Civil services form an integral part of modern government. Professor Herman Finer, in his classic work titled “The Theory and Practice of Modern Governance”, states that “the function of civil service in the modern state is not merely an improvement of government; for without it, indeed, government itself would be necessarily impossible.”
The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service.
The policies of the government are implemented not by the people, Parliament, the Cabinet, or even individual ministers, but by civil service officers. Elaborating on the indispensable position of civil services in a parliamentary system of government, DD Basu in his commentary on the Constitution of India states:
“A notable feature of the Parliamentary system of government is that while the policy of the administration is determined and laid down by ministers responsible to the Legislature, the policy is carried out and the administration of the country is actually run by a large body of officials who have no concern with politics.”[1]
A Constitution Bench of Supreme Court in Union of India v. Tulsiram Patel[2] dwelt on the ubiquitous nature of the civil service and observed:
“34. The concept of civil service is not new or of recent origin. Governments — whether monarchial, dictatorial or republican — have to function; and for carrying on the administration and the varied functions of the government age number of persons are required and have always been required, whether they are constituted in the form of a civil service or not.”
In the Indian Constitution, an entire Part, Part XIV, is dedicated to ‘services’, indicating the great significance which the members of the Constituent Assembly reposed in the civil service officers. During the Constituent Assembly Debates, the civil services were referred to as the “soul of administration” and it was said that the “importance of the civil services cannot be gainsaid.”
Part XIV deals with “Services under the Union and the States”. Chapter I comprising of Articles 308 to 313 deals with services, and Chapter II comprising of Articles 315 to 323 deals with Public Service Commissions for the Union and the States. The effectiveness of the elaborate provisions of Part XIV is to a large extent dependent upon the relationship between the ministers and civil service officers.
Accountability of civil servants in a Westminster parliamentary democracy
In a democracy, accountability lies with the people who are the ultimate sovereign. The parliamentary form of government adopted in India essentially requires that Parliament and the government, consisting of elected representatives, to be accountable to the people. The Cabinet consisting of elected representatives is collectively responsible for the proper administration of the country and is answerable to the legislature for its actions. The Constitution confers the legislature the power to enact laws and the government to implement laws. The conduct of the government is periodically assessed by the electorate in elections conducted every five years.
The government is formed with the support of a majority of elected members in the legislature. The government responsible to the legislature is assessed daily in the legislature through debates on Bills, or questions raised during Question Hour, resolutions, debates and no-confidence motions. The government is responsible for the decisions and policies of each of the ministers and of their departments.
This creates a multi-linked chain of accountability, where the legislature is accountable to the people who elected them, and the government is collectively responsible to the legislature. This establishes a link between the electorate and the government. The government is collectively responsible for its actions. The Council of Ministers is accountable to both the legislature and to the electorate. Collective responsibility is an important component of parliamentary democracies.
Civil servants are required to be politically neutral. The day-to-day decisions of the Council of Ministers are to be implemented by a neutral civil service, under the administrative control of the ministers. In order to ensure that the functioning of the government reflects the preferences of the elected ministers, and through them the will of the people, it is essential to scrutinize the link of accountability between the civil service professionals and the elected ministers who oversee them.
Since civil service officers constituting the permanent executive exercise considerable influence in modern welfare state democracies, effective accountability requires two transactions:
“one set of officials, such as the bureaucracy, who give an account of their activity, to another set, such as legislators, who take due account and feed their own considered account back into the political system and, through that mechanism, to the people.”[3]
In Secretary, Jaipur Development Authority v. Daulat Mal Jain,[4] the Court held that an individual minister is answerable and accountable to people for the acts done by the officials working under him. The Court observed that:
“The Government acts through its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially, economically and politically…The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation to the Department of which he is the head… he bears not only moral responsibility but also in relation to all the actions of the bureaucrats who work under him bearing actual responsibility in the working of the department under his ministerial responsibility.”
In the concurring opinion in the 2018 Constitution Bench decision, Justice Chandrachud highlighted the intrinsic link between government accountability and the principle of collective responsibility. The judgment underscored the responsibility of an individual minister to the legislature for any and every action undertaken by public officials in the department which the minister oversees:
“327. Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments…
343. … Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance… All Ministers are bound by a decision taken by one of them or their departments. ”
Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in turn accountable to Parliament or, as the case may be the state legislatures. Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability. The triple chain of command is as follows:
a. Civil service officers are accountable to Ministers;
b. Ministers are accountable to Parliament/Legislature; and
c. Parliament/Legislature is accountable to the electorate.
An unaccountable and a non-responsive civil service may pose a serious problem of governance in a democracy. It creates a possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate.
Accountability of Civil Service Officers in a Federal Polity
Our Constitution is federal in character. In a federal polity, a fundamental question which arises is which would be the more appropriate authority to whom the civil service officers would be accountable. As discussed before, a paramount feature of a federal Constitution is the distribution of legislative and executive powers between the Union and the regional units.
The essential character of Indian federalism is to place the nation as a whole under the control of a Union Government, while the regional or federal units are allowed to exercise their exclusive power within their legislative and co-extensive executive and administrative spheres.
In a democratic form of Government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration. The administration comprises of several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment.
For instance, an officer recruited by a particular government may serve on deputation with another government. If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant.
That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected.
A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.
Reference
Government of NCT of Delhi Versus Union of India (2018)
[1] Dr DD Basu, Commentary on the Constitution of India, 9th Edn., 2018, Vol. 13, page 13991
[2] (1985) 3 SCC 398
[3] Adam Przeworski, Susan C. Stokes, Bernard Manin, Democracy, Accountability, and Representation (Cambridge University Press 2012), at page 298.
[4] (1997) 1 SCC 35