Archives December 2012

Why bureaucracy baulks at decisions, should omit draconian provisions in Prevention of Corruption Act

Our Prime Minister has time and again appealed to bureaucrats for taking fair and objective decisions based on sound evidence and designed to serve the national interest. Manmohan Singh exhorted civil servants to fight the tendency of not taking decisions because of the fear that things might go wrong and the civil servants might be penalised for that.

In his speech on Civil Services Day, 2012, he had observed, “It is our government’s commitment to put in place a system and create an environment in which our civil servants are encouraged to be decisive, and no one is harassed for bona-fide mistakes of errors of judgement. We stand committed to protecting honest and well-meaning civil servants who might have made genuine errors in their work. And I sincerely hope that these intentions of our government are shared by the state governments too.”

In order to appreciate the mindset of senior civil servants, both IAS and IPS, perhaps performance-tracking of both the central and the state government would be revealing. It would emerge that the central and state governments have not lived up to the commitments and the civil servants, both serving and retired, have been left to fend for themselves even where objective, fair and transparent decisions emerging from the deep analysis of the subject have been taken for the best interest of the country. More often than not, it is the political leadership that has yielded to spot expediency.

Our Prime Minister has great expectations from the civil servants in terms of contribution to the society.

There is a draconian provision, section 13(1)(D)(III) of the Prevention of Corruption Act, 1988, as one of the criminal misconduct by a public servant.

It reads, “While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” It could be interpreted that a public servant could be prosecuted if he has taken a decision that results in pecuniary gain to an individual without any public interest.

In today’s scenario, most public servants are required to make a decision to facilitate growth. Private sector is often the key partner in most developmental endeavours. It is difficult to imagine a scenario where the key economic actors, i.e., private, public or both, that would not gain from any decision that encourages or sets in motion an economic activity.

Whether it is tax rationalisation, amendment in the duty, fee or any other form of tax levying, disposal of public assets including disinvestment, or incentives for making a trade competitive, they all have features that impact pecuniary gain while undertaking such activities. A day may come when tax exemptions announced with good intentions may also be interpreted as criminal misconduct.

Our Prime Minister has cautioned against a “mindless atmosphere of negativity and pessimism”. There is no certainty that the honest and innocent would be spared from harassment as long as such provisions exist in the Act. There is a fair possibility that many of the economic decisions could be interpreted differently with the dynamics of the rationale taking different shades at different times.

It is now left to an investigating officer to interpret a decision as one of criminal misconduct. It is also important to note that the public servant cannot only be prosecuted during the active service but any time after the retirement till death.

It was against this background that the Committee on Civil Services Reform ( Hota Committee) in its report has strongly recommended a review of the section 13(1)(D)(III) of the Prevention of Corruption Act, 1988. The committee had observed that all the commercial decisions benefit one party or the other and it is often difficult for a public servant, even though acting in good faith and national interest, to ensure conformity with the aforesaid provision of law.

It observed that the easiest course for the civil servant is to avoid taking a decision or refer it to a larger body or committee to take a decision. This would largely explain the present atmosphere of safe play and lack of decision by pushing the file.

Unless this draconian provision is omitted, civil servants will always be inhibited from taking bona-fide commercial decisions. It is also important to note that the provision does not even require some kind of material nexus between the officer and the concerned pecuniary gainer.

(This article was published in the Economic Times on 3rd December, 2012)

Empowering poor children

The Right to Education Act, 2009, is a landmark Act, but certain crucial provisions of it for the empowerment of marginalised children have not been implemented ever for the session of 2012-‘13, three years after the Act was notified.  This is due to certain ambiguities, which could have been avoided with timely intervention and joint ownership of the revolutionary project by both Centre and States. Clearly, its execution still needs a great deal of detailed homework before we can claim its successful take-off at the ground level.

