Thursday, April 01, 2010

One level deeper after constitution...

This writeup is targeted to senior civil servants whose work follows the "Rules of Business" made by the President or the constitutional lawyers who interpret the provisions of constitution.

Under article 77(3) of constitution, the President is empowered to create rules for convenient transaction of business and allocation of said business amongst ministers.

The President has thus made 2 rules called as

(i) "Allocation of Business rules, 1961" for allocating department and subjects to ministers, and

(ii) "Transaction of Business rules, 1961" for more convenient transaction of business of government.

The official government of India website of the rules are linked above.

I do not see anything in "Allocation of Business rules, 1961" which is against any constitutional provisions. That is not being challenged. ( I would reserve the following challenge for later, that allocation of business rules should be the ones referring the transaction of business rules due to word "said business" in the article 77(3) and not the other way round. )

It is the "Transaction of Business rules, 1961" that is being challenged.

Specifically the following 4 rules in it are challenged on grounds being constituionally invalid and requested that they do not have any place in President's rules. It is admitted that these rules are very valid in toto and are helpful but only for functioning of Council of Ministers internally. However these rules must be excluded out of President's rules.

The 4 rules are:

1) Rule number 3 which gives individual minister powers to dispose business alloted to them.

2) Rule number 4's clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.

3) Rule number 6 defining committees of the cabinet and their executive powers.

4) Rule number 12 providing power to PM to directly permit or condone a departure from these rules.

Note: The President is bound to act on aid and advice of Council of Ministers(CoM) under article 74(1). That aid and advice is not to be enquired by any court under article 74(2).

Following are the challenges offered against each of the above four rules:

1) Rule 3 which gives individual minister powers to dispose business alloted to them.

Power to dispose of business is executive action. Article 53(1) states that President exercises his authority either directly or through officers sub-ordinate to him. Therefore the person to dispose of business must be an officer, and sub-ordinate to the President as well.

If minister is treated as an officer exercising executive authority of President, then the decision of minister becomes the decision of President and therefore binding on the State. That is not the current view. Decision of minister's do not become decisions of the State as per Supreme court decisions. Therefore, power to dispose of business assuming minister is officer cannot be valid.

Also, the view of the courts' is minister is no more than an advisor to the State, constitutionally(refer Shanti Sports case and many others). Also, advises are kept away from the purview of courts because of article 74(2) as per note above. Therefore if the minister is disposing of the business as advisor then his advises to the executive will be beyond the purview of law. But then this is also not the correct current position since all of ministers advises, file noting, decisions are open to RTI. If ministers are to dispose of business as advisors then their advises must be kept secret.

Not only that. The advise, its existence , and inquiry into the nature of advise would be beyond any court. Yet courts are full of cases under Prevention of Corruption etc where minister's binding advises have been inquired into and brought into open.

Therefore, rule 1 is invalid to be included under President's rules if open-ness of minister's decision are to be allowed.

Rule 1 can be held as valid and consistent with courts only when it is interpreted that individual minister's instructions in this rule are not advises, therefore non-binding on civil servants. In case of difference of opinion between a minister and a civil servant final decision rests with President who may either choose to accept that minister's decision or choose to exercise his right under article 78(c) to let the minister's decision be considered by CoM.

2) Rule 4 clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.

(This rule 4 clause 1 is being challenged as invalid on the assumption that by Cabinet is meant "Cabinet of Ministers or CoM". If it is interpreted as Cabinet Secretariat, then it is not being challenged. )

For inter-departmental consultations, President cannot make decision of the cabinet binding on the civil servants without compromising open-ness. Decision of cabinet will also,constitutionally speaking be treated as advise only , and hence will have to kept out of purview of the courts.

However the decision of Council of minister, to President can be considered as binding on civil servants and not compromise open-ness. It will be made open to court as well because it will be the instruction from the President to the civil servant that will be brought into open even though that instruction may be same as CoM's advice.

This rule 4 is assuming that decisions of CoM are same as decisions of President, and assuming further that President is denying himself the right to encourage, right to warn and right to be consulted by the CoM. Decisions of CoM are not the decisions of President and therefore not the decisions of the State , this has been established by courts. President cannot not only give up his rights, but also cannot appear to give up his rights. There is a case of an act of self-abnegation.

Therefore rule 4 clause 1 is invalid to be included if Cabinet is interpreted as not being Cabinet Secretariat, and open-ness of decisions to civil servants in inter-departmental matters ,from CoM is to be allowed.

