Can Bureaucrats Uphold Democracy Amid Political Pressures?
Can They Say ‘No’ to Orders Posing Ethical Dilemmas
Newsreel Asia Insight #143
Feb. 26, 2024
The separation between administration and politics is crucial for a democracy, as it prevents the misuse of governmental power for political gains and ensures that public services are delivered without discrimination. When government agencies are manipulated to undermine the opposition or quell dissent, the shortcomings of the bureaucracy frequently go unnoticed.
Serving as a civil servant in India undoubtedly comes with its unique challenges, including the task of impartially maintaining the public interest without favouring any political party or ideology, particularly amidst significant political pressure. Yet, it remains achievable. A framework of laws and rules exists to bolster their commitment to democratic principles, even when confronted with orders that may pose ethical dilemmas.
The Constitution of India, through its emphasis on fundamental rights and the rule of law, implicitly provides civil servants with the moral and legal authority to question orders that could potentially infringe upon these rights. Articles 14 and 21, in particular, ensure equality before the law and protect individual freedom and safety, providing a strong legal foundation for civil servants.
More explicitly, the Central Civil Services (Conduct) Rules of 1964 require civil servants to remain politically neutral and committed to the public good. For example, Rule 5 prohibits civil servants from taking part in politics and elections in a manner that might compromise their ability to serve the public impartially. It restricts them from canvassing or otherwise assisting any political movement or activity.
Moreover, the right to dissent, though not explicitly laid out in statutory terms, is a critical aspect of the Indian bureaucracy. This right is exercised through the established channels of communication within the administrative hierarchy, allowing civil servants to voice concerns or seek clarifications on orders they perceive as ethically or legally questionable. This mechanism ensures that decisions are not made in an echo chamber but are subject to scrutiny and debate, reflecting a diversity of perspectives.
The Whistle Blowers Protection Act, 2014, represents another layer of safeguard, designed to protect individuals who expose corruption or acts of wrongdoing within the government. Despite criticisms regarding its effectiveness and implementation, the act recognises the need to shield those who take a stand against malfeasance.
Judicial review also stands out as a powerful tool for bureaucracy to challenge executive decisions. The judiciary, through its constitutional mandate, can scrutinise the legality of executive actions, providing a recourse for bureaucrats who find themselves compelled to implement orders that may not align with constitutional principles or the public interest.
One notable instance of judicial review, where the judiciary scrutinised executive actions for their alignment with constitutional principles, is the case of Vineet Narain & Others vs. Union of India (1998). The case, commonly referred to as the Jain Hawala case, emerged from allegations of corruption involving high-ranking politicians and public officials. The accusations were based on entries in diaries and notebooks recovered during raids conducted by the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED), indicating large payments to politicians by hawala brokers.
The petitioners argued that the CBI and the ED were not conducting investigations effectively, especially when it involved politicians and influential individuals, due to political pressures.
The Supreme Court, examining the actions (or inactions) of these executive bodies, laid down several guidelines to ensure the proper functioning of the CBI and the ED, thereby insulating them from political interference. The directives included that the CBI and the ED operate with autonomy to safeguard their integrity and impartiality.
The Court also mandated the establishment of a Central Vigilance Commission (CVC) to provide oversight of the CBI’s operations. The Court further outlined mechanisms for the appointment of the Director of the CBI and the Director of the ED, aiming to ensure their independence from executive interference.
Furthermore, administrative tribunals, established under the Administrative Tribunals Act, 1985, offer another avenue for redressal, allowing civil servants to contest actions perceived as unjust or punitive, especially in cases where they believe their refusal to comply with certain orders has led to retribution.
While these legal provisions and safeguards exist, the real test lies in the face of political pressures and the often blurred lines between governance and partisan interests. The effectiveness of these legal safeguards is contingent upon the collective will of the bureaucracy to leverage them in safeguarding the democratic ethos and the rule of law.
