesrules-vs-convention-who-really-controls-ias-officers/672013/

    4. Mishra, N. (2021, June 7). Explained: Chief secretary appointment controversy. TheLeaflet. Retrieved January 25, 2022, from https://www.theleaflet.in/explained-chief-secretary-appointmentcontroversy/

    5. MS, N. (2018, August 29). Why India’s civil servants are disaffected with the 360-degree empanelment process for top central government posts. The Caravan. Retrieved January 25, 2022, from https://caravanmagazine.in/government-policy/why-indias-civil-servants-disaffected-with-360-degree-empanelment

    6. Rajya Sabha, 92nd Report, Appraisal and Empanelment of Civil Servants under the Central Government, Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, August 2017, available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/92.pdf

    7. Saxena, N. C. (2022, January 24). Who should control where IAS officers serve? The Wire. Retrieved January 25, 2022, from https://thewire.in/government/who-should-control-where-ias-officers-serve

    8. Singh, V. (2022, January 20). States weigh options on IAS cadre rule changes. The Hindu. Retrieved January 25, 2022, from https://www.thehindu.com/news/national/states-weigh-options-on-iascadre-rule-changes/article38293886.ece

    9. The Quint, Centre proposes new IAS Cadre Rules: What are they? why are they being opposed? (2022, January 21). Retrieved January 25, 2022, from https://www.thequint.com/news/india/ias-cadrerules-mamata-banerjee-narendra-modi-centre-states#read-more

    10. Yadav, S. (2022, January 22). Explained: IAS officers and central posting. The Indian Express. Retrieved January 25, 2022, from https://indianexpress.com/article/explained/ias-cadre-rules-amendmentswest-bengal-explained-7734310/

    Featured Image: Press Information Bureau (PIB)

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  • How Representative is the Representative Democracy in India?

    How Representative is the Representative Democracy in India?

    India’s transition from an erstwhile British colony to an independent, sovereign state meant, for her people, a change in their status from being mere subjects to citizens bestowed with adult suffrage. The ultimate authority, therefore, now rests with the citizens. India’s large and complex population made it impossible for this authority to be discharged directly and therefore, the citizens elect their ‘representatives.’ This act of electing their representatives is called ‘elections’ and the set of rules that determine how the elections are conducted and the results ascertained is called the ‘electoral system.’ The electoral system adopted by the Constituent Assembly, through the debates on the constitution for the adoption of the parliamentary democracy, is a variant of the majoritarian system known as the ‘First Past The Post System.’ The fundamental principle underlying the system is that for the candidate, to cement his/her electoral victory, does not need a majority of the votes polled, but only a plurality of votes would suffice. The basis for the decision of the Constituent Assembly members to opt for the FPTP system lies in its simplicity and its promise of producing a stable government. Dr. B.R. Ambedkar when speaking in the assembly said, “Now, I have not the least doubt in my mind that whatever else the future government provides for, whether it relieves the people from the wants from which they are suffering now or not, our future government must do one thing, namely, it must maintain a stable government and maintain law and order. I am therefore very hesitant in accepting any system of election which would damage the stability of the government.”

    Legislative bodies aren’t merely law-making authorities, they are mini societies in themselves that reflect and react to the issues plaguing the citizenry at large. Labelling legislative bodies as mini societies emphasizes the fact that the composition of the representatives reflects the diversity of social groups and shades of opinion present within the country. The divisions and prejudices that exist in the Indian subcontinent based on caste, class, and religion were a primary point of reference for the members of the constituent assembly when debating over whether the various provisions of the constitution would be functional in the country. In this sense, the decision to choose the FPTP system over other electoral formulas signifies an attempt to alleviate the fears of the members of a further divided subcontinent. Yet, as we enter the 75th year of our freedom with entrenched unresolved issues, it brings us back to the question that the constituent members struggled with: how efficient and representative is the present electoral formula?

    Loksabha Elections – 2019

    Regional representation

     A post-election analysis by IndiaVotes showed that the two major alliances – National Democratic Alliance and United Progressive Alliance won 45.2% and 27.5% of votes respectively and the rest was shared among parties including All India Trinamool Congress, Yuvajana Sramika Rythu Congress Party, Biju Janata Dal, Bahujan Samaj Party, Telangana Rashtra Samithi and so on. With 45.2% votes, the NDA led by the BJP satisfied the requirements laid down by the FPTP allowing it to take charge of the government formation. However, what the vote percentage implies is that the current regime isn’t exactly a popular choice given more than fifty percent of the voters chose to vote against them. In their paper ‘Minoritarian Rule: How India’s Electoral System Created The Illusion of a BJP Landslide’, Macdonald and Moussavi call India a “minoritarian” democracy wherein ‘ a plurality of voters selects the majority of representatives in Parliament.’

