Dr Mubashir Hasan's article is based on his remarks on August 25, 2006, at a conference in Srinagar organized by the Institute of Social Sciences on "Indian Federalism at Work" talks about the power of bureaucracy in India and Pakistan.

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In India, Pakistan and Bangladesh, presidents, prime ministers and ministers of the governments, elected or in some cases unelected, reign but do not rule.  I became conscious of this situation as I served in Zulfikar Ali Bhutto’s cabinet, 1971-1974, as minister of finance, planning, development and economic affairs.  My relations with the prime minister were as close as they can be with a political boss and I was senior enough to act as prime minister during his absence from the country.  And, yet, I found myself to be powerless in power.  Indeed, in a very serious and sombre conversation, my prime minister revealed “Doctor, what you want me to do, I do not have the power to do”.

The highest in our governments are only titular heads.  They lay down policies and devise strategies to maintain law and order and plan the schemes of development, in practice, turn out to be minor shareholders in the implementation of the policies and directives they approve.   Development outlays released by the federal or state governments do not produce the intended results at the village and town levels.  Efforts to reduce the level of corruption do not succeed.  The government employees cannot be made to report on time in the morning.  The human rights of citizens are violated as the laws of the land are brazenly disregarded or bent.  With the support of the politicos, the officers at the district level, acting in an apparently legal form, are in a position to interpret, distort, hinder to the point of denial the letter and spirit of the orders received by them.

The incapacity of our structure of governance to deliver in the field the results of the policies made at higher level lies deeply buried in our history.    The chief culprits are the scheme of governance promulgated as the Government of India Act 1858,(21 & 22 Vict., C. 106), “An Act for the better Government of India” and the laws enacted during the next two decades and not repealed or amended by the constitutional reforms enacted since then.

The structure of governing India promulgated on 2^nd August, 1858, was custom designed to build a coercive power of the state of a very special kind.  It was quite different from the structure promulgated by London for Australia, Canada and New Zealand.  It was based on paranoia on the part of the sovereign who feared the people of India and had reasons to be suspicious of its agents and servants. What if the governor general or commander-in-chief, singly or jointly, had dreams of proclaiming independence from the queen’s government?  The danger was real. 

In 1840s, as the commander-in-chief Gough, was eager to invade Punjab; the governor general was not willing to give his consent; doing so was against the policy laid down by London, also the funds required for the campaign had to be approved by London.  But the two worked out a stratagem to defy their government’s orders.  Since the governor general was a retired lieutenant-general and as such an officer in the “reserves” of the army, the commander-in-chief called him to duty and together they led the invasion of the Punjab.  In the same decade, a major general called Napier annexed Sindh in violation of a solemn agreement with the Amirs.  In 1857, the people of India and the lower ranks of the army had risen against the foreign authority.  Two decades earlier in an address to the Parliament, Lord Macaulay had said:

“I have travelled across the length and breadth of India and I have not seen one person who is a beggar, who is thief.  Such wealth I have seen in this country, such high moral values, people of such calibre, that I do not think that we would ever conquer this country, unless we break the very backbone of this nation which is her cultural heritage …” 

That was Macaulay, the educationist but the worries of the rulers-to-be in the realm of administration were not much different.  How then was the task to be accomplished of framing a constitution for a dangerous land like India?  The possibility of a high official staging a coup d’etat had to be blocked.  No salaried officer or the agent of the ruler should be able to build his political power on the basis of popular support.  Therefore no social contract between the state and the people could be allowed to emerge.  The army was not put under civilian control.  The commander-in-chief was placed directly under London.  He and his officers swore allegiance to the person of the Crown while the newly created civil services were covenanted to the Secretary of State for India.  The military was made independent of the governor general but it had no power to raise revenues to meet its expenditure and depended upon civil revenue officers to provide the money.  Apart from the defence of the frontiers of the empire, the major assignment of the military was to come to the aid of the civil power at the call of the district officer.

