SINCE independence, India has been rocked by a good few cases of ill-treatment of civil servants by politicians in power.
But no case has aroused such widespread outrage as that of the arbitrary suspension of a 28-year-old member of the India Administrative Service (IAS), Durga Shakti Nagpal, on July 27. She was a sub-divisional magistrate, a junior scale officer in UP of the batch of 2009.
She had bravely taken on the sand-mining mafia which made billions by illegally loading trucks with sand, from the banks of the river Yamuna between midnight and dawn, for supplying it to the booming construction industry nearby in Delhi. She would be personally present while the squads of policemen she had assembled conducted raids in the dark of the night. Sixty-six FIRs, 104 arrests, and 81 vehicles seized reflected her commitment to eradication of crime.
Soon after the suspension, a senior member of the Samajwadi Party, the ruling party in UP, Narendra Bhati, boasted that he had got Durga Nagpal suspended precisely in 41 minutes.
The young chief minister Akhilesh Yadav, who functions under the tutelage of his father and party boss, Mulayam Singh Yadav, remarked that she was an errant child who was being disciplined.
With an eye on the Muslim vote in the general elections to the Lok Sabha due in 2014, the chief minister accused the officer of demolishing the compound wall of a mosque in a village. The time is gone when Muslims could be duped. Ever since the Yadavs came to power in UP, it has had a string of communal riots in which, as usual, Muslims suffered. The UP waqf board gave Durga Nagpal a clean bill of health saying that she did not order the demolition of the mosque wall and was, indeed, doing her duty by reclaiming waqf lands from the land mafia.
On her part, the officer has maintained a very proper silence, refused to speak to the media and confined herself to rebuttal of the charges in her reply to the show cause notice.
However, the state’s IAS Officers’ Association and the Central IAS Officers’ Association voiced their strong protests at the action. So did more than 100 civil servants in Delhi at a meeting with the union minister in charge of personnel. Capping them all was the Congress president Ms Sonia Gandhi’s well-publicised letter of Aug 2 to Prime Minister Manmohan Singh asking him to look into the matter since the official belonged to a central service.
Involved in this case are two issues of fundamental importance. One concerns the rule of law; the other, the status of the civil service in a democracy. When a civil servant exercises any power under a particular law, he or she cannot be overruled, still less punished, by the political executive except by recourse to the procedure laid down in that very law.
The chief minister or any other minister has no extra legal power to overrule that official.
A former cabinet secretary Naresh Chandra opined: “The ground situation in a law and order matter is not supposed to be decided by the chief minister or the politicians but by the designated district magistrate and SDM [sub-divisional magistrate] in the area.
“The statutory judgment made by SDM Nagpal and the order passed by her as a magistrate is being questioned by the chief minister even as the latter is not recognised under the Criminal Procedure Code … this is the most colourable exercise of executive power by a chief minister.”
Every district is divided into two or three divisions each headed by an SDM who is charged with enforcing very many laws. Under the superintendence of the district collector, it is the SDM who issues prohibitory orders under the Criminal Procedure Code to ensure that agitators and agitations do not get out of hand. A chief minister who acts arbitrarily to override statutory orders by SDMs demoralises the entire civil service and undermines the rule of law. The weapon used by politicians in power is suspension and transfer. In UP every time the government changes, there is a mass transfer of district magistrates, superintendents of police and at the secretariat itself. But the civil service does little, once the immediate crisis is over, to press for institutional reform.
In the wake of the Nagpal case, a senior civil servant, Shailaja Chandra, who has served as secretary to the government of India and as chief secretary, Delhi wrote: “It is essential to have a civil service authority that independently decides on the postings and transfers of IAS officers. Recommended by the Administrative Reforms Commission and promised by the central government, it has been soft-pedalled for too long.
“Second, anyone who obstructs a public servant performing his/her duty or gives the wrong information about enforcement activities, needs to be arrested under the provisions of the Indian Penal Code. If the police do not take cognisance, the affected public should file collective complaints and pursue the cases in court.”
B.K. Nehru, an ICS of the Punjab cadre before partition, urged reforms so that “the administrative apparatus does not become a slave of the will of the chief executive and, unlike as at present, administers the laws instead of carrying out his arbitrary orders. This requires that the civil services be granted the kind of autonomy which they possess, by convention, in all Western parliamentary democracies.
“The powers of promotion, suspension and transfer which are the powers now used to bend the civil servant to the minister’s will, must be exercised, not by the political executive, but by a group of senior civil servants themselves. As we are no respecters of any convention, this result will have to be achieved by law.”
The point is very well taken and legislation is sorely called for. It must be drafted in full consultation with female members of the civil services, serving and retired.
The writer is an author and a lawyer based in Mumbai.