    Furthermore, the success was concentrated within the states of central and western India which includes- Gujarat, Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar, Chhattisgarh, Maharashtra, and Jharkhand. These are also few of the states with the highest number of Lok Sabha seats- Gujarat (26), Uttar Pradesh (80), Rajasthan (25), Madhya Pradesh (29), Bihar (40), Chhattisgarh (11), Maharashtra (48) and Jharkhand (14). Given how diverse the country is culturally and linguistically, how do we compensate for the lack of the same in the union government?

    Minority representation

     The total minority representation in the 2019 Lok Sabha stands at 9.2%, including Muslims, Christians, Sikhs, and other religious minorities. This means over 90% of the MP’s are Hindus in a country where the minorities make up 19.3% of the total population (Census 2011).

    Kazi Syed Karimuddin when speaking against the efficacy of the FPTP system in the constituent assembly had feared the dilution of minority representation and had said, “Therefore my submission is that the present system as it stands does not guarantee a majority rule as people commonly suppose and does not guarantee a representation to minorities, not necessarily religious, even the political minorities.”  To this Dr. B.R.Ambedkar felt that while the country may not be ready for a complex electoral formula but to ensure minority representation he suggested reserved constituencies for the minorities as an alternative and in this regard, he said, “If any particular minority represented in this House said that it did not want any reservation, then it would be open to the House to remove the name of that particular minority from the provisions of article 292. If any particular minority preferred that although it did not get a cent percent deal, namely, did not get a separate electorate, but that what it has got in the form of reservation of seats is better than having nothing, then I think it would be just and proper that the minority should be permitted to retain what the Constituent Assembly has already given to it.”

    The Constituent Assembly finally decided on reserved constituencies for the communities of Scheduled Castes and Scheduled Tribes only.

    Reserved constituency

     The constitution has reserved 131 out of 543 seats for Scheduled Castes and Scheduled Tribes (84 for SC’s and 47 for ST’s). In the present Lok Sabha out of the 543 MP’s, 138 come from SC/ST communities implying that only 7 MP’s from SC/ST communities have been elected in unreserved constituencies. The situation would have been grimmer had their representation not been secured through reserved constituencies.

    The major loophole in the practice of securing representation through reserved constituencies with the use of FPTP is that it is the Non-SC/ST communities that majorly get to decide who the representative for the SC/ST communities would be. Given SC/ST populations are spread across regions rather than being concentrated in a few, it is then the dominant communities with their muscle and money power that decide on where the votes go. This keeps outspoken and assertive leaders from marginalized communities outside legislative bodies and in a way excludes these communities and their issues from mainstream political discourse. Hence, Macdonald and Moussavi observe, “District boundaries are therefore fundamentally important. Their shape determines the population size and ideological composition of the electorate facing each party.”

    Mainstream political discourse

     With FPTP’s ‘winners take all’ formula, it so happens that political parties restrict their discourse and activities to the interests of the dominant communities as they become the deciding factor in the contestants getting the plurality of votes. Douglas Amy in her paper ‘Proportional Representation: Empowering Minorities or Promoting Balkanization’ says, “The claim that winner-take-all elections are inherently more capable of bridging political divides does not bear up under scrutiny. For example, the requirement that winning candidates appeal to the majority of voters has done little to discourage factionalism. Indeed, it has merely encouraged candidates to attack minority groups to win over the majority.”

    This has not only further marginalized the already marginalized but also hinders the Socio-Economic and Political progress of the country as spaces for discussing “actual” issues shrink and real development can’t be equated to the progress and well-being of a minute population.

    Effect on voters

    Wastage of votes, a definite consequence of the FPTP system as it often discourages voters from turning up to vote. Furthermore, voters indulge in ‘tactical voting’ wherein instead of voting for a candidate/party who aligns with their values and ideals, they end up voting for one of the major parties or the lesser of the two evils whom they think have more chances of winning. In a way, the voter is making no real impact in the making of the government (Singh & Sharma, 2019).

    Conclusion

    The Law Commission, in their reports in the year 1999 and then again in the year 2015, had recommended that the government look into alternative electoral methods and examine how well they’d work out for the country. However, this has remained a recommendation only on paper with governments taking no active interest in the same. Carles Boix in his paper ‘Setting the Rules of the Game: The Choice of Electoral Systems in Advanced Democracies’ (1999) states that “as long as the electoral arena remains the same, and favours the ruling parties, the electoral system is not changed. If there is a change in electoral dynamics due to the coming of new voters or alterations in voter’s preference, then the ruling party reshapes the electoral setup to suit their choices.” Hence, we still do not see electoral reforms being a part of the mainstream political discourse. However, to make our political system more inclusive, diverse, and efficient, it is about time we give electoral reforms a serious thought.

