Public bureaucracy and judiciary

What is writ jurisdiction?

The exercise of writ jurisdiction reduced to its simplest term involves judicial review of executive actions. The basic requirement is that a person must be brought to grief by executive actions that are violative of fundamental rights guaranteed by the Constitution. However, more recently the requirements of any person being aggrieved by executive actions or inactions have been further extended to include the concept of public interest litigation. The concept of public interest litigation is said to be recognised under the Indian Constitution. However, in recent times, the Supreme Court has recognised this concept to extend to matters involving public interest. In such cases, High Court gives directions to the government and the major examples include cases relating to protection of environment, public health and protection against eviction of slum dwellers.

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More recently the case of mass arrests in course of much talked of April 30 deadline also had attracted the writ jurisdiction. The High Court is understood to have called upon the government to account for the actions relating to mass arrests through the application of a specific provision of the law relating to Dhaka Metropolitan Police (DMP). DMP first applied the much controversial section 54 CrPC. Later, it opted for the relevant provision of DMP law. It is not known if the government had shown cause. What is material, however, is the fact that in such cases the relevant members of the public bureaucracy are called to account. Political functionaries at whose behest actions are taken remain immune from accountability for such actions.

Protection to civil service

Available evidence indicate that civil servants have themselves sought the protection of the High Court through writ petitions. Such petitions arise out of arbitrary manner of executive decisions taken that affect civil servants mainly in matters relating to promotion, transfer, disciplinary proceedings and/or premature retirement. Viewed in this context, the higher judiciary acts as a shield that prevents arbitrary actions against civil servants. There is also the other side of the coin.

The perils of contempt of court

The other side of the coin relates to the perils of contempt of court to which civil servants are exposed. Such cases arise out of violation of court orders. There are instances in which secretaries to the government had to face the charges on account of contempt of court. Many such cases relate to release of abandoned houses.

The rules relating to the contempt of court are very severe. Prior to the mid-seventies, in such cases the government could provide for the cost of legal defence of a civil servant. During the mid-seventies it was ruled by the Supreme Court that in cases involving civil servants charged with contempt of court, they would have to arrange their own defence at their own cost. The ruling relating to legal defence, however, provides that in the event a civil servant is exonerated from the charge, the cost incurred by him would be reimbursed by the government.

The above cases clearly indicate that a line must be drawn in terms of the accountability of a minister and a civil servant in such and other similar cases. The cases also indicate either a general lack of respect on the part of ministry for the judiciary or the ministers' inability to realise the implications of not implementing court's order.

The rules of business

The question of accountability of the members of public bureaucracy has to be seen in the changed context as embodied in the rules of business. Prior to 1989, the secretary to the government used to be designated as the official head of a ministry or a division. He could dispose of files without reference to the minister in case of urgency but was required to keep the minister informed of decisions so taken in the absence of the minister. Since then the rules have changed.

The rules of business (1996) designates the secretary as the administrative and not the official head. Further, in matters relating to transaction of business in a ministry or a division, the secretary is required to dispose of case by or under the general or special directions of the minister-in-charge. It is not known in how many contempt cases, a permanent functionary of the government, after 1996, had to face contempt charges even though he was not in fact responsible for violating a court order but had to wait for ministerial approval by which the deadline set by the High Court had expired.

Fallout of Dhaka-10 by-poll

An English daily published a news item titled 'Civil servants not willing to appear in court' (The Daily Star, July 14, 204). It was reported that the four top government officials, facing contempt of court charges for violating court orders to deploy army for Dhaka-10 by-poll were unwilling to appear in person in the High Court and sought a stay on their personal appearance order. The unfortunate four are: principal secretary to the prime minister, home secretary, defence secretary and acting principal staff officer of the armed forces division.

In seeking the stay order, the counsel on behalf the four officials contended that (a) they needed to be in their offices as they deal with important public matters, (b) public interest would suffer if the officials appeared before the court leaving their offices, (c) the entire case needed to be looked into as to whether the officials violated the court order deliberately or whether this was done to degrade the judges and (b) the court could summon the officials after the report, already sought for by the court, was received from the Election Commission.

The lawyer for the opposite party argued that if the four did not appear before the court, it would reflect their disregard for the court. It was further argued that in the South Asian countries, prime ministers and ministers, not to speak of secretaries appeared before court in person leaving aside their important business. It was further argued that there was no VIP in the eyes of law.

It is said that the judge of the Appellate Division of the Supreme Court had referred the case to the Chief Justice for hearing by a full bench. The President of the Supreme Court Bar Association told the journalists that 'the four officials have violated court orders by not deploying army as directed and now they are going to do the same by trying to obtain a stay on the HC rule'. He further said: "It is a shameful precedent".

What is the precedent?

As far as is known, in all previous cases, secretaries to the government whose personal appearance was demanded by the court, willingly complied with the directives. On the very first day of appearance, a prayer used to be made by their lawyer to exempt them from all subsequent hearings in order not to disrupt the disposal of day to day public business. The prayer was never refused. Such a compliance was symbolic of the respect due to the courts of law as institutions. The reaction of the President of the Supreme Court Bar Association should be seen in this light. The violation of a precedent, hallowed and tested by time, seems to be an ominous sign that affects the operation of the rule of law. More than any other person or institution, the executive organ of the state is expected to be supportive of actions that strengthens the hands of the courts of law. That is the step towards good governance.

At the same time, the rules of the game as to executive decision-making having been changed for reasons already cited, it is only to be expected that the Supreme Court will set new guidelines defining the locus of responsibility of all arbitrary executive actions that tend to create road blocks to the effective operation of rule of law. The civil servants may well need a road map that can provide them protection for all their legitimate actions.

A M M Shawkat Ali is a former Agriculture Secretary.