Constitution and the Public Administration

Dr.(Prof.) Ravishankar K. Mor, Asst. Prof., Dept. of Law, Yeshwant Mahavidyalaya, Wardha1.

Public Administration in any country is defined in its constitution, so also in India; the Constitution has clearly spelt out the powers, functions and goals of public administration. The Constitution of India has clearly articulated the social and economic goals and has specified agents for achieving the promised social revolution. Matters concerning formation and working of the executive agencies (both political and civil) are spelt out. Citizens have been assured that the Executive together with other organs of the State (Legislature & Judiciary) would uphold their rights and remove the inequities from which the anti-democratic forces derive their sustenance.  Good Governance, it was hoped, would transform the social, political and economic life of the people, within the framework of democracy. For the sake of convenience, this paper is divided in two part, in first part the Administrative set up in India is discussed, wherein the Second part deals with the constitutional framework along with constitutional expectations from the public servants.

Evolution of the Indian administrative system

The public administrative system in India has a long history. Kingdoms existed in India several hundred years B.C. In the earlier era the civil servants performed the role of servants of the king. (Kautilya’s Arthshastra describes the civil service of those days and lays down various norms 300 B.C. to 1000 A.D). During the medieval period they became State servants. The land revenue system was established during the Moghul period. The East Indian Company has a civil service to carry out their commercial functions. During the British rule they started as servants to the Crown, but gradually they started becoming ‘Public Servants’. The British government set up the Indian civil service, primarily with the objective of strengthening the British administration in the UK. In this period the role of the civil services was to further the British interest, and the role was totally regulatory. Later on they assumed development roles also. After the coming into force of the Constitution, the public services as we see today came into being.

The existing administrative system in India

The civil service system is the backbone of the administrative machinery of the country. The civil service system in post-independent India was reorganised. At the central level, the civil services include the All-India services, namely the Indian Administrative Service, the Indian Forest Service, and the Indian Police Service. There are various central services like the Indian Income Tax Service, Indian Railway Services etc. There are three tiers of administration-Union Government, State Governments and the Local governments. The State Governments have their own set of services.

The administrative structure of the Government of India

PA 1

Local self governments (Urban)

  • Big cities have –City Corporations.
  • Cities have –City Municipal Committees.
  • Towns have- Town Municipal Committees.

All these are elected bodies. Administration is carried out by an appointed Chief Executive who is answerable to the elected bodies. Their main role is to provide civic amenities to the citizens. Their main source of revenue is local tax, and funds received from the State Government.

Local self governments (Rural)

PA 2

The hallmarks of civil services in India

  • Constitutional protection.
  • Political neutrality.
  • Permanency.
  • Annonymity
  • Recruitment based on merit. Done by a Constitutional Authorities-the Public Service Commissions.

CONSTITUTIONAL FRAMEWORK

Civil Services

Doctrine of Pleasure

In England a civil servant holds his office during the pleasure of the Crown. His services can be terminated at any time by the Crown without giving any reasons. Article 310 of the Constitution of India incorporates the English doctrine of pleasure by clearly stating that every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State . But this power of the Government is not absolute. Article 311 puts certain restriction on the absolute power of the President or Governor for dismissal, removal or reduction in rank of an officer. Article 311 reads as follows2:

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Panchayat Raj              

The 73rd Amendment of the Constitution, 1992

1992 was the most significant year in the history of Panchayats in India as the 73rd amendment of the Constitution (amendment of Article 243) was passed by the Indian Parliament that declared Panchayats as institutions of self government. (The 74th amendment done at the same time relate to urban local bodies). These amendments came into force from April 24 1993. The major features of the 73rd amendment can be enumerated as under:

  • There should be three tiers of Panchayats (District Panchayats, Block Panchayats i.e. intermediary Panchayats and Village or Gram Panchayats) in states with over 25 lakh of population. States with less than this population will have only two tiers omitting the intermediary tier.
  • Panchayats declared as institutions of self governments (signifying that the status of Panchayats is same in their respective areas, as that of the Union Government at the national and State Governments at the state level).
  • States were mandated to devolve functions relating to 29 subjects (including agriculture, land reforms, minor irrigation, fisheries, cottage and small scale industries, rural communication, drinking water, poverty alleviation programmes etc.) to the Panchayats.
  • Panchayats were mandated to prepare plan(s) for economic development and social justice and implement them.
  • States were asked to constitute a State Finance Commission every five years to determine the Panchayats’ share of state’s financial resources as a matter of entitlement (just as the Central Finance Commission determines how resources of the Central government should be shared between the union and state governments).
  • Panchayat bodies must have proportionate representation of Scheduled Caste, Scheduled Tribes and women. Such reservation should also apply in the cases of Chairpersons and Deputy Chairpersons of these bodies.
  • There shall be State Election Commission in each state which shall conduct elections to the local bodies in every five years.