     

    References

    Amy, D. J. (1995). Proportional Representation: Empowering Minorities or Promoting Balkanization? The Good Society, 5(2).

    Boix, C. (2000). Setting the Rules of the Game: The Choice of Electoral Systems in Advanced Democracies. SSRN Electronic Journal. Published. https://doi.org/10.2139/ssrn.159213

    Macdonald, G., & Moussavi, B. (2015). Minoritarian Rule: How India’s Electoral System Created The Illusion of a BJP Landslide. Economic and Political Weekly. Published.

    https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1949-01-04?paragraph_number=186%2C185%2C12%2C176%2C33%2C189%2C170%2C11%2C7%2C5%2C215%2C196%2C195%2C180%2C179%2C177%2C172%2C122%2C102%2C99%2C98%2C97%2C58%2C57%2C54%2C34%2C6%2C4

    https://www.indiavotes.com/alliance/partyWise/17

    https://scroll.in/latest/924583/elections-2019-bjp-alone-got-more-than-half-the-votes-in-13-states-and-union-territories

    https://en.wikipedia.org/wiki/List_of_constituencies_of_the_Lok_Sabha

    https://www.hindustantimes.com/lok-sabha-elections/from-faith-to-gender-and-profession-to-caste-a-profile-of-the-17th-lok-sabha/story-Mnp5M4pRX3aUji1UFFVy2N.html

    https://www.minorityaffairs.gov.in/sites/default/files/MsDP%20%28FAQs%29.pdf

    https://www.indiaspend.com/governance/reservation-scheduled-castes-tribes-representation-social-justice-755256

    https://theprint.in/opinion/17th-lok-sabha-looks-set-to-confirm-ambedkars-fears-no-vocal-dalits-in-parliament/232383/

     

    Image Credit: www.aa.com.tr 

     

  • e-SLA and the Delhi Act 2011 (Right of Citizen to Time-bound delivery of Services)- Policy Analysis

    e-SLA and the Delhi Act 2011 (Right of Citizen to Time-bound delivery of Services)- Policy Analysis

    Introduction

    As the functions of the modern welfare state expand and the dependency of citizens on it increases, its services must be delivered in timely manner. To this end, the Delhi government developed a robust policy. Through the Delhi Act of 2011 (Right of Citizen to Time Bound Delivery of Services), referred to as “the Act”, and the Delhi (Right of Citizen to Time Bound Delivery of Services) Rules, 2011 [“the Rules”], it has guaranteed timely delivery of 361 services.[1] Delhi is not the only state to confer such a right. However, in these other states, the enforcement of this right requires physical presence. Delhi has used an e-Service Level Agreement [“e-SLA”] to digitise the entire enforcement process. Digitisation has enabled greater accountability, performance review, and convenience, whilst also reducing the invested time and cost of every stakeholder. Thus, through this e-governance tool, Delhi has developed a ‘new ecology’ for the citizen-state relationship.

    In this paper, I will first provide a primer on both the Act and the e-SLA. In the second section, I will examine the constitutionality of the Act. Last, I will test the Act against the principles of good governance and citizen-centric administration.

    Understanding the Act and e-SLA

    The Act and e-SLA are deeply interrelated. While the Act defines the legal rights, procedures, and obligations, e-SLA is the mechanism for their execution. The Act comprises four major components: defined rights and corresponding liabilities, procedural prescriptions, the delegation of rulemaking, and the monitoring platform.

    Every citizen is conferred with the right to time-bound delivery of services,[2] and a liability of compliance imposed on government servants.[3] In cases of default, the government servant is liable to pay the compensatory cost of ₹10 per day for the period of delay, subject to a maximum of ₹200 per application.[4] Correspondingly, citizens are entitled to recover the compensatory costs.[5]

    The Act makes three different but interrelated procedural prescriptions. First, it provides the appointment process, eligibility criteria, and powers of the “competent officer”.[6] He/she must not be below the rank of Deputy Secretary or its equivalent rank and is empowered to impose a compensatory cost on the defaulting government servant. Second, it establishes the procedure governing fixation of liability.[7] If there is a delay, the aggrieved citizen can approach the competent officer, who immediately pays the cost that has been automatically calculated by e-SLA.[8] At a second stage, the officer issues show-cause notice to the concerned servant. If justifiable grounds exist, then the payment is debited from the government exchequer. Otherwise, it is reimbursed from the concerned servant. Third, it prescribes the appointment process, eligibility criteria, and powers of appellate authority as well as a 30-day time limit for filing an appeal. He/she must not be below the rank of Joint Secretary or its equivalent rank and has final authority on the matter.[9]

    The Act provides for delegation of legislative authority in two senses. There is a power to make rules,[10] and the power to remove difficulties.[11] However, the exercise of these powers is subject to Parliamentary scrutiny.

