Gautam Patel

| @ | June 5,2019

Text of the first JB D’Souza Memorial Lecture, delivered on 3rd June 2019 at the Hall of Harmony, Nehru Centre, under the auspices of Citizens for Peace and the D’Souza family.

 

GOOD evening. Being asked to speak at the first JB D’Souza Memorial Lecture is a special privilege. Thank you for inviting me and thank you for coming. It is a special honour to stand here this evening before so many who have dedicated their working lives to public service — civil servants, judges, academics, fellow professionals.

My task this evening is not easy, and that befits the man we honour today. Joseph Bain D’Souza, Bain to his family and friends, could himself be more than somewhat intimidating, especially to those who did not immediately have the measure of his ethical and moral centredness.

My association with him spanned decades. My memories from my childhood are of a tall, lean, quiet and apparently stern man, somewhat forbidding, with the watchful look of a bird of prey. It is perhaps ironic that I am here today, for as a child, I felt that in his presence it was better not to speak at all. He wasn’t actually like this, but that knowledge came only much later. When I began my practice in law, I got to know him differently: one who lent his name to the many causes in which he believed: riots, urban issues, intolerance.

 

J B D’Souza: an unwavering fidelity to principles

 

If asked to describe him in one word, of the many that spring to mind I’d choose this one: unflinching. It embraces many things. Dedication; commitment; courage and fortitude; unwavering fidelity to one’s principles; clarity of thought and vision; breadth of mind and heart; above all, a vision of justice in its broadest and most elemental sense.

 

 

Bain’s standards defined his life and himself. There was no distinction between his public persona principles and the ones he applied to his private life. There are near-legendary stories at a personal level of the many sacrifices he chose to make.

It is important I begin here because once considered norms that required no special mention, these are the very qualities that are today on the brink of extinction. And nowhere is this truer than the field to which Bain dedicated his entire life, public administration.

 

A catastrophic fall from grace

 

IMAGINE a legislature to be the head of a body. On its own, it can do little. It can conceive of things to be done or undone. But to translate that into effective action, the body needs its arms. These are civic administration and the judiciary. I propose today to look at certain aspects of these two arms to understand what I can only describe as a catastrophic fall from grace.

From law, and constitutional law in particular, we know of the very old concept of the ‘separation of powers’. The doctrine is in fashion nowadays, mostly to pillory courts for something called judicial over-reach. Our High Courts and the Supreme Court, the critics say, stray illegitimately into the executive and legislative realms. While this may be true in some cases, these are usually outliers. For the most part, courts are careful to stay within their boundaries. It is when executive action is found again and again to be utterly indefensible and misguided that we see expansive judicial interventions.

The criticism comes most often, and now somewhat predictably, from the executive; and we must see this for what it really is: a complaint by the executive about a court holding that some executive action is unjustifiable in law. When required to defend the indefensible, the response is to shoot the messenger and accuse courts of judicial over-reach. There is no attempt to correct the faulty civic structures and processes that make judicial intervention inevitable.

 

Bad laws make for bad governance

 

WHAT is ‘civil’ society? One marker or facet is, I suggest, consistency. I do not mean neatness or orderliness, and certainly not conformity or uniformity. In theory at least, consistency means that everybody must be governed by the same standards. Conceived thus, I understand consistency to mean the agnostic application of a clearly defined and intelligible set of rules, regulations and laws. Indeed, that is the whole of Article 14 of our Constitution. The greatest societal leveller is the law. Or at least it should be.

As our lives have become more complex, so laws have proliferated, now invading the most intimate interstices of daily life: food, entertainment, education, health, travel, communication — all of it is in some sense regulated. Many of these laws are abominably drafted. They are anything but clear. That is the first failure. Bad laws make for bad governance.

An even-handed application is, alas, also not what we in India see very much. Indeed, we see it very little. There are always those who ‘get away with it’, and it does not matter what the it is: duping consumers and purchasers, financial fraud, jumping queues. We find ourselves admiring countries to our west and our east for being law-abiding.

 

 

 

Why are we so impatient with our laws? ‘We are like this only’, we say, attributing to this thing we call the ‘Indian mentality’ our immediate favouring of individual convenience over collective responsibility. This is superficial and depressingly fatalistic, suggesting that we were born this way, that it is our karma, and that we are doomed forever to be a nation of exceptions and exemptions and provisos to whom the law does not apply.

