…but this much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.
There is more to the Supreme Court verdict on fixed tenure for civil servants than meets the eye. The courts are increasingly venturing into the domain of legislature and this can have undesirable consequences.
The recent verdict by the Supreme Court prescribing fixed tenure for the civil servants and also directing the center and states to constitute a Civil Services Board(CSB) for handling transfers, postings and promotions has been hailed as a major administrative reform in some quarters. Though this order might come as a relief to the honest bureaucrats who are transferred frequently, there are serious issues with this Judgment that challenge the very democratic principles and legislative authority of the Parliament.
First, it is not clear as to how a Public Interest Litigation (PIL) of this nature is maintainable under Article 32, which is a judicial safeguard for enforcement of rights. As much as they are desirable, administrative reforms are not “statutory rights” of a citizen. The petitioners are few individuals who claimed to know what “public interest” is and asked the court to issue binding orders to the legislature. In a democracy public interest is represented by the elected legislators and it is befuddling as to how few individuals, no matter how good their intentions are, can typecast their interests or views as larger public interest.
Second, the legal reasoning behind the Judgment is not very clear. The court seems to have relied heavily on various Administrative Commission reports. There is a passing reference to Prakash Singh and Others v. Union of India (2006) and according that Judgment the Supreme Court is empowered to issue orders of this nature according to Article 32 read with Article 142. As explained brilliantly by Dr. R Prakash, Article 146 can be invoked for procedural purposes only and it does not confer on the Supreme Court any powers to make laws or to order the legislature to make new laws.
Third, with due respect to the Supreme Court, by directing the parliament to make laws it is clearly undermining the legislative authority of the parliament. If we examine closely, it appears as if the primary legislative power in this case is with Supreme Court and in the form of a delegated legislation it has asked the parliament to make a new law. Though the intention may not be this, but clearly, by directing the parliament to make new laws, the court is assuming the primary legislative power for itself and it has serious consequences. That the court is using this power very rarely is not a valid argument for using it even once.
Fourth, the Supreme Court gave similar orders in Prakash Singh(Supra) regarding police reforms, directing the state governments to implement their order in six months but none of the states have actually implemented these orders even after seven years. Assuming that power comes with responsibility and accountability, is it appropriate for the honorable court to issue orders which are not enforceable and shouldn’t the court take responsibility for not being able to enforce their own orders?
Fifth, while none can deny that frequent transfers of honest officers is a serious issue, this fix seems to make the matters even worse when we look at it in the spirit of democratic principles. It is strange to assume that a Minister should not be allowed to even have a secretary or bureaucrats of his choice. There can be procedural safeguards to protect the bureaucrats from arbitrary transfers but having a rigid fixed tenure may also prevent ministers from selecting the best officials they are comfortable to work with.
Finally, any administrative reforms should come through a proper legislative process. Some of the states may not be in favor of these reforms and the process of consulting and consensus can be painfully slow. But that is the only option that we have and if Judiciary assumes the role of legislature then as Justice V. Ramaswam had said in Union of India and Another Vs Deoki Nandan Aggarwal, it may lead to “naked usurpation of legislative power”. To quote:
The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.