    It is the duty of departments and local bodies to process the application of every citizen and provide an application number. Furthermore, these authorities are obligated to maintain and update the status of applications online.[12] The e-SLA monitoring system has been designated as an online database.[13] To the government, it provides detailed information on the number of disposed or pending cases, which helps in performance evaluation and corrective measures. To the citizens, it provides online facility to track their applications.[14] The information flow is explained below:

     

    Figure 1: Information flow between government officials under e-SLA

     

    Figure 2: Information flow between government officials and citizens under e-SLA

     

    Constitutionality of the Act

    The Constitution provides certain safeguards to “civil servants”.[15] At the outset, it must be noted that these employees are only a sub-set of the “government servants” defined in the Act.[16] Thus, the applicable scope of protection, if any, is not to the entire class of employees enumerated in the Act, but only to civil servants.

    The legal issue herein is the constitutionality of imposing a compensation cost on the civil servant. This is a two-fold question:

    1. Whether there is the power to impose such a cost?

    Appropriate legislatures are empowered to regulate the service conditions of civil servants.[17] As the cost relates to a service condition (i.e., timely delivery), the Delhi Legislative Assembly was empowered in imposing it.

    1. If so, has this exercise violated any constitutional safeguard?

    However, this power is subject to constitutional safeguards guaranteed under Article 311.[18] The protection offered under Article 311(2) is exhaustive and with specific reference to the imposition of three penalties: dismissal, removal, and demotion.[19] Accordingly, the imposition of compensatory cost on the civil servant is beyond the scope of three-fold protection offered by Article 311. Thus, no constitutional safeguard has been violated herein.

    As the imposition of compensatory cost on the civil servants is both within the power and compliant with safeguards, it is constitutional.

    Testing the Act against principles of Good Governance and Citizen-Centric Administration

    Governance refers to the process of decision-making, and the process of implementing those decisions.[20] Good governance is when these processes are tested against a normative standard. Citizen-centric administration refers to governance that places citizens at the centre of all administrative functions.[21] In this section, I will use the characteristics of good governance and the principles of citizen-centric administration as a collective standard[22] to analyze the process of formation and implementation of the Act, its Rules, and e-SLA.

    Assessing Compliance in Formation and Implementation

    a) Participatory. In the absence of statutory provisions, the administrative authorities are not bound to comply with any procedural norms, including notice and prior consultation with the interested parties. The Delhi Act, 2011 does not provide for any such consultation or ante-natal publicity. In the process of policy-making, there was participation only from the relevant government ministries and departments. The government did not take any active steps to broaden consultation to stakeholders such as the civic society organizations, labour unions, or even the general public.

    The lack of participatory policy-making has directly impacted its awareness and enthusiasm among citizens. It was found that only 50% of the people know that their unique ID can be used to track their applications online. Further, only 15% of the people used their ID to track their application.[23]

    b) Transparency. The e-SLA allows for complete transparency to the citizen as to the status of all his applications. The information is not only easily comprehensible but also accessible. However, the transparency does not extend to releasing statistics of operations to the public domain. Currently, these statistics, such as the figures on the number of applications, pendency, disposal rate, performing/underperforming departments, are accessible only to government officials.[24]

    c) Responsiveness. The e-SLA system does not provide for any feedback mechanism. Thus, there is no avenue for the citizens availing these services to share their experiences. As feedback is the basis on which the system continually improves, this deficiency hinders the potential effectiveness of e-SLA.[25]

    1. Accountability

    The right to time-bound service delivery through the mechanism of compensatory cost has, in theory, ensured that the government and its officials are accountable to citizens. This is buttressed by the fact that the Act seeks to develop a culture of timely delivery among the government servants by additionally punishing habitual offenders and providing cash incentives for those without a single default in a year.[26] However, the liability of government servant has been capped at ₹200, compared to other state legislation that penalizes in thousands. Further, the cash incentives are only up to ₹5000. Thus, the quantum is inadequate to cause attitudinal changes in the servants.

    Moreover, there is no culture among public servants to hold their non-performing colleagues in disrepute.[27] There is no indication that this non-performance is factored into promotions. Anyhow, such public servants are typically complacent and not seeking promotions. The security of their present job and status is adequate incentive to persist with present behaviour. Thus, promotions and reputational loss among peers are not adequate incentives for performance either.

    Furthermore, by releasing all relevant statistics of operations to the public domain, the government can broaden its accountability. These statistics can be used by stakeholders, such as news and media agencies and policy think-tanks, to supplement the government in identifying issues and corrective measures. This would also pressurize the government to be more proactive.

