Perils of Government breaking Rule of law

Dr VK Bahuguna

The cardinal principle of good Governance is ‘Rule of Law’ and it is exemplified by equality of all citizens before the law and total avoidance of arbitrariness in use of power. It implies that the laws, their enforcement, are legally and explicitly regulated, so that no one—including the most highly placed official—is above the law. The legal constraint on rulers means that the government is subject to existing laws as much as its citizens are subjected to.The totalitarian regimes have been freely using the power and for them there is no meaning of Rule of Law but for a vibrant and biggest democracy like India we have fundamental laws which govern the citizen’s rights.  Article 14 of Indian constitution guarantees equality before law as well as equal protection of the law to all people within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. This means that equals will be treated equally.

2. The trigger to write this article is the news item in the media about some civil servants resigning, fighting elections and after losing or getting frustrated had clawed back in the service they left after pulling wires. The latest in the news relates to Mr Shah Faesal a 2010 batch Kashmiri Indian Administrative Service (IAS) who resigned on 9th January 2019 and formed a political party the Jammu and Kashmir People’s Movement (JKPM) in February 2019. He criticized the Central Government policies on Kashmir and promised a new brand of politics with many separatist leaders and started with much fanfare with slogan ‘Hawa Badlegi” (change will come). However, barring former PDP leader Javid Mustafa Mir the party did not attract any other established politicians. Among those who joined JKPM was JNU student leader Shehla Rashid Shora, who shot to prominence for anti-national sloganeering at the university. Faesal was arrested on 14th August 2019 after the abrogation of Article 370 while he was escaping the country. One of the most damning statements he gave in a BBC interview that in Kashmir either there are ‘stooges or separatists’, and said he would not like to be a stooge. So clearly he was donning a separatist hat. In fact since 2014 he has been tweeting against the government but no action was taken against him. He however, had a change of heart after he was released from ten months detention and quit the party he founded and also the politics in August 2020. Now in 2022 he has been readmitted into the IAS. One of the reasons apart from political one may have been the fact that his resignation was not accepted and why it was not accepted?. Secondly, as there were few cases in the IAS and IPS in Uttar Pradesh where some officers went abroad in United States employed themselves and after earning a lot for more than ten to 15 years came back and happily joined back the service and retired with full pension. In another bizarre case one IPS officer fought election lost and came back to service. This instance must have been cited as precedence in taking the delinquent or political Romeos back.

3. Such action of the Central and State governments have posed a serious question of transparency, accountability and propriety in running the governance with equal rule of law, integrity of civil services conduct rules and maintenance of transparency and equality in dealing with similar cases under the Article 14 of the constitution. On the one hand some lesser mortals all over in the central as well as state services are being charged, voluntarily retired and even dismissed for lapses and on the other hand a few officers get a license to abuse the government and fight election and get back with impunity. How can the government justify punishing Mr. HC Gupta an honest IAS officer who as Coal Secretary was incarcerated and languishing in jails for a minor debatable lapse of signing the file, whereas the overall responsibility was of the Minister (and at that time the then Prime Minister was the Minister of coal also). Can we assume that some All India Service officers can willfully violate the conduct rules? If this trend continues it will lead to anarchy in the administration and the government must not allow violation of conduct rules as it is sending a very bad message to the public. The Department of Personnel (DoPT) had sent clear guidelines for treating an officer’s long or unauthorized absence as deemed resignation. In this case of Shah Faesal and other such cases the ‘modus operandi’ is to keep the issue of accepting resignation or deemed resignation pending indefinitely till the net-working devise a new rule for the concern officer. It is because of this reasons there is a saying about DoPT’s working style among the corridors of government that ‘you show me the face I will show you the rule’ . On the contrary the Personnel Ministry and Central Vigilance Commission keep harassing many officers who cannot pull wires.

4. The time has come to stem this rot. The Prime Minister is a very busy office and in such cases it is the poor selfish and biased advisors who are responsible for such blatantly unfair and ludicrous decisions which were a rarity a few decades ago under the Central government. In case of Shah Faesal caser the government politically could have rehabilitated him after exonerating him from sedition charges in any other post under the Kashmir government but not set a bad precedent which is a violation of rule of law. There are ways to rehabilitate people like Faesal but for God’s sake please do not make mockery of All India Services Rules. It is for this reason that Judiciary is intervening in the domain of executive. The government must take corrective steps so that such cases of long absence of officers for ulterior reasons and taking the system for a ride are not repeated and fix up absolute accountability. 

(The writer is Chairman of Centre for Resources Management and Environment)