The point under examination is Section 12 of RTE Act, which mandates both public and private schools to reserve 25 per cent of their seats for children from backward backgrounds. Against this 25 per cent quota the private schools will be subsidised /reimbursed by the State at the rate of average per learner costs in the government schools. This 25 per cent reservation for underprivileged children takes into account both social and economic backwardness.

The Supreme Court recently upheld the constitutional validity of this Section which requires schools, both public and private, to give one quarter of their seats to low-income, socially underprivileged children. Two judges of the three-Bench panel ruled that the law does not violate the constitutional rights of those running private schools. The Bench however did make an exemption for private ‘minority’ institutions, saying that the Act ‘infringes on the fundamental freedom’ of such schools.

One of the arguments being offered by private schools against the implementation of the 25 per cent compulsory pro-poor quota is that children from disadvantaged groups and economically-weaker sections will face serious adjustment challenges in an elite setting. However, it is not hard to find instances of unaided private schools that have successfully addressed this problem of social integration within the classrooms. Nevertheless, the deeper-latent concerns of these private schools over economic implications as well as other ambiguities cannot be written off.

The Act is a central one, but for its success an important pre-requisite is that it is combined with empowering ‘Model Rules’, the formulation and promulgation of which is the state’s jurisdiction and responsibility.

While the unceasing debate over the 65:35 finance sharing between the Centre and the States towards the implementation of the Act still forms a bone of contention, the modality for the economic reimbursements to private schools due from state governments against the 25 per cent quota has still not been worked out for many states.

For the purpose of truly implementing this 25 per cent quota the model rules of the state government needs to ponder over certain very important questions that if not dealt with now, may prove to be serious impediment for the future. Questions like, will the State contribute towards other peripheral costs like commuting expenses? Will the State share the burden of remedial classes and counselling that might be a necessity given the fact that underprivileged children will start to school straight form Class I along with other economically better-off students who may already have attended 2-3 years of schooling? Will these underprivileged kids be deprived of other benefits/assistance that a State/Centre chooses to provide socially and economically backward children enrolled in government schools like scholarships, free uniforms, free textbooks, free schoolbags, writing materials, etc? How will the government ensure that these children going to private schools under the 25 per cent quota are not left out of the ambit of the mid-day meal that acts not only as an important motivation for school-coming for these poor children, but is also an important intervention tool for fighting hunger and ensuring the nutritional needs of these needy children?

So far, the experience with the state governments has not been very forth-coming. To take the example of a few economically well-off states: Andhra Pradesh has put the onus of non-implementation of this 25 per cent quota for the year 2012-’13 on the Centre, saying that it has no funds to reimburse fees for students. As per media reports, the Andhra government estimates that nearly Rs 90 crore is needed to admit the 25 per cent quota students in Class I in private schools this year, which will increase by Rs 100 crore every year in the next eight years, as the RTE promises free education till Class VIII. Therefore citing financial crunch as the reason, the Andhra government has exempted certain elite schools that are affiliated to the state board but collect high fees.

In Gujarat private schools are reportedly not admitting under-privileged children under the 25 per cent quota for 2012-’13. The State says that it is waiting for a response from the Centre regarding the required funds.

More draconian are the frequent cases of targeted social ostracisation of the children from underprivileged backgrounds who sometimes make it to private schools. As per a news report, in one of the private schools of Karnataka, four children were forced to attend school in humiliation after the private institution allegedly cut off tufts of hair on top of their heads. This was reportedly done to distinguish these children, admitted under RTE quota, from other students.

If the idea of the 25 per cent quota for children from under-privileged background in public and private schools is to further empower this section with choices of better opportunity, then it should not be at the cost of the of other benefits that they are entitled to by the government, like the mid-day meal. The states need to be more motivated to take-up the ownership of this Act only then the real spirit with which this Act was conceived will be kept alive. The long-term implementation of this Act at the ground level through the dynamic involvement of local bodies cannot be ensured without the proactive initiative and participation of the state governments.

(This article was published in the New Indian Express on 30th November, 2012)