A system in decline

Print edition : October 07, 2005
The law sharpens the mind, by narrowing it. - Edmund Burke

THE study of constitutions has suffered because constitutional lawyers, practising and academic, treated it, possessively, as their turf, treating "poachers" with condescension. It was the more offensive for the conspicuous pretence of civility with which it was concealed. Political scientists could get by marginally. Historians of the constitution were not unwelcome.

What we have missed are the insights of erudite bureaucrats and sensitive politicians. In India these are oxymoron expressions. Among them, erudition is a rarity.

There is not a single learned journal comparable to, say, The Law Quarterly, to provide sharp, informed comments on judicial pronouncements and remind judges that they are fallible too. There is another reason for the indifference. A generation grew up which did not share the values that the framers of the Constitution prized. Both Mahatma Gandhi and Jawaharlal Nehru were ambivalent about them. When in 1937, the question arose whether P.D. Tandon should resign his membership of the Congress, on his election as Speaker of the United Provinces Assembly, they advised that he need not. Men like Biju Patnaik, Kairon and Bakshi Ghulam Mohammed, who held sway in the States in the Nehru era, with his full support, were not shining examples of constitutional commitment. Nor are Om Prakash Chautala, the Lals of Haryana or the stalwarts in Uttar Pradesh and Bihar today.

In this clime, B.R. Ambedkar is remembered only as the champion of Dalits and the poor, which, indeed, he was. But even lawyers are slow to realise that he was a lawyer with a difference. The man was steeped in history, economics, political science and was well aware of the assumptions, values and conventions on which the parliamentary system vests.

He warned the Constituent Assembly on November 4, 1948, that "it is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration and to make it inconsistent [with] and opposed to the spirit of the Constitution" (Constituent Assembly Debates; Volume VII, page 38).

A year later, on the close of the debate on November 25, 1949, Ambedkar reminded the Assembly that "the factors on which the working of those organs of the state depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?" (Constituent Assembly Debates, Vol. XI, page 975).

In 1969, we discovered the truth of both the warning and the reminder. B.K. Nehru, one of the finest civil servants ever, said: "It started around 1969... when the Congress party split took place at the Centre and in the States. The deterioration had begun even in Panditji's [Nehru's] time. But the great fillip came after the split and in the effort to have a populist image, Mrs. Indira Gandhi, as advised by P.N. Haksar, went on [the concept of] committed bureaucracy, committed judiciary." He cited the United Kingdom as a model of proper governance.

A view of the British Parliament.-RUSSELL BOYCE/REUTERS

India's polity is in a terrible shape today. It is no comfort to know that its British model is not in good form either. It is sheer escapism to argue that the British model is unsuited to our native genius, as some Indians and British supporters of Indira Gandhi held during the Emergency.

They received their just deserts from Professor W.H. Morris-Jones in a letter to The Times (July 14, 1976). The Westminster model, he wrote, "had become a specifically Indian achievement". To characterise it as a failure was to add "insult to the injury already suffered by Indian democrats... untidily Indian democracy had freely mobilised demands and grievances". No sensible democratic alternative was being offered by Indira Gandhi or her admirers. "Can purely destructive political vandalism sustain administrative, economic and social gains?"

While there has been significant progress in many spheres in the last three decades, a creeping political and constitutional vandalism has eaten into the vitals of all the organs of the state - executive, legislative and judicial. The year 1969 split the polity into "them" and "us". But Britain suffered no such split. Its Constitution remained intact even during the long-drawn Irish Question which divided whole families. Yet, Margaret Thatcher was able to make huge dents into the system and amass power unconstitutionally; and Tony Blair has inflicted on it unforgivable damage, which it would be hard to repair. How did it all come to pass?

Sir Christopher Foster has advised Labour and Conservative governments since 1965 and was involved in controversial initiatives such as railway privatisation and the poll tax. All the institutions - Parliament, the Cabinet, the civil service and local government - have been undermined. The judiciary turned activist; but, it can go only thus far and no more. Sir Christopher's book does more than describe and explain how and why things went wrong. Its excellent documentation makes it a work of reference. Ivor Jennings' classics, Cabinet Government and Parliament, drew mainly on precedents recorded in the memoirs of those who set them.

This work should set lawyers thinking furiously. Ambedkar's sage words came to mind. At many a page one is forcibly reminded of the Indian parallel. Tersely put, Blair has ushered in a "Revolution" of the kind Indira Gandhi did. In both cases, the rot had set in earlier. In both cases, the motive was amassment of personal power. Indira would not have been able to go as far as she did had it not been for the victory in the Bangladesh war which The Economist lauded with a thoughtlessness that has come to mark its writings occasionally ever since it prettified its cover and changed its style in the 1960s. Blair would not have been able to support George Bush in the Iraq war had he not amassed power earlier. This gave him the confidence that he could get away with lies. Of course, the entire Bangladesh venture was also clouded with subterfuge and lies. It is another matter that in both cases there were massive violations of human rights. Blair emerged the weaker for the Iraq war. Foster's narrative ends in 2004. His language has an elegance and simplicity which comes only from scholarship of a high order. He is a Labourite but has cut across several divides to consult people in the know.