The powers of the governor general of India and of the governor of the presidency provinces were grossly circumscribed.  A decision of the Governor General, governors, even the Secretary of State for India had to be a decision “in Council”.  The decisions were not taken any one individual.  Further to weaken the power of the governor general, the governors of the presidency provinces were allowed to correspond directly with the secretary of state in London.  Above all, the governor general and his governors were not vested with any executive power under the battery of the laws promulgated in the second half of the 19^th century such as the Indian Police Act 1861, the Revenue Laws and the Indian Penal Code, 1860 and 1898, as also the laws establishing the courts of justice.  The governor general, governors could only hear appeals for mercy.  

David Page (1982) accurately describes in Prelude to Partition “… the strength of the system, as of any autocracy, was the relation between the Raj and its subjects were conducted almost entirely at the district level.  India was run by the district officers and each district officer was ‘the mother and the father of his district.”  The Raj was a highly decentralised machinery of governance where scores of district officers independently exercised executive authority under the policy guidelines laid down by London.  In his excellent little book "The Deputy Commissioner in East Pakistan" (1968), A.M.A.  Muhith describes the Deputy Commissioner as a "mini-monarch”, exercising power vested in him under more than one hundred laws regulating all aspects of public life.  Under Section 144 of the Criminal Procedure Code, the power exercised by the District Magistrate is personal in nature – the power generally associated with the Sovereign.  No such power was delegated to the Governor General, Governors or Commissioners.        

In 1930s, when a white police officer beat up a Indian judge of the Lahore High Court and the judge reached the gate of the Governor’ House to complain in person, the governor could not order the policemen at the gate to let the judge in.  He had to walk to the gate to bring the judge in.  In 1942, when New Delhi issued the general order to arrest Congress leaders, the superintendent of police of Dera Ismail Khan, Sardar Abdul Rashid, asked the British district magistrate under what section of the law Mr Bhanju Ram, the District Congress president and his colleagues, should be arrested as they come out in a procession next morning.  In vain they searched the law books for legal provision to make the arrests as directed by the superior authority.  By then it was midnight.  The district magistrate phoned the chief secretary in Peshawar who woke up the governor asking for an answer which was that the matter is left to the discretion of district officers.  The next morning as the procession reached the court premises of Dera Ismail Khan, the superintendent of police did not make any arrests.  The order from New Delhi was not followed.

The officers of the Imperial Civil Service, as it was then called, were recruited, trained, promoted, given leave of absence, disciplined and retired by the Secretary of State for India.  He was their employer and their loyalties lay with him.  The governor general and governor had no disciplinary authority over them.  The civil service officers worked under the guidance of senior officers of their cadre.  With the passage of time a strong esprit de corps developed.  The services not merely looked after the Raj but also their own service interests and were appropriately labelled Steel Framework of the Raj.  Today, the civil servants recruit, train and discipline civil servants with no supervision or control by elected bodies of the people.  In the course of time they were to become an invincible power.

For the smooth running of their charge the district officer was always in touch with the freshly created notables of the district.  As time passed, the need was felt to institutionalise this practice of informal consultations.  In the name of giving India “the benefits and blessings of free institutions” in order to overcome “our weakness and our calamity”, Prime Minister Gladstone instructed Governor General Rippon (1880-1884) to initiate reforms.  He was met with “the fears of officials ‘who have strongly ingrained in their minds … that no one but an Englishman [read civil officer for Englishman] can do anything’”(Smith V.A. 1981, Oxford University Press).  More reforms followed.  The local institutions created at the district and tehsil level had elected as well as nominated members, however the Deputy Commissioner who was also the Collector and the District Magistrate exercised total control over the new bodies.  For example, he had power to veto resolutions.  He approved the budget.  The officers of the local bodies were officers of the government and were not the employees of the local body.

The process began by Gladsstone and Rippon was followed by their successors.  The Morley-Minto reforms of 1909 and the Montague-Chelmsford reforms of 1920 enlarged the participation of Indians in the affairs of the government.  The process found culmination in the Government of India Act 1935.  The part 2 of the Act incorporated the federal principal, but independence preceded its implementation and it was not enforced.  The important reforms introduced by these laws culminated in discarding the practice of nominating members to the district and provincial bodies.  Some subjects such as agriculture, education, health, irrigation, revenue collection and building and roads were transferred to the province.  The scope of popular electorate was increased but far from the extent of allowing all adults to vote.  On account of stringent qualifications on the eve of independence only 11 percent of the adult population was eligible to vote (Gill, SS, The Dynasty, 1996, pp 28).  Not touched, however, were the rights of the all-India services and their control by the Secretary of State?

