MUSTY RUSTED PROCESSES

By Somasekhar Sundaresan

Bad procedures have come to adversely impact delivery of service by the legislature, the bureaucracy and the judiciary. And an eventual breakdown of these would be a breakdown of state machinery.

Yet another session of Parliament is underway. The usual walk-outs, adjournments and protests are being repeated. When business actually takes place, Parliament barely challenges the government to provide meaningful answers to logical questions. Laws that get passed are mostly those already operational in the form of ordinances. No MP disrupting Parliament is really taken to task. In other words, the administration of the supreme law-making body is a mess.

The administration of the executive government is no different. Most ministers of every government are outsmarted by bureaucrats. Shrewd ministers hoodwink other ministers with the help of loyal bureaucrats who outdo not-so-loyal bureaucrats of other ministries. Governments are able to hoodwink Parliament with vague and confusing answers that can barely scratch the surface even with supplementary questions.

The administration of the third arm of the state – the judiciary – is equally messy. There is hardly any focus on the business process of justice delivery, and much of the attention is expended on judicial appointments. Different high courts across the country have different rules. Even within the same high court, different judges can adopt different and unique processes. For example, some judges allow out-of-turn “mentioning” of urgent cases while others simply disallow it whatever be the emergency. Such varied practices are not always written down and found in a single place – the approach of the judge has to be ascertained from the court’s associates.

In a nutshell, how the law-writer, the law-administrator and the law-enforcer govern their own administration leaves much to be desired. A simple look at the law that governs the conduct of their business by the three pillars of the State would show some common trait. They all smell musty and sound rusted – they are really old and written in an era that does not resemble the current ease and means of living life in Indian society. Amendments made every now and then have indeed led to a patchwork. For example, the Lok Sabha’s procedural rules were adopted in 1952 from what governed the Constituent Assembly that wrote the Constitution of India. The Rajya Sabha adopted rules of procedure in 1964. No serious reform to bring it in sync with current reality has been adopted. For example, today, the Right To Information law enables any citizen to ask the questions MPs alone could ask when these rules were written. But Parliamentary procedures do not reflect this reality.

Likewise, the Government of India’s rules for transaction of business and rules for allocation of business were all written in 1961. Indeed the current government has re-done the allocation of business rules. However, all these rules are mired in a different era. It takes scandals of criminal proportions for innovation and change in government processes – the e-auctions for coal and telecom spectrum are cases in point. What is now necessary is a surgical re-write rather than tinkering of existing outdated rules of conducting business. Another example is most of the serious appointments for running of regulatory agencies are conducted by “selection committees” and not by “search and selection committees”.

Achange from the former to the latter should be a no-brainer – most applicants who covet a post are supplicants who would be misfits while those who would fit the bill would also expect to be invited to apply.

The Supreme Court’s rules were recently rewritten to take effect in August last year, but are largely a re-write of the rules first made in 1966. Rules of various high courts are also very old and not homogenous. The civil and criminal procedure codes have barely kept pace with the quality improvements that modern technology could bring upon justice delivery. A World Bank study shows that a suit for enforcement of a small claim across India would involve 46 procedural steps (not counting any appeals). The transaction cost of bringing such a claim in Mumbai stands at 39.6 per cent of the amount claimed.

Clearly, bad procedures have come to adversely impact substantive delivery of service by the three institutions. An eventual breakdown would be a breakdown of the state machinery. That the state machinery “by and large” works can hardly be of solace.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on May 8, 2015)


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