The executive business of inter-departmental decisions should be with Cabinet Secretariat or the head of all departments i.e. the President, to make the system open and consistent with courts' view.

3) Rule 6 defining committees of the cabinet and their executive powers

This rule 6 is being challenged as invalid because

a) As shown above, it will require the communication of standing committee's decisions to civil servants as not eligible for coming into open. Standing committees consisting of ministers can communicate only their advise.

b) The President under article 74(1) is to take advice from a Council of ministers as a whole. President cannot break CoM into smaller parts (of committee's) for decision making for his convenience. Breaking up itself is CoM's internal matter. In fact President is supposed to enforce collective responsibility inherent to article 74(1) . President is even further expected to return decisions as specified under article 78(c) for consideration by entire council if he feels that such a decision has not been considered by the CoM.

This rule is valid if it was a rule made by Council of Ministers for their internal working. However it is invalid to be included in President's rules.

Also, the Standing committee minister's have been given direct charge to issue orders without allocating the said business to a ministery/department/mantralaya in allocation of business rules. The orders of Standing committees will become binding once they have been accepted by a department head/ministry/mantralaya. Article 77(3) makes it binding on President to include the said business in allocation rules. Since such is not the case, rule is invalid till then.

4) Rule 12 providing power to PM to directly permit or condone a departure from these rules.

As per rule 12, PM gets direct powers to permit or condone departure from these rules to the extent he deems neccessary.

It is fact that these rules are made by the President and therefore only the President can permit or condone departure from these rules. Permitting or condoning departure from these rules of business is executive decision. PM is not the head of executive and does not have executive authority. PM can definetely advise the President to permit or condone departure from the rules, and the President is bound to act on that advise as PM is the head of CoM.

However, until that advice is accepted it does not become effective in executive functioning of the government. President can exercise his right to warn, consult and encourage. This rule is valid if it is interpreted as condonation or departure pemitted by the President, on the advice of the Prime Minister.

Corrections to these 4 rules above should get us quite ahead in sorting out this corruption.

At the constitution level there does not appear to be any systemic problem. We have chosen the Parliamentary style of working which is working very well in developed countries like UK, Canada, Australia etc. The systemic problem is therefore not as deep as being at constitutional level.

Getting one level above constitution throws up inconsistencies as shown above. The corruption appears to be spreading from inconsistencies of these business rules with provisions of constitution.

These 4 medicine prescriptions after diagnosis should be able to sort out the corruption. In case, they think clearing these rules is too tough a medicine then they can at least take the medicines with easiest first as follows:

a) In rule 12, add "President, on the advise of the Prime Minister" instead of "Prime Minister". President is anyway bound to act on the advise of the Prime Minister.

b) Mention the business of Standing Committees of rule 6, in "Allocation of business rules, 1961" such that the business of the Standing Committees fall under one department/mantralaya or vibhag. In any case, the departments/mantralaya/vibhag will be instructed by corresponding Standing Committees due to Rule 3.

c) The word "Cabinet" in rule 4 should be replaced with "Cabinet Secretariat". Cabinet Secretariat is already bound under Rule 3 to be instructed by Cabinet. Its decisions will be decisions of the Cabinet.

d) Modifying Rule 3 is going to be the toughest medicine to take. The rule in reality is useful, but not relevant under President's rules. Perhaps, they should be followed internally as Council of Minister's rules, signed by PM. Perhaps, these rules should be retained as it is, with a provision of difference of opinion between the department and minister(s) to be referred to Council of Ministers and the President.

Lets try getting these medicines across one by one.


Anonymous said...

If these rules were passed as it is , verbatim, through a bill or an act of Parliament, and assented by the President then they would have been held to be invalid by the court.

Prime Minister would then have to replaced by President.Cabinet Secretariat would have to be replaced by Cabinet. Instructions of ministers and standing committees would have become non-binding on civil servants. Only ministers could have got things done would have been by acting collectively as Council of Ministers and then using article 74(1) to get it done through the President.

Anonymous said...

All these rules can be saved without modification, if just an equivalent rule of article 78(c) is also inserted in.

Instructions from one minister to a civil servant are then eligible to be sent to the President if the civil servant feels that a minister's decision has not been considered by the Council of Ministers.

Anonymous said...

Rule 3 can be taken as OK if it is deemed that a minister's advice is from CoM.

But in that case, there should not be any difference of opinion between various ministries and departments. No scope of inter-departmental consultations then or sending it back to cabinet.

Nischal said...