The Constitution of India as adopted in 1949, not withstanding the important amendments made in Part IX relating to the Panchayats and Municipalities failed to take away governance from the hands of the salaried officers of the state.  The inadequacies of governance embedded in the Raj persist till today.  India’s first Prime Minister “Nehru adopted the colonial system of administration in its entirety.  The Constitution of India cannibalized the much maligned Government of India Act of 1935 to the extent of incorporating 235 of its sections.  The entire judicial and administrative framework of old rules and regulations and procedures was also adopted whole sale.  No wonder that this mode of transfer of power did not bring about the sort of radical transformation the national leaders had been talking about” (Gill S S, pp 30).

Apart from the steel framework of the administrative services, the secret services of the Crown were another powerful weapon of the British rulers.  At the top, as someone has said, there are no loyalties, only rivalries.  The rulers are keen to be informed not only about enemies but also about friends and superior officials.  These services were and have remained an untouchable holy cow.  The Section XVIII of the Government of India Act, 1858, the mother of all the power of the secret services, says “Any Despatches to Great Britain which might if this Act had not been passed have been addressed to the Secret Committee of the Court of Directors, may be marked “Secret” by the authorities sending the same and such despatches shall not be communicated to the Members of the Council, unless the Secretary of State shall so think fit and direct”.  As the members of the council of the state of the yesteryears were, so the ministers of the government today remain ignorant of the secret service reports.  The label SECRET is wantonly used by senior officers of the state to keep their handiwork hidden away from public scrutiny.   When I saw him in his grand office in the North Block as Home Minister of the Government of India, I took the respected communist leader Inderjit Gupta aside and holding him by the arm whispered in his ear “All your life, you and your communist colleagues were the subject of constant vigilance and atrocities directed from this very office and has not the time come that the work of the secret services of India be regulated by law.”  Inderjit smiled which I took to mean “you know I cannot do it, they are much too powerful”.  A former Secretary of the Ministry of External Affairs revealed in a discussion that proposals previously approved by the minister and prime minister get suddenly dropped for reasons not known except that an anonymous voice whispered in the ears of the prime minister.

In the independent and free India the power and the influence of the administrative services including that of their important component, the secret service has remained practically unaltered.  To get anything done one has to go to a government servant who alone has the power to deliver, for good or for ill.  The great leaders of India were aware of the problem.  In his autobiography written from jail, Jawaharlal Nehru wrote “But of one thing I am quite sure, that no new order can be built as long as the spirit of the ICS pervades our administration and or public services”.  Nehru went on to observe: “Therefore, it seems to me quite essential that the ICS and similar services must disappear completely, as such, before we can start real work on a new order (Gill, pp 70)”.  In The Dynasty, S. S. Gill, himself a retired officer of the Indian Administrative Service and one of the most perceptive observer of the Indian scene informs us:

“During the heady days of the freedom movement the national leaders were very allergic to the use of police force.  At the Lucknow Congress, 1936, Nehru had declared ‘A government that has to rely on the Criminal Law Amendment Act and similar laws … is a government that has ceased to have a shadow of justification for its existence’.

“In a letter to chief ministers of Bihar and Madras, he wrote on 10 August, 1948 ‘we are getting very unpopular in other countries and our reputation now is that of a police state suppressing individual freedom’.

“And in May 1949 he told Pandit Pant, chief minister of UP, ‘More and more we have to rely upon our administrative and coercive apparatus of government … In this process we become more and more the prisoners of that very administrative apparatus.’”.

Jawaharlal Nehru and his successors proved unable to change the old system of the exercise of state power.  Conferment of authority over the so called development expenditure undertaken in the recent decades with great fanfare abysmally falls short of the transfer of power to the level of grassroots.  The basic elements of the real power of the state are:  power to arrest, detain, prosecute, and levy fines and penalties and to adjudicate, in short to maintain law and order in a manner which is considered fair and proper by the people in the immediate environment.

The intensive involvement in the day to day running of the government, lack of knowledge and experience about what can be done, the vested interest in maintaining the status quo and above all, the formidable power of the system of governance relative to its rivals stood in the way of restructuring the foundations of the system of governance devised by the British to preserve the empire and prevent its subversion.