         2.  Consensus orientation

    Through reasonable and extensively deliberated timelines, the Act sufficiently balances the interests of citizens in securing timely delivery with the government’s limited capacity.

         3.  Effectiveness and Efficiency

    The usage of e-governance to guarantee the right to public service is a revolutionary process reform. This must be gauged at two levels:

    • For the citizen, this system has reduced the number of physical visits required, thus saving time and cost. In a survey, 66.6% reported that they are not required to visit government offices more than once after submitting their applications.[28]
    • For the government, it eliminates systemic errors and inefficiencies.[29] The statistics help in assessing performance and preparing corrective action.[30] However, if the system can track internal departmental processes too, it would allow determining the exact level at which service delivery is being delayed. Furthermore, the Act ignores the quality of timely delivered services.[31] To provide a comprehensive right to public service, the legislature must develop standards to assess the quality of services rendered on time.

     

        4.  Equitable and Inclusive

    Under the Act, while the citizen is immediately compensated, the government servant is not immediately penalized for default. The procedure allows him/her to provide justified grounds that could excuse liability. For greater inclusivity, the government can prescribe a pro-rata calculation of the penalty. As the amount is automatically calculated by e-SLA, even complex formulas are acceptable.

       5.  Rule of Law

    The Act provides for a fair legal framework and impartial enforcement.

    Conclusion

    Executing the right to time-bound service delivery through an online portal is truly revolutionary. It has emerged as model legislation for other governments. The Act is constitutionally valid. However, when tested against standards of good governance, this policy suffers from problems of non-participation, transparency, responsiveness, accountability, and effectiveness at the government-level. But it scores par excellence on the principles of consensus orientation, effectiveness at the citizen-level, inclusiveness, and rule of law. To embrace the truly revolutionary potential of this policy, the government must make the suggestions recommended in the last section of the paper, vis-à-vis each principle.

     

    References:

    [1] IANS, ‘245 services brought under Delhi time-bound delivery act’ (Business Standard, 24 August 2014) <https://www.business-standard.com/article/news-ians/245-services-brought-under-delhi-time-bound-delivery-act-114082400707_1.html> accessed 17 January 2021.

    [2] The Act, s. 3.

    [3] The Act, s. 4.

    [4] The Act, s. 7.

    [5] The Act, s. 8.

    [6] The Act, s. 9.

    [7] The Act, s. 10.

    [8] The Rules, r. 4(1).

    [9] The Act, s. 11(1).

    [10] The Act, s. 15.

    [11] The Act, s. 16.

    [12] The Act, s. 5.

    [13] The Rules, r. 2(c).

    [14] Arjun Kapoor & Niranjan Sahoo, India’s Shifting Governance Structure: From Charter of Promises to Services Guarantee (ORF Occasional Paper No 35, 2012).

    [15] Constitution of India 1950, Art. 309, 310, 311.

    [16] The Act, s. 2(g).

    [17] Constitution of India 1950, Art. 309.

    [18] Union of India v. S.P. Sharma (2014) 6 SCC 351.

    [19] Yashomati Ghosh, Textbook on Administrative Law (1st edn, Lexis Nexis 2015) 416.

    [20] UN Economic and Social Commission for Asia and the Pacific, ‘What is Good Governance?’ <http://www. unescap.org/sites/default/files/good-governance.pdf>.

    [21] Ghosh (n 19) 14.

    [22] Second Administrative Reforms Commission, Citizen-Centric Administration (Report No 12, 2009) p. 8.

    [23] Audit of Functioning of Government of Delhi’s e-SLA Scheme, by Management Development Institute, Gurgaon (2012).

    [24] Ibid.

    [25] Rohit Sinha, ‘Delivering on service guarantee: A case of Delhi’s e-SLA’ (ORF, 29 December 2012) <https://www.orfonline.org/research/delivering-on-service-guarantee-a-case-of-delhis-e-sla/> accessed 17 January 2021.

    [26] The Act, s. 12.

    [27] Kapoor & Sahoo (n 14); Amit Chandea & Surbhi Bhatia, The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011 (CCS, 2015) p. 25-26.

    [28] Sinha (n 25).

    [29] Chandea & Bhatia (n 27).

    [30] Ibid.

    [31] Kapoor & Sahoo (n 14).

