10

Institutions in Crisis

S. N. Jha

The model of development in India for about four decades after Independence required a State with ‘high capacity’ to plan for development and then effectively implement planned programmes. The policy of liberalization initiated in a full-fledged manner in 1991-1992 aimed to recast this interventionist paradigm so as to shrink the ‘domain’ of State activity and transfer much of it to ‘private’ hands. The reforms carried out since, over the course of a decade, have given rise to a debate on the role of the State, especially in the social sector, and on the capacity of the State's institutions, in particular, those of governance.

Regardless of the model of development, effective State institutions are a must, and most failures have been institutional ones, be they problems of implementation of development programmes or of effectively pursuing the different aspects of the liberalization policy, or maintaining law and order in society. In the absence of institutional support, programmes and policies remain incomplete and unimplemented. The process of institutionalization has, in fact, been for long emphasized in social science literature as a necessary aspect of social, political and economic process. Institution-building is a long-drawn-out exercise and once the process of erosion takes over an institutional structure, its reversal requires drastic measures that must be supported by a strong will—political and administrative.

In India, the institutional crisis is understood in different ways. For some, it has to do with the ‘transfer and transformation’¹ of institutions, where ‘alien’ institutions transplanted on Indian soil are congenitally unsuitable to Indian conditions. In this context, there were complaints about the absence of ‘Indian-ness’ in the Constituent Assembly when the suitability of the constitutional provisions was discussed. Others talk about the crisis as a ‘design fault’ where the institutions meant to serve certain functions are not ‘appropriate’ to the tasks they are supposed to handle. The suitability of the ‘bureaucratic’ model for performing developmental functions falls in this category. The solution to this lies in reforming, remoulding, reorienting and/or redesigning institutions.² The crisis is also discussed in terms of the ‘demand stress’ where the increasing pressures/demands from society/economy prove to be a strain on the existing institutions. Such strains are faced by institutions in India as a result of the newly emergent social groups and the changing nature of their demands.

While these are valid bases of arguments that are persuasively put forth, we have a rather simpler meaning of the crisis of institutions. What has happened to the institutions of governance is that they have allowed themselves to fall, in tune with the general social, political and moral decline, and have lost their identity. This has made inroads even into the most rationally organized institutions, disturbing the essential elements of these structures.

According to a credible 1996 survey, many of the public institutions in India are rated very low on the Index of Popular Trust. The low scores reflect poorly on the public perception that is important for the legitimacy of these institutions.³ One related issue that has come strongly into the public limelight is the politician-bureaucrat-criminal nexus. As the Vohra Committee Report of 1993 puts it, ‘the network of the Mafia is virtually running a parallel government pushing the State apparatus into irrelevance…a powerful nexus between the bureaucracy and politicians with Mafia gangs, smugglers and the underworld…’.⁴

POLITICS AND GOVERNANCE

Yet, the balance sheet of the Indian State since Independence has much to commend it, especially in comparison to other Third World countries. In the initial decades, institutions like the Congress Party, the civil services, the legal system, the parliamentary institutions and so on, provided a measure of stability.⁵

The first signs of cracks in the institutional framework became visible after 1967, when the Congress Party lost heavily in state elections. The decade that followed saw an incremental ‘decline of institutions’.⁶ ‘Deinstitutionalization’ became a recurrent theme in analyses of the Indian situation since the mid-1970s; it started with the ‘personalization’ and ‘centralization’ of power in the Congress Party and in the political system,⁷ and culminated in the Emergency in 1975.⁸

The phenomenon of fractured electoral verdicts, testimony to the absence of viable legislative majorities, saw coalition governments in the states in 1967, and in the Lok Sabha a decade later, with the 1977 election bringing in the first non-Congress and the first coalition government at the Centre. Fractured verdicts were to flower more fully in times to come. In the Indian political scene, the 1990s are known for fractured electoral verdicts, ‘hung’ legislatures and desperately woven coalition governments pulled in different directions by the coalition partners. Even when governments have been in position, their legitimacy and effectiveness have been in question.

