Historical opportunity missed

Even as the 25th anniversary of the economic reforms is being observed, two unrelated developments at the Centre and the States, respectively, draw attention to the functioning of the machinery of government. Following the recommendation of the Seventh Pay Commission, the Cabinet has approved a 23.5 per cent hike in the salary of Central government employees. In Kerala government is considering constituting an administrative reforms commission to be headed by former Chief Minister V.S. Achuthanandan. The Kerala government has also shown itself to be concerned over the constitutional propriety of its plan in that it has sought advice on whether the proposal would run afoul of the principle of ‘office of profit’, as Mr. Achuthanandan is a sitting MLA. Both announcements have implications for us as citizens.

Unlike in the States, some of which have a legacy of administrations instituted by Indian princes, the protocols of the Central civil service have been borrowed lock, stock and barrel from the East India Company. The bureaucracy was both the instrument for extracting India’s wealth and repressing the native population so that the former activity could proceed unhindered. It is no coincidence that the Collector had combined tax collection with the maintenance of law and order. Unfortunately, not only did we not pension off the Indian Civil Service in 1947 but we actually continued with its privileges. Only this month has the Madras High Court ruled that the investigation of the conduct of public servants no longer requires a nod from the government.

It is noteworthy that we have witnessed two major changes in the economic policy regime, first in the 1950s and then in 1991, but there has been no serious administrative reform. When these reforms do materialise they should be focussed on establishing the principle of accountability of the bureaucracy to the citizen. It is not surprising that there is no such provision currently. The legendary concern within the Government of India for procedure when it comes to matters financial is all of a piece with this. The East India Company was a profit-making concern. Its business model, so to speak, had been extraction and it aimed to achieve this via what political scientist Sunil Khilnani has termed “cheap governance”. The financial oversight had not stemmed from a commitment to probity as much as commercial consideration. In this governance model there had been no room for sensitivity to the aspirations of India’s populace. In fact the ‘steel frame’ and the Indian Police had been designed to thwart them.

The consequences for India of retaining the protocols of a colonial bureaucracy are obvious. The system is imbued with ‘procedural rationality’ where the focus is not on the outcome but on adherence to procedure. The waste of resources that can accompany such a practice is overlooked, for outcomes are of no concern; procedure is. It is only when we extend our vision beyond the secretariats, of both the Centre and the States, that we even begin to contemplate the magnitude of the resulting waste and hardship to the people of this country. Once we see the public sector as extending to all spheres of government from the top echelons of the bureaucracy to the local government apparatus we would find that economic reforms without overhauling the administration can only have limited impact.

Three areas in which increased public spending is not having the intended impact, namely irrigation, education and provision for mother-and-child care. This stems from the inability to enforce appropriate behaviour in the bureaucracy. When a nation’s ability to expand the production of food or advance human development is hobbled by ineffective governance, purveying further liberalisation of the economic policy regime is tantamount to evading the real issue. The central role of administration in economic progress has been recognised in the characterisation of East Asian governments as bureaucratic authoritarian industrialising regimes (BAIR). While this is no case for turning authoritarian it does suggest that the Indian bureaucracy too could have been a force for progress were it effectively governed by the political leadership.

We often hear of the potential of information technology (IT) to alter the state of affairs with regard to governance. Such a view appears to underpin the Digital India initiative currently on. It should be given a chance to succeed, but the limitations of a purely technological approach in the context may be borne in mind. Kentaro Toyama, formerly of Microsoft Research India, has shown how IT intervention has limited impact on developmental outcomes when the political will is absent. This is because technology can only be the ‘force multiplier’, it is not the force itself. The positive intent must originate in politics and motivate the bureaucracy to deliver on its mandate.

Most evaluations of the Cabinet’s decision to raise the salary of the Central civil service miss the point. They have focussed on the quantum of the increase and declare it reasonable as 10 years have passed since the last Central Pay Commission award. This fails to take into account that in a global comparison of average salary in relation to the country’s per capita income, India’s Central civil service has historically been far ahead of its counterparts in Asia, Europe and the United States. By bequeathing a salary hike without stipulating superior performance, the Government of India has foregone an opportunity for administrative reforms.

Uniform Civil Code- has time changed now?

The government’s request to the Law Commission for a report on the uniform civil code comes on the trail of many related developments over the past several years. Last year the Supreme Court had said that divorced Muslim women were legally entitled to maintenance from their former husbands under Indian law. The Supreme Court had also nudged the Centre, asking it to take a quick decision on the code. Before that, in 2011 the Delhi High Court had turned down a Muslim man’s appeal that he could not be compelled to pay maintenance to his former wife because the law in question did not apply to the Muslims.

The Supreme Court has reminded the Centre thrice of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. Similar sharp reminders from the court also came in the past, but the ruling orthodoxy in all religions resisted the idea.

The Muslim community, by and large, seems to be hostile to the idea of the civil code and wishes to preserve its own personal law. In this atmosphere, it would not be advisable to enact a UCC, optional or otherwise, though such a code is desirable, until a consensus evolves. However, not all opponents of the UCC are opposed to reform of their personal law. Many progressive and forward-looking Muslims say that not only is their law as practised in India unfair to women, it is contrary to the tenets of Islam.

Not only Muslim Personal Law but also personal laws of other communities are pro-male. Under Hindu law a woman cannot inherit ancestral property. If she is abandoned by her husband, she cannot claim maintenance from her natal family either. A Hindu woman cannot adopt a child in her name. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to determine their share.

Nor is the position of women any better under Muslim law. While monogamy is the rule of law for a woman, the husband is entitled to have four wives. He can dissolve the marriage at any time. The wife, on the other hand, can divorce only with her husband’s consent. Under law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and no maintenance after the iddat to a woman are its other disturbing aspects.

Similarly, the Christian laws on marriage, divorce, maintenance and succession appear to be similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for mutual divorce. In statutes like the Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year. Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased kids.

In attempting to reform and codify the Hindu Law, the idea was that if it succeeded, other communities would follow suit, but this didn’t happen. This does not mean that existing personal laws should remain unaltered. While the judiciary’s role in attempting to rectify gender and other biases in community-specific legislation is welcome, the legislature cannot escape its responsibility of law making.

These developments are to be seen in the overall context of the Constitution’s Directive Principles of State Policy, which enjoins upon the State to have a uniform civil code. But there are some issues connected with this. When the Constitution came into force, while separate electorates were abolished in pursuance of the goal of national integration, enough safeguards were kept for protecting religious and linguistic minorities and their religious and cultural rights. With that in view, successive governments at the Centre remained aloof from this. Another thing to be kept in mind is that having the uniform civil code does not concern the largest minority, the Muslims, alone. There are communities that have their own civil laws and customs on marriage, divorce, adoption, maintenance and succession.

But now there are visible signs of change, with advocacy groups of various religious communities asking for a uniform civil code. The government, however, should move cautiously in the matter because this is after all a touchy subject and so can be emotive.