     

    Image Credit: Forbes India

  • The DNA Bill And State Capacity

    The DNA Bill And State Capacity

    Aristotle suggested that transmission of heredity was essentially the transmission of information. And this information was used to build an organism from scratch inside the female womb. Although the science is primitive, he was right in how information is transmitted from parents to their offspring. Modern genetics is built on studying such information, which has been coded into each cell as DNA. Scientists can now sequence the DNA and extract valuable information about each individual and the human species. They have been able to use such information to understand humans better; for example, the identification of BRCA mutation responsible for cancer has nudged great strides in cancer biology. Another important application which has varied implications in society is the use of DNA in forensics. Although already in use since its discovery in 1995, the exponential rise in the significance of information extracted using DNA Profiling warrants regulation.

    All major nations which use DNA Profiling have legislation in place to regulate the use of the technology. However, in India, the technology is unregulated even though successive governments have worked on such legislation since 2003.

    DNA Technology Bill

    All major nations which use DNA Profiling have legislation in place to regulate the use of the technology. However, in India, the technology is unregulated even though successive governments have worked on such legislation since 2003. If global examples are not enough, the 2017 Puttaswamy judgement has made such legislation necessary. The judgement asserted that privacy is a fundamental right guaranteed by the Indian Constitution and that the right to privacy includes protection over the physical body. Therefore, for the State to collect or store DNA data, a legislative mechanism principled on necessity and proportionality is requisite.

    DNA testing is being done on a very limited scale in India. About 30-40 DNA experts are working in 15-18 laboratories. They can process only about 2-3% of the total need, and even such limited testing is unregulated and unmonitored. According to the NCRB data for 2018, although 85% of rape accused have been charge-sheeted, the conviction rate for rape is just 27.2%. This technology, however, has an excellent record of increasing conviction rates; for example, a 2006 UK parliamentary report suggested that detection of crime increased from a mere 26% to a healthy 40% after they loaded DNA samples into a national database. Apart from crime detection, the technology will also help in the identification of over six million missing persons in India. Thus, legislation facilitating DNA technology to help expedite justice is long overdue.

    The DNA Technology (Use and Application) Bill 2019 is the latest form of the DNA bill and is at the parliamentary committee stage for further deliberations. The bill talks of a national DNA data bank and a DNA regulatory board to store DNA data and regulate DNA technology used in criminal and civil cases. The bill in its current form has raised many concerns including privacy issues concerning the use of DNA data, the ‘perfunctory consent’ clause which makes it hard for an individual to deny permission to collect his/her data, ethical issues in collecting and storing DNA data in DNA banks, the fear of caste-based criminal profiling because of the endogamous nature of Indian society and so on. But the biggest concern is one of state capacity, which in a way umbrellas other concerns.

    The bill in its current form has raised many concerns including privacy issues concerning the use of DNA data, the ‘perfunctory consent’ clause which makes it hard for an individual to deny permission to collect his/her data, ethical issues in collecting and storing DNA data in DNA banks, the fear of caste-based criminal profiling because of the endogamous nature of Indian society and so on.

    Problems with State Capacity

    In young nations like India, the State, although large and bloated, is not highly efficient. This may cause even government interventions with noble intentions to backfire. Therefore, it is necessary to identify places where a lack of state capacity could cause worry for the legislation to work effectively.

    We could sum three basic concerns up from the DNA Technology bill concerning state capacity. First, the high cost of technology and the lack of basic technical training regarding data collection in a crime scene. Second, the backlog burden in the Justice system. And finally, the lack of clarity in the bill as to what is being collected and stored.

    The India Justice Report 2019 published by Tata Trusts reveal important information on the Justice system in India. Over the last five years, only 6.4% of the police force has been provided in-service training. For advanced technology like DNA fingerprinting, frontline police should have basic training and knowledge of the technology. It starts with how to read and deal with the crime scene. And without awareness, the technology cannot be exploited desirably. To go from training 6.4% to at least half the police force will be a herculean task which should be contemplated before implementing the legislation. The DNA bill gives the responsibility of developing training modules to the DNA Regulatory Board, which will be set up. But it does not provide a realistic road map to reach the desired level of training to better use the technology.

    The report also suggests that on average, per capita police spending in 2017 was Rs 820. No big or medium-sized state has spent more than Rupees 1160 per person, and Bihar has spent as low as Rupees 498. Only one state has made 100% use of the modernization funds allocated for capital expenditure and technology up-gradation. But DNA fingerprinting technology is a costly affair. Each test could cost as much as Rupees 10,000. Even if only high-profile cases use DNA tests, a robust database of DNA has to be present for effective identification from the three indices mentioned in the bill. And such collection and storage of DNA samples could become another strain in the public exchequer. The bill also mandates the use of DNA testing for criminal as well as civil cases, which could again flood the system.