The state of Pakistan presents the most glaring example of the predatory working of the system inherited from the British days.  Six presidents, twelve elected prime ministers and ten parliaments have been dismissed during the last six decades.  The nexus of civil and military officers, the landed gentry, industrialists, big traders, compliant politicos, smugglers and plain thugs have done fabulously well at the expense of the overwhelming majority of the people.  The rate at which they have amassed wealth and privilege is the envy of the ruling elites, the world over.  An unwritten compact has emerged between the ruling elites on the one side and the administrators at the district level on the other side.  In lieu of the political protection of the system of governance and allowing the ruling elites, legally and illegally, to amass power, wealth and property under the signatures of district authorities, the latter officers are free to loot and plunder as much as they can. 

During the same period, India seems to have ended up with a similar genre of the ruling elites with the difference that the place occupied by the military in Pakistan has been taken over by politicos, with the military relegated to a lower position as partners in compliance.  A powerful nexus of administrators and politicos has taken roots with identical results for the people on both sides of the border.  Poverty, ignorance, disease, lack of nutrition, oppressive social order depriving the weak and the poor of the equality of opportunity, decent quality of life and honour and dignity remains their lot.  They stand marginalised as never before.  No wonder that the federal system has not worked as envisaged by the fathers of the nation.

In years immediately following independence, political leaders were in close touch with the people.  Tensions surfaced between the administration, which wielded all power, and the local leaders who aspired for a share of the pie. First the politicians tried to browbeat the administrators by pressuring the concerned minister to transfer inconvenient officials. But the success rate was rather low.  It was not the individual who exercised power but his chair.  In the end they were all alike.  The successor proved no better than the predecessor; however, officer who got transferred was inconvenienced.  Soon the district officials also realised that the security of tenure, as previously available was no longer there.   Gradually the two antagonists evolved a modus vivendi whereby they accommodated one another’s wishes and convenience. The bonhomie between the two traditional adversaries, officers and politicos, has now reached a stage where a deputy commissioner or superintendent of police seeks the help of the local MLA and MP when the people, fed up with his lack of response or misdeeds, start an agitation for his transfer, the only possible remedy available.  The politician protects him against the wrath of the people. As a quid pro quo, the politicians use these officers to get their own dirty work done. Thus they have become collaborators in corruption.

In his book The Dynasty, S. S. Gill observes:

The judicial system, instead of protecting the weak, actually favours the strong.  The legislators -- the makers of law – strive to operate above the law.  The electoral system, designed to give a voice to the downtrodden, is manipulated to exclude them from the electoral arena.  The police, instead of controlling crime, patronizes the big-time criminal.  In all important spheres of national activity, it is the law which adjusts to the individual, instead of the individual adjusting to the law.” Pp 32.

The only way to overcome the perennial crisis of the state and the polity is by creating conditions in which Social Contract, the basic ingredient for a republic comes into being.  None exists at the moment nor was it ever intended under the existing laws.  That the British paid the ultimate penalty by quitting India should serve as a warning to the successor governments.  Due to the absence of Social Contract very few are prepared to help the police catch a criminal.  Very few are eager to volunteer evidence before a court of law.  Neither the police nor the people have confidence in each other. 

The district level officers have to be put under a new command.  At present they work under the titular command of the predatory elites at the union and state levels.  This command should be passed on to the elected bodies at the level of the district and below in a manner similar to that exercised by the people in the United States of America.  The elected executives of the local bodies should be made jointly and collectively responsible.  What the people can decide at the level of smaller population unit should not be referred for decision and implementation to a higher level. The colonial system of police and magistracy should be replaced with a dispensation in which justice and fair play in day to day matters of governance is not only done but seen to be done by people in the local environment.  The local governments at the level of districts and below may be delegated powers in the following subjects:

1.  Administrative and financial control over its police, magistracy and jails to discharge the responsibility of maintaining law and order.

2.  Power to raise revenues and utilize them including the authority to levy taxes on income, wealth and land.

3.  Full authority at grassroots level over the revenue staff to ensure that the record of ownership and possession of real estate and agricultural land is properly maintained, the patwari and his superiors perform their functions justly according to law.

4 September, 2006