By asking that braces and struts be provided from all sides, will the Supreme Court be able to buttress the civil service spine so that it stands straight instead of bending over backwards, forward and sideways? Somehow, I doubt it.
First, it is not certain that governments will do what the court has ordered. If the legislation asked for is not passed in three months, whom will the court haul up? The chief minister, or the speaker? That could provoke a constitutional crisis.
Second, some of what the court suggests as safeguards are already available to civil servants but have been used rarely. For instance, an officer can record oral instructions and send them to the minister for confirmation. One reason why this does not get done must be the threat of instant transfer to the boondocks, but an equally valid one is that officers have their own agendas and get into patron-client relationships with politicians fairly early in their careers.
In a quid pro quo situation, no one is going to ask for written instructions. Third, the court assumes that officials would want a civil service board to decide on postings; this is far from clear, because one of the principal reasons why officials kowtow to ministers is the desire for preferred postings (or out-of-turn house allotments, or junkets). In short, the assumption that politicians are sharks preying upon helpless civil servants is a piece of fiction.
Fourth, no system can prevent a chief minister from choosing his own secretary as well as the chief secretary of the state. Between them, these two gentlemen pretty much have a clear field ahead of them -- as the experience with the harassment of two IAS officers in Uttar Pradesh and Haryana should testify.
Nor is it a good principle to adopt that all civil servants should have fixed tenures. It is worth following in situations like the one faced by A Raja as telecom minister; when his secretary refused to play ball, he simply got a more pliable man to replace him (with the Cabinet secretary/prime minister acquiescing).
But equally, remember that Manmohan Singh as finance minister replaced his finance secretary and chief economic adviser, and put together a cohesive team. Is that flexibility to be always denied to a minister? Imagine a corrupt tax officer who has wangled a lucrative posting and who cannot then be touched for three years.
One must also ask: is the new facility of medical treatment overseas for IAS and IPS officials something that ministers thrust at reluctant officials? Is the utterly wasteful use of land in New Delhi’s New Moti Bagh for fresh government housing a ministerial or bureaucratic boondoggle? Bureaucrats have their private agendas just as ministers do and, let’s face it, a large number are as corrupt as any politician.
This is not to quarrel that the thrust of the court’s reform instinct should be disregarded. Rather, the room for flexibility and judgement should not be done away with, in the search for bulwarks against systemic abuse. Also, while it is necessary to stay the hand of politicians, so is it important to reform the bureaucracy.
Hence, rule out mass transfers, not specific cases. Rule out more than one transfer in two or three years, so that there is no harassment. Professionalise the administration by reducing the scope for generalists to stray onto specialist turf, and introduce large-scale mid-level entry on contract.
Have staggered retirement ages, as in the army -- those who don’t make it to the next level in time are retired. Raise salaries, and fix them as a percentage of private sector pay at equivalent levels (as corruption-free Singapore does), but make government officials live as and among ordinary citizens, not as privileged rulers in special government enclaves.