Indian politics since the 1980s also saw movements in other directions—in society, social groupings and diverse movements at the grassroots, accompanied by changes in the ‘traditional’ authority structure in society.⁹ This gave rise to ‘coalitions’ of new social groups, and a new political dynamic, which was evident in the shifts of the support base of political parties. The period was also characterized by demands for a new look at Centre-state relations,¹⁰ regional autonomy¹¹ and regional assertions.¹² All these factors strengthened the local and ‘localized’ support to regional parties.¹³ With the decline of the Congress Party, Indian politics moved towards increasing ‘regionalization’ as evident in the change ‘from a dominant party system to a regionalised multi party system’.¹⁴

COALITIONS—REGIONAL AND NATIONAL

‘In most federal systems, state-based parties have historically preceded the development of powerful national parties. India has not, however, followed the beaten path, for historical and conjunctural reasons…’.¹⁵ In India, the sequence of development has been different. With single-party dominance at the Centre a thing of the past, the elections of the 1990s showed an increase both in the share of votes and the share of parliamentary seats of regional parties. Of the national parties, only the Congress and the Bharatiya Janata Party (BJP) could claim a tangible presence in the Lok Sabha, but even they were far from a majority adequate to form a government. Since 1989, only minority governments have been in position at the Centre. There have been six Prime Ministers in 10 years. The government of V. P. Singh's National Front, formed with the support of both the Left Parties and BJP, was succeeded by the Samajwadi Janata Dal government, supported mainly by the Congress, with Chandra Shekhar as Prime Minister. The 1991 elections brought to power P. V. Narasimha Rao's minority government with support from a wide spectrum of parties. The United Front governments of Deve Gowda and I. K. Gujral, also cases in point, were large coalitions, as was the previous BJP government, which had to carry along large number of coalition partners.

Besides their ideological diversity, the coalescing parties are mostly rooted in regional demands and identities, and the criss-cross of state politics is such that parties in national coalitions often confront each other at the state level. The role of regional parties and regional leaders in the making and unmaking of national coalitions has been the most striking feature of the recent coalitions. Leaders with a regional political base and almost all committed to the politics of ‘regional autonomy’ in federal relations, for which many of them have been campaigning for some time, are major players in national politics. National consensus on basic issues and policies is, therefore, not easy to come by. Often, even the need for such consensus is not comprehended. The partners in national coalitions since 1989 have been guided by the single factor of sharing power, with little ideological commitment or coherence. As a result, the governments have not only been pulled in different directions, but have almost been made non-functional. In this game, policy making has been stalled by regional, local and even personal considerations.

Some analysts approve of the regionalization of politics, with power shifting from the Centre to the regions, as an arrangement most suited for a diverse country like India. The ‘power shift’ has been perceived as a welcome change after the undue centralization that characterized the decades of Congress rule. Still, it looks as though the power shift has left the Centre somewhat atrophied, especially with regard to the institutional base of policy making. It is noteworthy, in this context, that the ‘age of coalitions’ has occasioned references to the importance of ‘power-sharing’ and arrangements for a healthy ‘federal culture’. References have been made to other countries where the stability of governments has not been affected by their coalition character,¹⁶ and to studies showing that many coalition governments have been able to insulate their economic policies and performance from the ‘politics’ of coalitions.¹⁷ These issues have been consistent themes of discussion on Indian politics in the 1990s. But how do the ground realities measure up to such ideals? Indian politics was characterized by the ‘one party dominance’ for almost three and a half decades before moving to the coalition phase. Of the coalition experiments at the state level after 1967, while those in Kerala and West Bengal can be called successful, others have not been pleasant reminders. Coalition governments, in the absence of ‘coalition culture’, have been indecisive and pulled and pushed in different directions. While the decade long policy of liberalization has reached a stage of no return, from where there can be no rolling back of this package of policies, specific decisions within the package constantly face opposition from different sections of not only political groups, but more importantly, coalition partners. Thus, attempts at macro-economic adjustments have repeatedly faced resistance.

THE ELECTORAL AND PARLIAMENTARY SYSTEM

Though India has successfully held general elections since 1952, the process of elections has not been without serious flaws. One disturbing phenomenon has been the politics-crime nexus and the increasing number of candidates and elected representatives charged with having ‘criminal backgrounds’. The Election Commission noted in 1997 that ‘40 MPs are involved in criminal cases pending against them; nearly 700 MLAs of the 4027 are involved in criminal cases and trials pending against them in 25 states and two union territories…’.¹⁸ More recent data on MPs with criminal backgrounds has been facilitated by a Supreme Court judgement in May 2002, which requires contestants in Lok Sabha and state legislative assemblies to indicate, in an affidavit, details of their education, assets, criminal cases against them, their borrowing from public financial institutions, and the dues they owe the government. Notwithstanding the incompleteness of some of the affidavits, the overall picture that emerges is that 23.2 per cent of the members of Parliament elected in 2004 had criminal cases against them pending in the courts. Of the MPs with criminal cases that could attract severe penalties, 50 per cent were from the states of Bihar, Uttar Pradesh, Madhya Pradesh and Jharkhand, which suggests that the problem is more acute in these parts of the country.¹⁹ While there has been talk of electoral reforms from the government and other sources, there has been no concrete outcome.