Especially if you have a motorcycle or a scooter.

If we have so many laws, so very many regulations, how is it that so much is so utterly anarchic? “There is no enforcement,” we then say. “We are over-regulated but under-enforced.” What do we mean by this? Do we want more even more law, and even more terrifying, invasive policing? Surely that cannot be our solution.

 

“We are all slaves of the law that we may enjoy our freedom”

 

Our search for an answer must, I propose, begin with a rudimentary understanding of what we are, or, at any rate, what we are supposed to be. For this, we must turn to our defining document, the Constitution. That document made a very conscious choice among the very many available for self-definition. It called us a democratic republic; neither one nor the other exclusively, but both, together. At its simplest, this means that sheer majority will not determine an outcome at any level; it is the law, a body of rules, structures, regulations and norms that are determinative. I read somewhere of this distinction: a mob catches a thief, and the majority decides he must immediately hang. That is the democratic voice, the voice of the demos. But a society governed by the res publica, the public thing or matter, is a form of government in which the nation-state lies outside private concerns. So in our thief example, when a mob catches a thief, the sheriff, an emissary of the law, rides in, arrests him, and takes him away from the mob that would have him hanged there and then. And takes him where? To a court, to stand trial according to the law of the land.

This, therefore, accords primacy in our society to this thing we call the rule of law. It is central to the notion of a republic, and while definitions vary, the simplest is perhaps the best: the law rules. No one is above it. All are accountable to it, and under it. And that includes the State, which has no power outside the constitutional framework to affect the fundamental rights guaranteed by the Constitution. To ensure this accountability, our most potent tool is judicial oversight, and that in turn posits access to courts.

 

 

In a country as apparently chaotic as ours, where individual liberty seems to have become an elitist side-salad, the broader, overarching principle of accountability requires a closer look. There is, first, the accountability of the individual to the law, and, second, the accountability of the enforcers in the implementation of the law. The individual must be answerable to the law for his daily conduct. The State must be answerable to the law for the manner of its enforcement.

Jonathan Sumption, a recently retired justice of the UK Supreme Court begins his 2019 Reith lecture by quoting Aeschylus from the 5th century BCE, when he tells of Athena, the Goddess of Wisdom, ending a cycle of killing by creating, of all things, a court. Her justification, Aeschylus wrote, was this: let no man live uncurbed by law or curbed by tyranny.

We could go back over a century, to the time of Cicero, 106-43 BCE. His words resound through time: we are all slaves of the law that we may enjoy our freedom.

When we believe that we are unshackled, therefore, from the law — that the law, whatever its form — does not apply to us as individuals, and, second, that there is no one to enforce it effectively, that is when we begin to witness the breakdown of the rule of law. We begin the dismantling of the republic; of a society governed by, and only by, the rule of law. We return to an era of subjects and rulers.

Some years ago, a particularly strident politician better known for her collection of handbags and her penchant for statues, not least of herself (with said handbags of course) pronounced, “One day, I too shall rule India.” I remember thinking to myself, “No, madam, you will not. You will never rule India. You may one day be given a shot at governing it, but so long as we have the Constitution, there will be no ruler.”

 

The growing presidentialisation of democracy

 

It has become fashionable, at least among the chatterati at gatherings where you have to shout to be heard, to propose after a couple of rounds of fortifying libations that all our problems can be magically solved if only we had this thing called a presidential form of government. It is unclear whether this is supposed to mean an invitation to the English to return to our shores post-Brexit (now that it is June and May is gone), or to anoint some home-grown despot. As a follow-up, you will soon be told that it is a jolly good idea to have an elected mayor. It isn’t. It’s a terrible idea. But that is when you know it is time to leave the party.

The thinking is symptomatic of a more fundamental discontent. Democracies are noisy, messy, chaotic; but that is what they are meant to be because that is precisely what vox populi means. Systems in republics work more slowly than in authoritarian regimes precisely because of this overarching principle of the rule of law. Our impatience is with the form the processes of the rule of law take. We find them glacial, ponderous, confusing, illogical, out of step with technology and social needs. Better to disobey — to obey is only to suffer.