    Second, DNA technology could increase the backlog burden of the already burdened system. In the US, with relatively strong state capacity, DNA backlogs are in the thousands. The National Institute of Justice (USA) reports that the current backlog of rape and homicide cases is 350,000. It also estimates that there are ‘between 500,000 to 1 million convicted offenders’ samples that are owed but not yet collected’. The FBI has a backlog of approximately 18,000 convicted offender samples. Therefore, in India with an already strained Justice system, DNA backlogs could cause worry. Also, because of the significance of DNA information, backlogs could also invoke privacy concerns.

    Finally, there is a lack of clarity. This concern, however, is not one of lack of state capacity but one of potential overreach by the State.

    The lack of strong data protection legislation in place couples such concern. As the parliamentary committee suggests, the bill can also be termed ‘premature’ regarding data protection.

    Non-coding DNA is used for identification. The bill, however, does not restrict DNA Profiling to only use non-coding DNA which cannot be used for determining personal and medical characteristics. Given that the bill mandates data from all criminal and civil cases to be stored in the National data bank, concerns of privacy impingement cannot be hushed away. The lack of strong data protection legislation in place couples such concern. As the parliamentary committee suggests, the bill can also be termed ‘premature’ regarding data protection.

    Although the bill is creating a strict code of ethics regarding collection, storage and accessibility of DNA information, it is ambiguous on the removal of data. Clause 31(3) says that DNA data will be removed if a person requested in writing to the DNA bank, given that such a person is ‘neither an offender nor a suspect or an under-trial’ and whose DNA information has entered the bank ‘through crime scene index or missing persons’ index’. But it is not clear on what will happen if they do not remove such data. It is important to answer these questions due to the significance of DNA information and the fact that the bill does not restrict banks to store only non-coding DNA. Also, these questions could raise concerns about state capacity in safeguarding important data of its citizens.

    Conclusion

    To address these concerns, building state capacity is the key. A staggered implementation of DNA technology could help in building capacity and credibility for the technology. For example, if the bill provides a roadmap of implementation- say, starting with addressing the identification of missing persons and further developing capacity for criminal and civil investigation, the allocation of resources could be streamlined. This limited implementation could also help in addressing additional issues that could arise during implementation. These details cannot be let out to be decided by a regulatory body because of the importance of DNA data and the breach of fundamental rights in collecting and storing it.

    It is said that one has to cross the river by feeling the stones. The stable rule of law and a robust data protection regime which will make sure the technology is used judicially are basic requisites for technology with societal implications. Even though DNA profiling has huge potential to expedite justice, implementation of such complex technology has to be step by step. The Parliamentary Committee on Science and Technology has been scrutinizing the bill rigorously, contemplating the varied problems that might befall the implementation of the bill. But it remains to be seen if the government will heed to such advice and not dismiss them altogether; that is if it will feel the stones or deep dive into the river without contemplating the consequences.

     
    Image Credit: DNA Helix Material – Gerd Altmann from Pixabay

  • Vocal about Local: Empowering local Governance Structures to deal with the Pandemic

    Vocal about Local: Empowering local Governance Structures to deal with the Pandemic

    Urban centres in times of the Pandemic 

    India is a rapidly urbanizing state. The 2011 census estimates that 31% of Indians live in urban areas. It counts 4041 statutory towns, 3892 census towns and 474 urban agglomerations as urban areas. These numbers however are quite outdated in 2020 and also there is considerable consensus among experts that there is an underestimation of urban spaces owing to the outdated definition of ‘urban’ in India. For example, the Joint Research Centre (JRC) of the European Commission, based on satellite data, reports that at least 54% of India’s population lived in cities or large urban areas in 2015 and the World bank using the Agglomeration Index finds out that 55.3% of India’s population lived in urban-like spaces in 2010. Regardless, the fact remains that these urban spaces should be governed democratically with the spirit of the 74th amendment. The COVID-19 situation further reasserts the importance of such governments and their role in Indian society.

    Cities and urban spaces have emerged as hotspots of the Coronavirus. It is from the cities that the coronavirus subsequently spread to other rural areas.

    Cities and urban spaces have emerged as hotspots of the Coronavirus. It is from the cities that the coronavirus subsequently spread to other rural areas. Throughout history, pandemics have originated and perpetuated from cities, therefore it is not irrational to predict another pandemic perpetuated from cities in today’s close-knit global village. This warrants a greater need to safeguard the cities which are the essential links that connect nation states to the globalized world. The first step in this direction would be to empower urban governments for efficient crisis management and prevention of communicable diseases by assuring basic public goods.

    Subsidiarity

    The principle of subsidiarity advises that the Central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level. The principle therefore asserts the sovereignty of the citizen in a democracy and places her at the center of decision making.

    In line with the principle, everything that can be done better locally, including providing basic services like safe drinking water and ensuring public goods like clean air, should be done by the local governments. The rationale being that, one, it increases efficiency and promotes self-reliance; two, it provides legitimacy to democracy and three, it creates awareness among people and develops responsible citizens. And another obvious reason is that it is most effective in understanding the local problems and in ensuring a pragmatic feedback loop.