Amendment of the Constitution necessitated large scale amendments in the Panchayat Acts of individual states, though in states like West Bengal almost all the requirements of the Constitutional amendment were already provided for in the Panchayat Act.

Almost all the states are presently having three tiers of Panchayats. At the lowest level is the Gram Panchayat (GP, headed by Pradhan/Sarpanch/Mukhia). The intermediary level Panchayat is called Block Panchayat/Panchayat Samiti/Taluka Panchayat (PS, headed by President/Sabhapati). At the district level there is the District Panchayat/Zilla Parishad/Zilla Panchayat (ZP headed by Chairman/ Sabhadhipati)3.

Distribution of legislative subjects

In terms of Article 246 of the Indian constitution, there is a threefold distribution of legislative powers between Union and the State Governments.  The VIIth Schedule of the constitution contains 3 lists.

  1. The Union List gives exclusive legislative powers on 99 items of all India character such as defence, foreign affairs, currency and coinage etc.
  2. The State list similarly gives exclusive legislative powers to the states on 61 items, now expanded to 65 items. Such subjects are essentially subjects of local interest.
  3. The concurrent list empowers both the union and the states to legislate on 52 items. The subjects in this list are such that both national government and the governments of the states are interested in them. Education, Civil and Criminal procedure code, marriage and divorce, bankruptcy and insolvency etc. are some prominent items in this list.

Both the union and the state governments are competent to legislate on subjects in the concurrent list. In case of conflict between a central law and a state law on a subject in this list; normally, the union law should prevail. If however a state law reserved for the Presidents assent receives, his assent, it will prevail over the union law. The power to legislate on a matter not enumerated in any of the 3 lists is vested in the union Parliament by Art. 248. Thus in India residuary powers belong to the union government.

Thus the distribution of legislative powers by the constitution is heavily tilted towards the centre. Over and above this, the constitution visualizes 5 extraordinary situations, when the Union Parliament will be competent to legislate on matters in the state list.

  •  Firstly, under Art 249, the Parliament may legislate on any subject in the state list, if the Rajya Sabha passes a resolution by not less than a 2/3 majority that it is necessary to do so in the national interest.
  • Secondly, under Art 250, the Union Parliament may legislate on state subjects when a Proclamation of National emergency is in operation under Art. 352.
  • Thirdly, under Art 252, the Parliament may legislate on state subjects on request by the legislatures of two or more states.
  • Fourthly, under Art 253, the Parliament is competent to legislate on subjects in the state list for the implementation of international treaties, a agreements or convention with foreign states.
  • Finally, when a breakdown of constitutional machinery in a state occurs and there is a consequent President’s rule in state under Art. 356, the powers of the State Legislature are exercised by the Parliament4.

Contractual and Tortuous Liability

Article 300: Suits and proceedings.-

(1)   The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2)   If at the commencement of this Constitution-

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings5.

Administrative Tribunals

323A. Administrative tribunals.-

(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditons of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may-

(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisons as to limitation and rules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause (3) of article 371D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force6.

Concluding remark:

Author, would like to conclude the paper with the observations of the Second Administrative Reforms Commission,