In his excellent book, The Idea of India, now its 20th-anniversary edition, Sunil Khilnani says:[1]

The founding idea of India was never simply a commitment to abstract values or ideas — of pluralism and democracy — but was rooted in a practical understanding of the compulsions and constraints of Indian politics. Indians, no more than their counterparts anywhere else, are not virtuous, moderate, principled or even especially tolerant people: they are deeply self-interested. But it is that self-interest — so apparent in the conduct of the political elite — which encourages them to make compromises and accommodations. If one looks beneath the confusion and black arts of India’s politics, one sees in its democratic experience evidence of something that James Madison and his Federalist colleagues well understood more than two hundred years ago. Large republics with diverse and conflicting interests can be a better home for liberty, a safer haven against tyranny, than homogenous and exclusive ones. Within them, factions and differences can check one another, moderating ideological fervour and softening power.

 

 

Not understanding this is potentially perilous. Pierre Rosanvallon, professor of modern and contemporary history of politics at an utterly remarkable college in Paris, has authored a trenchant commentary called, simply, Good Government, first published in an English translation last year.[2] He addresses many questions, including the growing presidentialisation of democracies and the tension between legislatures, the executive and the judiciary.

On the aspect of the discontent to which I just referred; he puts it like this:

… the feeling that there is something wrong with democracy, that it is not working as it should, now clearly derives from some deeper discontent. The chief failing of democracy in the minds of many is that their voice is not heard. They see their leaders taking decisions without consultation, failing to take responsibility for their action, lying with impunity, living in a bubble — in short, a government cut off from the world, a system whose workings are opaque.

He then speaks of the growing influence of the executive, and how the legislative branch has suborned itself the business of governing. Parliamentary democracy is founded on two cardinals: the rule of law, as we have seen, and second, the idea of people as their own legislators, through the agency of elected delegates. The crucial issue, Rosanvallon writes, is the relationship between those who govern and those who are governed. If we are to preserve this, we must specify the terms and the limits of government action — the circumstances under which it can legitimately claim to be a government of the people, for the people and by the people. As he says, our only current method of doing this is by holding periodic elections.

But what do elections achieve? They only establish what Rosanvallon calls the democracy of authorisation, the granting of permission to govern. Elections do not, by themselves determine the relationship between the governors and the governed, only between representatives and their constituents — elections only legitimise the occupation of the post.

 

 

Power being not a thing but a relation, Rosanvallon argues, the extent and manner of control over executive power determine whether a society succeeds or fails as a democracy — whether the power vests in the people or is exercised over them.

More laws and more regulations are being brought into existence not primarily for the betterment of the populace, but precisely to augment the power of the executive in controlling every aspect of the governed. When legislatures succumb to demands for expanding administrative control, that is to say, by arming the executive by more apparent lawful authority, this is an assault on democracy. We have an increasingly illiberal society. We have bad government.

 

The failure of good government

 

In India, both in our cities — perhaps especially in our cities — and in our villages, we see the staggering failures of good government. There are many who have been working through various non-profits to address these governmental failings on everything from agrarian indebtedness to primary health care, affordable housing, potable water, basic nutrition, soil, environment, information, basic education and more. These are the tasks of good government, not primarily the duties of concerned individuals or groups; and it is no part of good government to devise new ways to shut down these endeavours. Yet that is all that government after government seems to be doing.

Khilnani again:

This state is far from supremely effective: it regularly fails to protect its citizens against physical violence, it does not provide them with welfare, and it has not fulfilled its extensive ambitions to transform Indian society. Yet it is today at the very centre of the Indian political imagination.

In the opening chapter of Shantaram — it does not much matter whether you believe everything or even anything in the book — Gregory David Roberts describes his reaction at first flying into Mumbai. “What kind of government,” he writes, “treats its people like this?” That, in a single sentence, captures the disconnect between those who are governed and their governors.

 

Governance of suspicion

 

In Bain’s time it was entirely possible to not only draw into public service for a specific purpose, persons who were not career civil servants, but there was also a willingness to learn and to listen — how might we best optimise bus routes, for instance, or what steps we might legitimately take to address the problems of augmenting water supply or affordable housing. Today, we have a governance of suspicion; and as a result, as a society, we have become suspicious: if any private person suggests something for the greater good, he must be in it for himself, and should the government seek to draw on the private sector, there is instantly a PIL.