    All these reasons become much more clearer in times of crisis such as the Covid-19 pandemic when local assessment and rapid service delivery become difficult. Urban Local Bodies (ULBs) neither have properly delineated functions to perform nor do they have the finances to do so. The 12th schedule of the Indian Constitution lists a group of 18 subjects on which the local governments can act upon, but only if the States ‘may’ wish to assign those functions by virtue of another State legislation. Even when legislated, States usually encroach into the domain of the purview of the local governments.

    The Veerappa Moily commission’s sixth report dealing with local governance sums it up perfectly.
    “Confusion, unnecessary duplication, inefficiency, wastage of funds, poor outputs and outcomes are the result of this organisational jungle. The local organisations which should be the ones most directly and fully concerned are at best treated as a small part of the implementation, occasionally consulted but, in most cases, by-passed and ignored”.

    Furthermore, the establishment of parastatals has reduced the functions of the local governments. The Parastatals perform specific functions which are supposed to be performed by ULBs and are accountable only to the State government thereby circumventing the ULBs. In addition, the Union government also takes a share of the implementation space with centrally sponsored schemes thereby making proper delineation of powers impossible for ULBs.

    The Veerappa Moily commission’s sixth report dealing with local governance sums it up perfectly.
    “Confusion, unnecessary duplication, inefficiency, wastage of funds, poor outputs and outcomes are the result of this organisational jungle. The local organisations which should be the ones most directly and fully concerned are at best treated as a small part of the implementation, occasionally consulted but, in most cases, by-passed and ignored”.

    Now, when experts ask for decentralized governance to efficiently deal with the pandemic and to decentralize decision-making regarding lockdown measures, all they get is a dysfunctional organisation jungle where local governments do not have the wherewithal to function as self-governing institutions.

    Disaster Risk Reduction

    Strong local governments are of great importance, especially during disasters and pandemics. Experts suggest that a sound bottom-up governance approach has been more successful in the wake of disaster response. For instance, in a UNDP study on disaster risk reduction in Bangladesh, they point out the importance of local governance.

    The report suggests that local governments are crucial because they ‘play the greatest role in sustaining ongoing, participatory disaster risk reduction at local community level’. The report goes on to summarize that the key lesson learnt from the study is that decentralization of authority and decision making is essential to effectively deal with the disaster.
    “Decentralization of authority to local governments is vital to ensure local ownership of disaster risk reduction and the local implementation of the Hyogo Framework for Action. Local authorities should have the responsibility of implementing disaster risk reduction, and be accountable to the community they represent in doing so”.

    Much has been written about why governments closer to the people are more effective but what is equally important is that when decision making is decentralized, citizen satisfaction and responsibility is increased (for example, see this study done in Indonesia). This becomes important in times of the Covid-19 pandemic where individual responsibility is necessary to stop the spread of the virus. Also with lives and livelihoods pitted against each other, citizen satisfaction is important to make hard decisions which might deter personal freedom in the short term.

    Considering all this, the National Disaster Management Act, 2005, which was used by the Union government to impose lockdown measures, seems to lack the involvement of local governments in disaster risk reduction. V N Alok in his article for the Financial Express, deals with this complaint. He argues that there is only a passing reference to local government in the Act and even when referenced, functions are mostly subsidiary to the District authority headed by the Collector/Magistrate which is controlled by the State government. On the other hand, there is no ambiguity in assigning functions to the State and Union governments.

    India is often referred to as the ‘flailing state’, which is strong and sound in the centre, with no reliability at the grass-roots. Local governments can provide the missing link that could hinge the State to the people.

    This again echoes Veerappa Moily Commission’s concern that there is no proper delineation of powers for the local governments. Article 243 N and 243 ZF mandated that all laws inconsistent with parts IX and X of the Indian constitution shall be changed accordingly within a year of passing the 73rd and 74th Amendments. But most States have still not identified and changed all statutes conforming to the idea that local governments are self-governing institutions. This shows India’s hesitation to look at local governments as self-governing institutions capable of dealing with problems.

    India is often referred to as the ‘flailing state’, which is strong and sound in the centre, with no reliability at the grass-roots. Local governments can provide the missing link that could hinge the State to the people.

    Its importance is felt during the pandemic more so than ever, especially in cities where the institution is weak compared to rural India. An integrated approach, with involvement from the local government, would prove to be more effective than centralized decision making. But before relying on ULBs and locally elected leaders, they have to be empowered-politically, functionally and financially. The first step towards such empowerment could be by including local governments in conversations regarding governance and decision making; to be more vocal about local governments.