The introduction begins with these arresting words: "We are badly governed. Some reasons for this are now widely acknowledged. Cabinet being replaced by prime ministerial government, the dominance of a political culture of spin, the rise of unelected special advisers and political cronies to positions of great power, the marginalising of Parliament and the substitution of the media as a 24 hours a day forum for political debate; but most important our inability to restrain a perilous and deeply flawed foreign policy in Iraq or to bring about a lasting improvement in our public services despite more billions spent on them.

"We seldom any longer produce good new laws... . The civil service is in danger of being politicised and demoralised. The structure of government and the public sector has become too fragmented to be manageable. The P.M. [Prime Minister] is too grossly overloaded to achieve what is expected of him. He has no time, if he had the inclination, for much beyond spin and overhasty decision-making. The job has been refashioned to suit only people with similar attributes to his."

The first part of the book deals with "the Old Regime" which, for all its flaws, was efficient and honest, if not always wise. The next two parts sketch the first stages and the background to "the Revolution". Part 4 describes "the Revolution" itself and its first chapter sums up the core: "Blair's Cabinet: Monarchy Returns". The last two parts reflect on the courses a corrective process could adopt.

We must remember a grave flaw in our party system. The election candidate is not elected by partymen as in the U.K. or Germany. He is awarded the party ticket by party bosses sitting in New Delhi. He does not enjoy even the capacity to rebel. In Britain, backbenchers have rebelled time and again. Debates matter. Neil Kinnoch could have brought down the Thatcher government in 1986 on the Westland affair if he had prepared well and was more restrained. Michael Howard might have affected Blair's standing if he had performed better in the Iraq debate in 2004. In contrast, Geoffrey Howe's magnificent speech brought down the Thatcher government.

The contrast is most glaring in the treatment of the civil service. It enjoys a certain status in the Constitution. "By convention, though not in law, the civil servant became the third element in the British Constitution." In India, the status of civil service is recognised in the Constitution itself. Yet, politicians have merrily driven a coach and four through it.

This is what the Deputy Prime Minister Vallabhbhai Patel told the Constituent Assembly on October 10, 1949: "I advise you to allow the services to open their mouth freely. If you are a Premier [in the States] it would be your duty to allow your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour. But I see a tendency today that in several provinces, the services are set upon and told: `No, you are servicemen, you must carry out our orders.' The Union will go - you will not have a united India... if you have not a good all-India service which has the independence to speak out its mind, which has a sense of security that you stand by your word and... . where their rights and privileges are secure... . This Constitution is meant to be worked by a ring of service which will keep the country intact... .

"Today, my Secretary can write a note opposed to my views. I have given that freedom, to all my Secretaries. I have told them `If you do not give your honest opinion for fear that it will displease your Minister, please then you had better go'." (CAD; Vol. X; page 51).

We have come to a pass when a senior civil servant, N.K. Singh, could go on television when the Bharatiya Janata Party (BJP) was in power and denounce its predecessor: "Foreign policy was out of sync." The TV channel kept repeating this as an advertisement. Civil servants are suspended and transferred at will in this country. It is different in the U.K. "Occasionally Ministers under political pressure might be tempted to cut corners. Their officials' lesser temptation to do so was reinforced by their having a different motivation from Ministers, by their appointment through competitive examination to tenured pensionable careers and by Ministers having almost no power over their posting and promotion, so achieving the independence from ministerial influence over appointments which The Federalist had believed vital as between different elements in the Constitution. In the 1920s Sir William Beveridge, once a Permanent Secretary, could say that the relationship between Minister and Permanent Secretary was like that between man and wife; except that the Minister did not choose the Permanent Secretary and could not divorce him."

The system produced men of outstanding merit. Cabinet Secretary Burke Trend was a master of the written word who could write a complete White Paper at a sitting without alteration. The Cabinet Secretariat was set up only in 1919. There was no Prime Minister's Secretariat as we have known it under Prime Ministers such as Indira Gandhi and Rajiv Gandhi who lorded over their Cabinet.

The media's role has been contradictory. Its reportage and comment are only one part of the story. The other and baleful one is the kind of journalism which Rupert Murdoch fostered, and some of television's less constructive contributions to debate - with instant comment and sound-bites. The press ceased keeping a close watch on parliamentary proceedings. Irresponsible comment can be damaging. A press that calls for Ministers' resignations at the slightest provocation renders itself ineffective when resignation is rightly called for.