Bad governors have identifiable traits. There is, first, their unwillingness to accept that anyone else has anything at all to contribute, any knowledge, skill or domain expertise. Only they have all the answers, on everything from traffic congestion in our cities to agrarian reform. The truth is many do not even know what the questions are, and they are certainly out of touch with contemporary knowledge from elsewhere. This leads to what I call the bubble-isation of governance, proposals and policies unmoored from reason, logic, common sense and contemporary knowledge and experience. Nothing else can explain the completely madcap proposals we see emanating one after the after from Mantralaya in the name of development. Should we propose an interlinking of the nation’s rivers? Of course. Must we build on the west of this city when India lies to the east? Yes. Should we allow a thermal power plant in an ecologically sensitive area known for its fruit orchards? Certainly. Should we rely on a completely flawed Environmental Impact Assessment report backing a wholly unnecessary airport at Mopa in Goa, and accept false environmental statistics? Why not?

 

 

On this last, it is no longer surprising that an executive authority dared to defend such false and procured reports before the highest courts — Justice Chandrachud’s remarkable decision is worth reading for his unmasking of executive venality and duplicity. This gives us some idea of just how far uncontrolled executive action has travelled.

The second trait is an increasingly brazen self-aggrandising, a demanding (and receiving) under threat of punitive action all manner of private favours and privileges. In that sense, we are truly a ‘growing economy’. What began with small bribes has now realised its full form of vast economic and direct monetary benefits. These are extracted under direct and open threat of coercive legal action, and then we have that now worn-threadbare cliché, the law will take its course. There are demands of every kind, from outright bribes by tax inspectors to a going rate per square foot for planning authorities, even demands for club memberships for fear of unleashing inspections of harassment, refusal of legitimate permissions, even taking away of land.

In Francis Ford Coppola’s Apocalypse Now, based on Conrad’s Heart of Darkness, Marlon Brando playing Colonel Kurtz describes his CIA handlers like this: “these … nabobs”, he says. This is an Anglo-Indian word from the Urdu nawab, possibly from the Portuguese nababo, and nawabs were governors or officials in Mughal times. The word has been used since the 1600s to mean persons who acquired quick riches abroad — usually India — and returned as men of power and influence, often buying their way into the British Parliament. They were known to have agents and touts, persons who took bribes for them.

If that has a ring of familiarity, it should.

 

 

A necessary adjunct to this use of power is the deployment of regulations and laws to curtail freedoms. You cannot make your extractions unless you have an armoury at your disposal, and executive action succeeds primarily because it uses legislation to give itself vast powers. We live in an age of censorship: what we read, see, say, communicate, even what we eat and where and what we drink are now all subject to regulation.

But go back to the Rosanvallon’s enunciation of the second pillar of democracy, of the governed legislating for itself. We have not sought any of these regulations. We have not explicitly voted on them. No system allows us to do this. We have entrusted all regulation to elected representatives, but, increasingly, these laws are not driven by what the demos wants but solely by what the executive demands. I agree we need a law to prevent anyone from drinking and driving. But do we need a non-elected governor to decide the limits of how much alcohol we can keep at home? Do we at all need a ‘license’ or a ‘permit’ to drink, one that perpetuates the falsehood that we ‘need’ alcohol for ‘health’ and ‘medicinal’ purposes? As CK Daphtary once famously said, a republic without a pub is merely a relic. That may have been said light-heartedly, but as always there is a Latin maxim for it: in joco veritas. In jest there is truth.

 

Executive authoritarianism

 

The one area in which civil society pushed back and got a legislation of its asking was the right to information law. This was not driven by some great legislative or executive inspiration. Far from it; it was opposed, and the making of that statute involved a long and hard struggle of many years. Like the right to education law, this one has the potential to effect a huge social transformation. It is a demand not just for data, but for accountability.

And it has, for that reason, been subjected to attempts to warp it out of shape, to render it wholly toothless. Exception follows exemption. Section 8(1) of the RTI Act has not one, but ten exemptions from disclosure. Some are justified. But what is one to make of item (d), which saves from disclosure—

‘information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information’?

 

 

 

This makes no sense whatsoever. What on earth is ‘commercial confidence’? I recently found out. When a flat purchaser asks for a copy of a building completion or occupation certificate, that is, I was told, commercial confidence.

Under the RTI Act, information is sought from a public body. What government is ever in possession of a private party’s ‘trade secret’? Between two private contracting parties, this may be understandable. And this has nothing to do with the defence of the realm. That is separately provisioned. Once information passes to government as required by law, then surely it must be accessible to everyone governed by law? At a practical level, too, it is meaningless. As we know, for every Alexander with a ‘trade secret’, there is a government department that is entirely Porus.

