In a recent judgment passed by the Supreme Court (‘SC’) in TSR Subramanian v. Union of India, the SC sought alleviate to the political pressure faced by the bureaucracy in their everyday functioning. The order directed the Centre and State governments to ensure that tenures of the officers are fixed through establishment of independent Central Services Board (‘CSB’) and that all orders are communicated on paper, rather than orally.
The petitioners were some eighty odd retired bureaucrats who themselves were on the receiving end of the misfeasance by political leaders in governance and policy matters. Although this was much appreciated by the incumbent bureaucracy, the political class themselves clubbed this judgment by the SC as another instance of judicial overreach by the courts.
Much has been written and deliberated about the importance of separation of powers doctrine; however, a prerequisite to the smooth functioning of such constitutional institutions is non-interference and efficiency in decision making. The petitioners alleged that the political interference in the functioning of the executive had reached such an extent that honest bureaucrats were harassed and often transferred at the whimsical liberty of the politicians. Further, the decision making process was opaque due to oral instructions, orders and proposals which often led to arbitrary pressure from businessmen, politicians and administrative seniors. This was a clear interference by the politicians on the powers of the executive. The SC in its judgment instructed that all the transfers of civil servants should be mandated CSB, comprising of senior bureaucrats. They further instructed that the legislature pass a law to the effect.
A strict interpretation of the separation of powers doctrine obligates non-interference. This duty of non-interference has to be respected by all the institutions in unison. One cannot expect the legislature to interfere in the functioning of the executive and expect non-interference from the judiciary. The constitution does not expressly provide for separation of powers between the legislature, executive and the judiciary. There are instances of overlap, for example, the promulgation of ordinance by the President [Art. 123(1)], the appointment of judiciary by the executive [Art. 124, 126 &127] etc, but these provisions are used in emergency and maintain independence in functioning.
Judicial overreach and judicial activism itself are negative connotations. Ideally, in a democracy such encroachment of power would create administrative imbalance, but in our country the legislature has become so incompetent that the judiciary has to compensate for its ineptitude. The degrading intellect of the legislature and unwillingness to work a better society necessitates overreaching action from other institutions of the democracy. A stark example of legislature indifference to important matters can be derived from the legislature performance over the years. The progressive Right to Education Act was passed when only seventy-seven members of the Lok Sabha were in attendance. The judiciary, whose paramount obligation while interpreting laws is to look at the legislative intent behind the enactment of a law, can hardly decipher the intent with such abysmal attendance.
The judiciary has started questioning the policy standards (2G scam case) and has either legislated on several matters or has asked the legislature to legislate expeditiously (Vishaka v. State of Rajasthan, commonly known for the formulating guidelines against sexual harassment at work place). The falling standards in the legislature have necessitated judicial intervention in matters that were earlier outside their jurisdiction. Similarly, in TSR Subramanian v. Union of India, the SC asked the government to legislate a law under Art. 309 to setup a CSB in every state to handle the grievances of the bureaucrats and to perform functions relating to transfers, empanelment and promotions.
The judicial intervention in such matters has become increasingly important as it the only institution in our democracy where words such as constitutional morality, upholding the rights, duty and obligation etc. are still used. The argument against such progressive judicial interventions has been that judiciary is trying to accumulate as much power for itself in a tug of war that the legislature is clearly losing. However, in this case the judiciary has done nothing to amass power for itself; rather it has empowered the executive to make its own decisions by unleashing it from political control. It is time the legislature takes note of the judicial intent behind the judgment and acquaints themselves with moral obligations that it owes to our democracy. Cleansing the bureaucracy is a step towards the welfare state that India aspires to be.
This post has been authored by Shashank Singh, a second year student at the West Bengal National University of Juridical Sciences and memeber, NUJS Constitutional Law Society.