Tony Blair's distinctive contributions lie in news management, government by spin and the undermining of the civil service. These traits were not concealed when he was in the Opposition. But as with Indira Gandhi's ruthlessness - reflected in the sack of the E.M.S. Namboodiripad government in Kerala in 1959 - people probed no deeper. "Premonitions of what was to come were that shadow Ministers had been permeated by suspicion of the civil service, stimulated by folk memories of Labour failure in the 1970s, but as much by the vividness of Yes, Minister. Labour thought Thatcher politicised the civil service, though they were wrong to do so."

Despite those warnings, "the initial shock was great. First-time Prime Ministers had entered 10 Downing Street before with euphoria, but tentatively and with hesitation, expecting to learn on the job how it and the Cabinet Secretariat worked, while plunging into immediate issues. It was doubted if Blair even read the initial briefing the civil service prepares for incoming Prime Ministers. Instead, Blair and his 20-plus aides - more special advisers than ever before and to be increased - entered as a team, knowing what relations they wanted with each other, with Ministers and their special advisers and, most important, the media. Though without a blueprint, they took over the pitch like a well-trained football team passing well and with many rehearsed moves up their sleeves. The Civil Service seemed to win one battle by insisting the Prime Minister's principal private secretary be one of theirs rather than Jonathan Powell, Blair's chief policy aide in opposition; but, it was a Pyrrhic victory, since Powell took on the more important role of Chief of Staff."

The author adds in a footnote: "By an Order-in-Council in 1995 special advisers had been confined to an advisory role which formalised a previous understanding that in general they were not permitted to instruct and manage civil servants. Knowing in advance that Blair wanted special advisers to head his administration, press office and policy unit, the Cabinet Secretary asked the senior parliamentary draftsman if that was consistent with the 1995 Order and was told another was needed. It formally gave special advisers this authority for the first time."

Blair went streets ahead of Thatcher. His aides were closer to the Prime Minister than his civil servants. He spoke disparagingly of civil servants. The result was predictable. The author describes it succinctly: "The machine was at once incapable of sustaining collegiate Cabinet government, or co-ordinating interdepartmental activities as it had done through the Cabinet Secretariat, or, equally important, as will appear, helping to ensure reasonable objectivity and truth-telling in papers and statements to Parliament and the media." The Cabinet system depends on well-prepared Cabinet papers; on civil servants' careful minutes; and - on trust. Blair made the Cabinet irrelevant to policy-making. "There were to be no Cabinet decisions... . Without decisions or discussion of issues, Cabinet meetings rarely lasted more than an hour, sometimes less."

Iraq was discussed in the Cabinet at last, but, without the civil service staff work - the preliminary interdepartmental meetings, the objective reviewing of evidence, the detailed analysis, the working up of preliminary papers and finally of a Cabinet Committee or Cabinet papers in which the issues to be settled were expressed as clearly as possible. "A gulf lies between taking a decision, with the relevant facts carefully evaluated after good staffwork, and an unscripted discussion, when not more than one or two know in any depth what they are talking about, and unsubstantiated opinions flash across the table." Blair's methods facilitated his recourse to war on false grounds. The war left him denuded of credibility and respect.

In the end it is arbitrary governance that led to the debacle. "The plain fact is that under No.10 influence the Joint Intelligence Committee did not include what Sir Robin Butler called [in his inquiry] the normal caveats and warnings, which the intelligence material contained" - and therefore Parliament was misled. Butler found it "a serious weakness that JIC warnings were not made sufficiently clear" in the dossier.

"On a matter of such importance, if no minute were found instructing the deletion of the caveats, one would have expected that Hutton, the ISC [Intelligence Services Committee] and Butler would have discovered a minute on the files from John Scarlett [Chairman of the JIC], or a member of his team, stating that his advice had been that the caveats should be included in the published dossier, but that he had been overruled. No such minute was found. Rather in saying that he took full responsibility for drafting the dossier, the implication was that Scarlett had not discharged the time-honoured civil service function of speaking truth and objectivity to political power. The omission of the caveats had as powerful a consequence as the inclusion of an untruth would have done." A senior civil servant trimmed his sails to the winds from a powerful Prime Minister. Parliament was misled. Blair and/or his aides "had influenced the chairman of the Joint Intelligence Committee - what other reason could he possibly have - to the extent that he dropped the caveats from the intelligence reported in the September 2002 dossier. Whether that amounted to "sexing up" the dossier is a red herring. If the dossier had reflected the intelligence's original caveats, it is unlikely the House of Commons would have supported the war; it would have insisted the inspectors be given more time to find weapons of mass destruction." Suborning of the civil service facilitated recourse to war.

The question remains: Why did men submit to such Prime Ministers? In the U.K. inquiries were held, some like Hutton's, other like Butler's. We have to do with Justices Misra and Nanavati. But all is not lost. The author's prescription for cure is sound and practicable. This book deserves to be widely read in India.

British Government in Crisis

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