That’s horrible. I do apologise. But I couldn’t resist that.

Executive authoritarianism is also marked by its resistance to judicial review. This is the one vital check on administrative excess. It is a very old concept, going back to the time of the American case of Marbury v Madison,[3] and the law in India, too, is well-settled. The persistent endeavour, again by the executive through legislation, is to limit the space occupied by judicial review. The thinking is simple. If you narrowly define the boundaries of judicial review, you are set at liberty beyond those limits. There is no check on you. This is attempted in two ways. First, by setting up specialised tribunals ostensibly for greater efficiency, so far an experiment notable only for its spectacular lack of success. Since these tribunals do not enjoy what is called original jurisdiction, and do not have the jurisdictional power to issue high prerogative remedies such as writs of mandamus or certiorari, their powers of oversight are automatically constrained.

 

 

Yet this is not a complete solution.

So the second string is to enact a legislation that ousts the jurisdiction of courts altogether. Our courts have, over the years, played right into this, forgetting that the underlying democratic pre-requisite to jurisdictional ouster is that good government exists. Where it is shown, in case after case, not to exist, then common sense dictates that clauses of jurisdictional ouster ought not to apply. But law frequently has nothing at all to do with justice, and even less with common sense.

 

THIS is not peculiar to India. There is a very recent decision of the UK Supreme Court, delivered on 15th May 2019.[4] The case was heard on two days in December 2018 by seven judges. The government established the Investigatory Powers Tribunal under a special statute. It had the jurisdiction to examine, among other things, the conduct of the British secret services — MI5, MI6, and the Government Communications Headquarters or GCHQ. One of the statutory provisions was that the Tribunal’s decisions were not ‘liable to be questioned in any court’ except to such extent the Secretary of State allowed by an order. In other words, the executive itself decided which of its own actions could be reviewed by the High Court.  Remember that this is in the context of the lawfulness of surveillance — extremely intrusive surveillance; the government spying on its citizens.

After a lengthy discussion, the appeal succeeded, but very narrowly, by a decision of 4:3. Three Supreme Court judges were of the view that this set up of the government dictating the scope of judicial oversight was perfectly all right.

 

Judicial review is critical to the rule of law

 

Common thinking, even among judges here and elsewhere, is that on administrative issues, including, alarmingly, information disclosure, the government is a better judge than a judge. I disagree.

Not only because I am a judge. There is that, of course, because no judge likes being told that his judicial wings are being clipped by the government. It is also not because of any inherent suspicion of government — that is a terrible basis for any court’s functioning. But my resistance is that judicial review is the one vital check on government and administrative excess. It is a critical component of the maintenance of the rule of law, and therefore of the preservation of a participatory democratic republic.

Bad governors have to be good at building barricades, especially against judicial oversight. One favourite is the expert report. Often nothing more than mumbo-jumbo packaged with meaningless charts and misleading statistics, these reports — typically Environment Impact Assessments — are deliberately worded to confound. In court, their lawyers will tell us that judges are not experts and lack the skills to ‘understand’ or ‘comprehend’ expert reports. This is rank nonsense. If you expect a judgment by a court to be clear and lucid, there is no reason an expert report should not be intelligible either. If an expert cannot make himself understood, he is worthless. This used to work once; courts have now begun seeing through it, and, again, the Supreme Court’s Mopa airport decision is an excellent example.

A typical response to judicial intervention is the deployment of what I call the Kafka paradigm: wrapping up the citizen in impenetrable red-tape and self-contradictions. This is the use of law to blindside citizens, and bad administrators use this remarkably well. If a court does not approve of our use of discretion, then we will use no discretion at all, even if it is rational and logical to do so. Thus, hospitals and clinics will be told that they must make their own arrangements to deal with biomedical waste, and the agency hired to collect it, with whom the hospitals have a contract, is ‘unauthorised’. The hospitals and clinics must, therefore, have their own incinerators or dig pits above the water table. This comes from a pollution control board, and it does not seem to matter that digging pits for this waste has all kinds of other polluting consequences, or that the consequence is that there will be fewer health facilities when the need is for more. This is in direct contrast to Bain’s times, when discretion was used but in a just, humane, rational and principled manner, in a way designed to serve, not to oppress.

