Latest Supreme Court Judgment on Administrative Reforms- Part II: Analysis

In my last post, I gave a summary of the Supreme Court judgment on administrative reforms (T.S.R. Subramanian & Ors. Versus Union of India & Ors.). This case has been widely held as a landmark judgment on bureaucratic reforms. However, I am deeply saddened by the methodology and the reasoning adopted by the court in the present case.

I am not going to comment on the recommendations and the reports given by various committees and commissions. Whether they are good or bad is not my area of concern. My only concern is the legal basis of this judgment.

The petitioners, in this case, cited various reports of the committees and commissions that have worked on this issue such 2^nd ARC, Hota Committee, Santhanam Committee etc.

These reports contained various suggestions relating to such reforms. But, when a matter is to be decided in a court of law, these reports and committee recommendations are merely persuasive in nature. The reports can in no way bound the court.

However, in a lot of judgments, such reports and recommendations are being cited. But, along with them, the relevant provisions of law and precedent judgments are also cited which form the real basis of those judgments.

It is indeed correct that the Supreme Court of India is the apex court of the land and is not bound by the judgment of any court of this country including its own. It has wide and sweeping powers to do complete justice. However, the present petition was filed under article 32 of the Constitution of India. Article 32 can only be invoked for the enforcement of the rights conferred under part III of the Constitution of India. The judgment does not contain even a single word relating to fundamental rights. Even though, after reading the judgment, one could assume that the rights of the civil servants are involved in the present case. But, it is still not possible to understand which of the fundamental rights of the petitioners or the civil servants are in question while setting up the CSB or providing fixed tenure? The court could have mentioned a line or two or a paragraph relating to this.

Reports and Recommendations have formed the basis of this judgment. What is the question of law involved? Which fundamental right of the petitioners or the civil servants is being enforced by establishing a Civil Services Board? The judgment fails to answer any of these questions.

Also, counsel for the respondents stated that the government is working in this direction. A draft bill is pending in this regard. A lot of the recommendations mentioned in these reports have already been implemented by the union and the state governments. The Union government is conducting wide consultation with the state governments to get fixed tenures for the civil servants. The counsel mentioned all the steps taken by the government in this regard. However, for the reasons best not known, the court was not satisfied and issued its own directions in this regard.

Another important point to mention is that of Right to Information Act. The court said that the RTI act confers right to information on all the citizens and a corresponding duty on every public authority to maintain the records so that the information sought can be provided. Oral directions and instructions, if not recorded, could not be provided. Thus, the purpose and object of the RTI Act would get defeated. The court fails to consider the unwieldy and burdensome paperwork that would be generated if a written order is given even for the slightest and most trivial of things when time is of essence. Also, consider the kind of interruption it would lead to in the functioning of the government. Merely saying that there is rampant corruption and things need to change is not the answer. Both sides of the story must be given due regard.

I really feel that such things are a matter of policy and must be best left to the wisdom of the legislature. The court neither has tools nor has the expertise to understand what is best in such situations. It is a clear matter of policy. The Supreme Court has said in a number of cases that the courts must not interfere in policy matters unless some malice could be attributed in that regard. I fail to understand why the court did not follow its own precedent in the present case.

I think that there is no need to celebrate this judgment. The directions given by the court have already been implemented by a lot of states. Rest of the states would also have implemented them sooner or later depending upon their own considerations and constraints.

I would like to conclude by saying that the doctrine of Separation of Power is being defiled in our country. In a country like India, neither the Supreme Court nor the Parliament is supreme. It is only the Constitution that is supreme and only the people who are sovereign.