As for parliamentary performance, analyses have indicated an incremental decline in terms of both quantity and quality.²⁰ A report prepared by the Lok Sabha secretariat found that a mere 22 per cent of parliamentary time was devoted to legislation in the tenth Lok Sabha. Budget discussion took only 17.30 per cent of time in the tenth Lok Sabha, while the corresponding figures in the seventh and eighth Lok Sabhas were around 20 per cent. The tenth Lok Sabha lost about a tenth of its life due to interruptions and adjournments, often accompanied by disorderly scenes.²¹

With its weak institutions devoid of a sense of accountability, the political system has lost its credibility and is unable to provide effective administration. People have felt helpless in the light of ineffective and unaccountable governmental institutions. A ‘Crisis of Governability’ seems to have gripped the Indian political system.

The strengthening of the institutions local self-government especially after 1992, is aimed at introducing some amount of transparency in public life, but the control over the local administrative structure is yet to be transferred to the local bodies.

THE JUDICIARY

The Judiciary, another pillar of country's governance, is important both for rule of law and the requirement of a federal system. In the first decades of Independence, the judiciary was often in conflict with the legislature, but that was a part of the legitimate realm of Judicial Review. Since the 1980s, however, judicial actions have been increasingly in the realm of the Executive, even in its detailed administrative functioning.²² Such interventions are often occasioned by public interest litigations, whose numbers have increased over the years. There are also occasions when the Executive is reminded of the lapses in the performance of its legitimate functions. Judicial reprimands of the Executive have taken several forms, often to the latter's embarrassment.

Judicial institutions have been comparatively insulated from changes in politics and society and have experienced lower degree of erosion of credibility. This is more true of higher levels of the judicial hierarchy, for example, the Supreme Court and the High Courts, than of the Judiciary at the lower levels. In a general atmosphere of institutional vacuum, the Judiciary has often been viewed as a mechanism of correcting the political and administrative malaise. It is often with a great deal of hope that individuals and social institutions have approached the Judiciary with their problems. Political institutions, as well as political functionaries, also have carried some issues to the Judiciary, when they either found that there were no easy solutions, or simply to escape certain political traps. The Judiciary itself has been conscious of the institutional vacuum and has initiated action suo moto.

With the Judiciary in an ‘activist’ mode, questions have raised about its role in the Indian political system. The three branches of government, the Legislature, the Executive and the Judiciary are constituted differently and have assigned functions. The taking over of the function of one by another is not a solution. Such a situation creates tensions in the working of institutions and their mutual relationship. Also, while getting involved with issues that have to be handled by the Executive, the Judiciary may find itself in a position of helplessness in getting its decisions implemented. The Judiciary ultimately has to rely on the governmental machinery to give its decisions a concrete administrative shape, and a situation where the Judiciary gives a direction (through its decisions) and then discovers that the Executive either does not, or cannot, implement it, will contribute to the erosion of the authority of the Judiciary.

An important question that has to be raised, even if not fully answered, is to what extent the objectives of democracy will be served by judicial activism. Should the courts be called upon to adjudicate on questions of political wisdom or public policy? The last two decades of the working of the Indian higher judiciary raises new questions about its relationship with the Executive, its own institutional health in the context of its evolving relationship with the Executive, and ultimately its role in the better functioning of Indian democratic political system.

The problems faced by the Judiciary and the legal system are enormous. Many laws that the Judiciary is expected to enforce are outdated and efforts at rationalizing them, especially the Criminal and Civil Procedure Codes and the Evidence Laws have proved difficult. There are laws that are as old as 1857 and just not relevant. The Law Commission has identified as many as 400 obsolete Acts.²³ Then there has been an ‘inflationary growth’ in legislation that has provided more occasions for litigation. Shortage in the number of judicial officers, the sheer number of cases that the judiciary has to tackle, the legal proceedings, all have contributed to a backlog of pending cases that would take decades to clear up. In the Delhi High Court alone, there were 1,46,613 pending cases in 1995, out of which 42,144 were pending for more than 5 years and 425 for more than 10 years.²⁴ Cases pending before the high courts, to the tune of 26.5 lakh as of 31 December 1993, went up to 35.55 lakh as of 31 October 2001. In the Calcutta and Allahabad High Courts, 44 and 35.5 per cent of the pending cases, respectively, were more than 10 years old. Of the 2.28 crore cases pending in the district and subordinate courts, 5 per cent are more than 10 years old.²⁵ Speedy and inexpensive justice to the people remains an unattained ideal. Besides, the costs of litigation keep many genuinely aggrieved persons away from the law courts.