This is the creeping hegemony of the executive, an incremental attempt at complete dominance, a progression — or, perhaps more accurately, a regression — from governing to ruling. Hence less accountability. Hence the resistance to judicial oversight.

 

The bonds of trust must be repaired

 

But is it all bad, and beyond repair? I would argue not. There are small, yet meaningful, islands of hope, individual civil servants and administrative officers working against all odds to do the right thing. A superb example in Mumbai, which we do not often notice, is the way the Municipal Corporation is going about restoring and upgrading parks and gardens. There are excellent examples: under and around the Matunga flyover what is called the Nanalal Mehta Garden; another at Nagpada, the Padmakar Tukaram Mane garden; the refurbishment of Kamala Nehru Park; even in squashed spaces like traffic island and roadside spaces. I do not know how this has been achieved, or by whom, but it is remarkable, and it is indeed ironic that we read so little about this and apparently only about catastrophic tree-felling across the city.

 

HOW do we rid ourselves of this oppression? How do we, in short, get ourselves good government, a return to the rule of law? We may, for one thing, consider an adaptation of a principle firmly entrenched in environmental law, the doctrine of public trust. This is not a strictly fiduciary relationship, in the sense of involving money, but it says that our governors are custodians who hold in trust for we, the people, things of common ownership — the commons, we call them — our air and water and rivers and seas and forests and lakes. This is an ancient concept dating to Byzantine times, and there is evidence of it too in Asokan edicts, the Magna Carta and so on. The principle is founded on a different concept of the nature of the relationship between the governed and the governor. It limits the dispositive powers of the governor.

Rosanvallon takes this concept of trusteeship as a relation between governors and the governed to present an inspiring construct. The bonds of trust, he says, are badly damaged; they must be repaired. He emphasises the renewed relevance of the concept of trusteeship in governance, but now in a strictly functional context. To the construction of permanent, sustainable, robust democracies, the renewed notion of trust is a central component.

 

Transparency

 

This trusteeship makes two essential demands — first, integrity; and second, truthfulness.

His essay on truthfulness seems to me to involve a level of abstraction that requires a fuller discussion than time allows today. Placing it as more than a pious expression of sincerity (something that, to quote John F Kennedy, demands proof), he writes of parrhesia, candour in speech or plain speaking, word and action joined together. Foucault considers it ‘free speech’; and there is also its use to speak truth to power. There is, above all, the need for continued civic vigilance. We must bear in mind that our objective is justice in its broadest and fullest sense: social, economic, and even spatial justice, and this requires us to take a closer look at the subjects of justice, to determine who are the ones served by our various justice-delivery mechanisms, both judicial and administrative, and who are not. As James Baldwin said in The Price of a Ticket:

If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected — those, precisely, who need the law’s protection most — and listens to their testimony.

As I have often said, truth and justice often have very little to do with each other. Knowing the truth is no assurance of justice.

There is a wonderful line in a book I recently read, of all things a detective novel set in turn of the century Calcutta. The queen mother of an eastern state says to an English detective (I am paraphrasing a bit),[5]

The truth does not entail justice any more than high office entails wisdom.

Central to any construct regarding integrity is the concept of instrumental or structural transparency. It is only this, Rosanvallon says, that can metamorphose a group of individuals into civil society, a polity in which each person is truly a ‘citizen’. Instrumental transparency forces public service integrity.

Instrumental transparency is a way of exercising civic power, and, I would add, public participation in civic governance. Incidentally, we should be careful not to confuse it with the individual’s right to opacity, meaning privacy.

No governor ever faces any real risk of losing his job. One of the most implacable enemies of good government is guaranteed government job security. Bad government is without adverse consequence. The only consequence built into the system is one of rewards and promotions. This, too, must change. There must be a real prospect of losing a job, and all that goes with it, a certainty of doom. This must be delinked from corruption and tied to performance. If a civic official entrusted with the  task cannot ensure pothole-free roads, uncluttered sidewalks, prevent flooding, or lawful building permission, he must know he faces the risk of removal, not the assurance of promotion. Not having this tangible consequence allows an administrator to act in the one way that always invites judicial censure: arbitrarily; that is to say, inconsistently, contrary to the rule of law, and against the ethos of a democratic republic.

