Restoring steel in the steel frame Srivatsa Krishna The relationship between the democratically elected political executive and the competitively recruited permanent executive is, in a lighter vein, like the relationship between a husband and a wife. In this case who the husband is and who the wife is dynamic and keeps evolving every five years, without the slightest signs of promiscuity on either side. While unarguably representative government allows for rule by the political executive according to the law of the land, what is not appreciated by many commentators is that those who get represented are often a coterie or a select group rather than the people who elect those representatives. This in turn leads to rule of law being bypassed or inventive methods being discovered â€” sometimes in collusion with the permanent executive â€” to subvert institutions. Indeed while insulation from politics is not completely desirable in representative government, insulation from political interference is. Especially when political interference comes in the guise of an articulation of widely held public sentiment, when actually it might be anything but that. There is a fashionable and romantic notion that politics is about resolving competing inconveniences while bureaucracy is just an inconvenience. With many honourable exceptions, what happens in practice is actually quite different. More often than not in the guise of representing the many, what is articulated is the narrow need of a powerful few. It is here that the sensible civil servant must necessarily be an inconvenience, no matter how distasteful this may be. Against this backdrop the Supreme Court judgment that aims to give fixed tenure to civil servants, responding to a public interest litigation filed by former cabinet secretary TSR Subramanian and 82 retired bureaucrats, is a welcome first step, though individual civil servants already practice many of its components. For example, no good officer will ever accept an oral order and will instead record it on file and seek written confirmation, as enunciated in the All India Service Conduct Rules. The judgment only affirms and codifies this. Further, one needs to make a fundamental distinction between the obligation to disobey an illegal order versus disobeying one that an officer simply does not agree with. The former is enjoined on the officer by law, as enshrined in Article 3, All India Conduct Rules, 1968. No officer is obliged to carry out written or oral illegal orders that are in direct violation of the law of the land. It is also expected that every order from a superior to a subordinate officer shall be in writing, and if oral, shall be followed up in writing soon. Tenure is indeed important. In some states officers do not even print business cards anymore for transfers happen every few months, more with an eye to demoralising officers than for any administrative reasons. Thus a Civil Service Board (CSB) is indeed welcome and it should fix what could be called a normal tenure for specific positions and not for officers. It should mandate that at least 90% of the officers must complete normal tenure, unless they make a request for transfer. In every case of transfer, the board must record reasons in writing. The 90% rule gives flexibility to the government to prevent a dishonest officer from capturing a post under the guise of fixed normal tenure and move him out instead. But the jury is wide open on whether the compulsions of realpolitik will allow a CSB to be constituted and function as envisaged. The experience with police boards hasn`t been very happy in this regard. Even after almost eight years not a single state government has implemented the judgment in letter and spirit. What is worrisome about the judgment is that it appears to be encroaching on executive terrain. The counter-argument is that when the executive fails to perform its duties as embodied in the Constitution, it is necessary for the judiciary to step in. However, whether the Supreme Court can direct Parliament to frame a particular law is debatable, for it could well be construed as violative of the separation of powers. Further, Article 32 deals with fundamental rights of citizens. Whether administrative reforms, no matter how desirable they are to further public policy and citizens` welfare, can be characterised as fundamental rights is highly debatable. An extension of the same argument could well be that every committee report of every government can be thrust down the throats of a recalcitrant executive, using judicial intervention. This is not just highly debatable but also to an extent dangerous. The Supreme Court judgment is a small first step in a long and arduous journey. No amount of judicial directives can provide a spine to civil servants who don`t want one or didn't have one to start with. No amount of judicial pronouncements can infuse goodness and character into a politician who doesn't have it in the first place. Leadership, character, resolve, judgment, integrity and morality cannot be manufactured in courts or inside governments. ************************************************************ While politicians are the root cause of the dgradation of all aspects of our country, the kowtowing bureaucrats too are greatly responsible, given their soaring, but misplaced amibitions and the lure of power and pelf. Will the Spreme Court judgement help? What should be the code of conduct of a bureaucrat when interacting with the elected representatives to include Ministers, wherein policies are implemented, but without any quirks of personal aggrandisation of either the politician or the bureaucrat. Should there be the Tribubal that can overrule a Minister, in case of complaint by a bureaucrat? What requires to be done to safeguard the career of an honest bureaucrat who is buffeted by a corrupt Minsiter, who has the backing of the PM and the political party in power?