A significant step in the direction to taking ‘justice to the doorstep of the people’ is the system of Lok Adalats, introduced first by the Gujarat State Legal Aid Board in 1985. Many states, with the support of the Judiciary, have enacted laws for the setting up of Lok Adalats. Under this dispensation, disputes that can be settled by mutual agreements are resolved on the basis of facts and documents, out of court, with the help of arbitrators. Cases settled in this manner include minor property disputes, insurance and motor vehicles claims, and so on. As an alternative to the courts, Lok Adalats are a good supplement to the judicial system.

THE CIVIL SERVICE

The Bureaucracy has repeatedly been referred to as a stabilizing factor. The elite structure of well-trained civil servants provided a healthy continuity that was an asset in the wake of enormous administrative problems immediately after Independence. That structure has been retained almost unaltered, even though, along with the change in the objectives to encompass development-related concerns and the expansion in development activities, many structural changes have also come about. The first major exercise for administrative reforms was undertaken in 1969 by the Administrative Reforms Commission (ARC), whose Chairman, Morarji Desai was an experienced administrator and also an important political leader. It is also fair to keep in mind the ‘good intentions’ of other leaders to bring about administrative reforms. But the agenda of administrative reforms (like many other structural reforms) remained largely unattended.

The decay of institutions, especially since the 1970s, did not leave the bureaucracy untouched. Today, the politicization of the civil services is rampant. Civil servants in many States are divided along caste lines. One comes across reports of the civil servant-politician-criminal nexus. Corruption is mentioned almost as a routine characteristic of the bureaucracy. These factors have affected the ‘control structure’ of the bureaucracy and its effectiveness and legitimacy. The bureaucracy has become synonymous with ‘rent seeking’. The ‘steel frame’ lies severely rusted. A civil servant remarks: ‘In almost all states, people perceive bureaucracy as wooden, disinterested in public welfare, and corrupt’.²⁶

The police has perhaps been worst affected by the process of decay. It has become largely ineffective, as is evidenced by the creation of a large number of paramilitary forces and the increasing frequency with which regular military deployment is done for civil administration. Sadly, the elaborate recommendations of the Police Commission remain unattended. There has also been some neglect on the part of the government in keeping the police adequately equipped. The most essential regulatory branch of government is the best example of atrophy.

As we go from the state level to the level of the district and further down the administrative system,²⁷ the erosion of the structure is more severe and apparent. The lower levels of the executive agency, especially the field bureaucracy, are crucial for governance and, in particular, the implementation of development programmes. Being closer to the society and social realities, these levels have to consciously insulate themselves to work effectively. However, consideration of caste, class, family, money power and other aspects of social inequality have penetrated the administrative structure. The structures of social inequality are reflected in the working of bureaucracy, which manifests all its distortions, so that caste affiliations are able to interfere with police activities and the implementation of development programs. Corruption is rampant and no one even tries to provide any camouflage to such practices. Even more disturbing, instances of liaison between the field administration and terror-based groups have come to light. The three main structures at the local levels—the police, the revenue and the development functionaries—remain completely ‘penetrated’ and ineffective.

The political executives, especially the Prime Ministers since Nehru, have had their own misgivings about the bureaucracy for different reasons.²⁸ With the advent of coalition governments at the Centre and Prime Ministers who head unwieldy and precarious coalitions, the rusted bureaucracy has filled in the institutional vacuum, but the line of accountability and control between the political executive and the civil service has fallen into disuse and misuse. It seems that it is at those moments and on those issues on which the political executive cannot, or is not willing to act, that the bureaucracy makes itself felt, not always with healthy consequences. Prime Minister Deve Gowda admitted in the Rajya Sabha that the bureaucracy sometimes reverses cabinet decisions. He said, ‘I feel disgusted’. He went on to add that ministers are ‘damned scared’ to give specific directions or overrule the objections raised by the Secretaries.²⁹ It is bad enough to have a bureaucracy that indulges in an act that is not in keeping with the Constitution and democratic propriety, but it is worse to have a political executive that expresses its helplessness when faced with such situations! Their expression of helplessness is partly an attempt by the political executive to shift the responsibility of their own mismanagement of governance to the bureaucracy. There is now the widespread practice of the political executive using its power to serve personal and party interests and making the bureaucracy an ally in this.

It has been suggested that the administrative structure be made open to experts and others who are knowledgeable in specialized fields. This has not happened in any systematic manner. The earlier system of the creation of financial and economic service posts consisting of officers wanting to specialize had resulted in the development of high level expertise among a select pool of officers. The pressure of vested interests however led to the abandonment of this scheme. After that, expertise has been inducted on a highly selective and ad hoc basis, leaving the administrative structure as a whole in charge of the generalists.

In those ministries where the bureaucracy is face to face with other structures, the relation between the two is a major area of tension. Thus, a major restructuring in the Ministry of Defence became necessary to make the relationship between the Ministry officials and the defence personnel follow a clearly defined demarcation.