 

 

In March this year, hearing some case I cannot now remember, I found buried in the mountain of papers on my desk a document from exactly six decades earlier, 1959. It was a lease signed by the then Collector of Bombay, one JB D’Souza, IAS. It was an utterly routine document, one of two such I have recently been privileged to see — the other was an even older lease signed by my father’s father when he was Municipal Commissioner. The 1959 lease Bain signed had a routine renewal clause. I believe he would have been mortified by what the present administration was seeking to do to that formal and legally binding document — to disown the renewal clause altogether.

 

TO say that the government acts in the public interest is not a presumption; it is an inescapable truth because no legitimate government can act in any other way. For this reason, statutes that say that a government may do such and such a thing if it deems it expedient in the public interest are vapid. How else except in the public interest, I ask, can any government ever act? Why must the statute specify a need for a public interest? Is this some greater or higher public interest? What might that be? A more sobering thought is that buried in such provisions is an implicit acceptance that the government does not in fact always act in the public interest at all.

In a society that strives to be democratic, transparent and governed by law and accountability, is there any space at all for the bleak and distressing, and dangerously authoritarian worldview of VS Naipaul’s opening lines in A Bend in the River?[6]

The world is what it is; men who are nothing, who allow themselves to become nothing, have no place in it.

The purpose of every functional democratic republic is precisely the reverse: it is that public servants must remain forever precisely in the service of men who are nothing, and who have allowed themselves to continue to be nothing. Simply by virtue of being a citizen and of being alive, no person is ever nothing.

 

THIS is the declining arc of our civic society from Bain’s time to now. Let me be clear: I am not pillorying all civil servants. I am not accusing a particular individual. I could, but that would take all night. I comment on the patterns of conduct that are increasingly the norm. I also do not subscribe to the theory that our civil servants are especially unintelligent or incompetent. They are no more so than persons anywhere else. What seems like incompetence is actually the expansion and consolidation of executive power. To put it bluntly: this country is being run by bureaucrats. Correction: it is being ruled by bad bureaucrats.

This will not change unless we have more and more persons from civil society willing to enter public service clear in their minds that in being a public servant the emphasis is, first and last, on being a servant. What we need is more Bain D’Souzas. Ultimately, as we have seen, the primary responsibility to continually check administrative action is that of civil society, and it is not a duty it is open to us to abdicate. The loudest complaints come, I find, precisely from those unwilling to step up to the plate. This is why we so often hear that plaintive cry, “they should do something about it.” Who precisely is ‘they’? Why is it never ‘we’ or ‘us’? It would be interesting, for instance, to know how many graduates of this city’s several elite public schools have chosen public service.

 

 

So whose government is it anyway? Who do our non-elected administrators serve? It does not seem to be the people. It is not even elected politicians, for — at least in theory — there is a go-around every five years. Who then? The answer is plain and does not need spelling out. These bad governors are our modern day equivalents of Mephistopheles, and they occupy offices in the very secretariats and Mantralayas that were once used by true public servants like Bain.

The name Mephistopheles has ancient origins from Hebrew and Greek: scatterer, disperser, a plasterer of lies, and especially this, not light-loving. More popularly, the name is associated with the Faust legend from German folklore. Faust makes a bargain with the devil, at the price of his soul. Mephisto is the agent of the devil.

There is a famous wooden double sculpture of the 19th century. On one side is a haughty Mephisto, French bearded and goateed, his chin arrogantly high, a sly smile on his face, his chest thrust out. The other side is Margaretta, who we see reflected in a large mirror with an ornate frame behind the sculpture. She a woman with her head bowed in apparent defeat and submission.

As we approach, we see Mephisto. And then, in the mirror’s reflection, we see Margaretta — and ourselves.

That sculpture is not in some distant museum. It is right next door, in the Salar Jang museum in Hyderabad.

Our Mephistos are much closer than we imagine.

 

 

Read the text of the lecture.

 

 

[1]   Sunil Khilnani, The Idea of India, Farrar, Straus and Giroux; Anniversary edition, 2017.

[2]   Pierre Rosanvallon, Good Government, Harvard University Press, 2018.

[3]   5 U.S. (1 Cranch) 137 (1803).

[4] R (on the application of Privacy International) v Investigatory Powers Tribunal and Others, [2019] UKSC 22.

[5]   Abir Mukherjee, A Necessary Evil, Vintage, 2018.

[6]   VS Naipaul, A Bend in the River, Picador, 2011.

 

 

 

[Gautam Patel is a Judge of the Bombay High Court]

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