  1. In the beginning the constitutional arrangements relating to governance worked more or less to general satisfaction and provided the people  with a fairly safe and secure life. However, as time passed their inadequacies have become evident and Government has lost its élan as it has failed to live up to the expectations of the Constitution to give real substance to the policies designed to promote social well being.  Even the most modest expectations have remained unfulfilled.
  2. The present situation is characterised by a pervasive disenchantment with the way things have worked out.  It is futile to debate whether it is the institutions provided by the Constitution that have failed or whether the men who work these Institutions have failed.  While we cannot abolish the men and the women who command the strategic heights of governance, we can improve and update the present Institutions, which have developed visible fault lines.
  3. Inability to ensure the socio-economic goals cannot be attributable to scarcity of resources but to the failure of Governance.  It is the insufficient attention paid to such a transformation that has deepened the  fissures between the people and the administration.  The failure to regenerate society lay in the basic conceptual weakness that encouraged the untested assumption that people are best served when the ruling classes originate, execute and administer policies, plans and programmes for their welfare from above.  This misconceived paternalism has reinforced the tyranny of the status quo and has gravely weakened forces of change.  The ‘Law and Order’ pre-occupation of the bureaucratic mind has led  to the entrenchment of the system that the Constitution had promised to transform.
  4. Another fundamental flaw vitiating governance emanated from the lack of  conviction that the consent of the people is the basis of democratic government.  The over-arching theme, a legacy from the colonial days, that people remain a passive category subjects rather than citizens remained firmly rooted on official mind.  People were aroused only at intervals of five years or there about to choose their rulers and to go back again to a life of political passivity.  Political mobilisation of masses mostly remained neglected.  This produced all manner of infirmities and has given rise to alienation of the people from the political system.
  5. Rights of the people are inalienable. The words “We, the people” signify not only the moral and historical insight of founding fathers but they serve to reaffirm they are the source of all constitutional authority and that the test of Good Governance was measure of people’s well being.  However, the functionaries of the State have failed to realize that they are servants of the people and not their masters.  Test of a vibrant democracy is the degree of success in calling its Executive to be accountable to the people.
  6. The new administrative class, working under the mesmeric  spell of colonial attitudes, was reluctant to consider the people as citizens.  They continued to treat them as subjects or ‘ryots’ both owing allegiance to a superior master.  This denial robbed them of power and made it possible for the Executive to diminish the significance of the people.  It is the possession of power that gives people control over their destiny and authority over those whom they have chosen to serve them.
  7. Another fundamental flaw in governance outlined above is inherent in the centralized nature of the Indian State which lays down the parameters of the administration. There is an indissoluble link between the two.  This was evident when the norms of colonial administration, with their long ancestry, came early to stamp their features on the post-independence dispensation. Colonial administration had created a top-down system of command and obedience in which State and local units of government were treated as subordinate to the Central Government.  There is no reason why the Central Government should have large and unwieldy ministries handling subjects like education, health, agriculture, rural development, social welfare, industry, power, etc. when these areas can more conveniently and appropriately be handled at the State, regional or district levels.  The Centre can at best be a clearing house of ideas and knowledge but for it to be actually involved in shaping policy and in allocation of resources is an over-lapping of jurisdiction.  Reallocation of subjects from the three Lists given in the Seventh Schedule could be looked into in this context.  Downsizing of the Government should also follow. Big Governments are not always conducive to efficiency and promptness.  People should know where the buck stops.  But it should always be kept in view that when the Centre does not hold, societies become polarised.

Democracy implies intellectual acceptance of the position that self government is better than even good governance.  Unless self government is ensured by clear devolution of power from the centre to the periphery, people are prevented from participation in Governance. They can not eliminate arbitrariness in executive actions which generally tilts the balance in favour of the privileged. Moreover the ‘top-down’ state of affairs does not legitimise ‘self-government’ which is of primordial value.  ‘Top-down’ administration stifles public initiative.  To make people effective they must consciously enjoy and assert their constitutional entitlements and not be mere supplicants for or objects of administrative largesse.  That is the rationale of the 73rd and 74th amendments to the Constitution. A strong sense of public duty comes from empowerment. People’s attitude changes from one of obedience to authority to active participation in governance.  It is only when the gap between the executive and the people is narrowed down through decentralisation that democratisation can occur. The whole configuration of governance changes if democratic order is conceived not as a ‘once in five year ritual’ of changing the guard but as a continuous renewal of democratic life from a knowledgeable and participative citizen body.  A citizen as a political and social unit could alone take responsibility for transformation of the state of the society.  The essence of the matter is that there should be effective participative democracy at all levels; once people become the fountainhead of power, their role in governance becomes meaningful and effective.  It encourages an active sense of public duty, replacing emphasis from authority and obedience to active participation. The Commission holds that while improving the nature and institutional response of administration to the challenges of democracy is imperative, the system can deliver the goods only through devolution, decentralisation and democratisation thereby narrowing the gap between the base of the polity and the super structure.

  1. This is an epitome of the lecture delivered at National Academy of Defense Production, Ordinance Factory,Nagpur []
  2. For further reading on the topic please visit at, http://www.img.kerala.gov.in/docs/downloads/cp_to_cs.pdf []
  3. For further reading please visit at, http://www.arthapedia.in/index.php?title=Local_Governance_system_in_rural_India_(Panchayati_Raj)_and_the_73rd_amendment_of_the_Constitution []
  4. For further reading please refer, http://www.importantindia.com/2049/union-and-state-legislature-of-india/ []
  5. For further reader please visit, http://www.lawyersclubindia.com/articles/Constitutional-Torts-Under-Article-300-of-the-Constitution-Of-India-3841.asp#.U6a_kvmSx1g []
  6. For further reading on this topic, please visit, http://www.constitution.org/cons/india/p14a323a.html []

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