High Time Public Service Commissions Ensure Modern Indian Bureaucracy Draws The Best Talent : Justice PS Narasimha

Speaking at the Justice ES Venkataramiah Centennial Lecture 2024 on 'Reimagining Constitutional Institution: Efficiency, Integrity, and Accountability', Justice PS Narasimha expressed how rising litigation of service matters signalled the need to review the quality of selections in Public Services.

He stressed that while the main objective of appointing Public Servants was for the betterment of the State, the trend has now emerged where the State is advancing the betterment of Public Servants alone. He opined :

"If we ask ourselves this question as to whether Public Service is geared to subserve the interests of the State or whether the State is subserving the interests of public servants, it seems to be clear that government employment seems to have become an end in itself."

"This position has given rise to enormous litigation on small issues leading to disputes of seniority, promotion, transfers, regularisation, etc. I think it is high time that the Public Service Commissions reflect on this disconnect or imbalance and ensure that bureaucracy in modern India draws the best of the talent, people of integrity and vision that can be an example to emulate by anyone across the globe."

Justice Narasimha on the other hand, lauded the essence of having a plural system of Election Commission in India to ensure that power is not concentrated within the hands of a single person. He expressed :

" Today we have an Election Commission which has plurality of thought, which I believe is any day better than an individual taking decisions all by himself. We often see the 3 members of the Election Commission addressing the nation in press conferences. This is a positive way of working with the institution. This has also earned the Commission its recognition not only in India but also abroad. This is an indicator of the maturity of democracy, where we have experimented and enhanced the capability of an institution. "

Here, Justice Narasimha was referring to the provision of having two additional election commissioners by way of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.

Notably, the Supreme Court in TN Seshan v. Union of India upheld the constitutionality of the Act and rejected the argument of Senior Advocate Nani Palkhiwala that three ECs would lead to decisional fatigue and administrative difficulties.

However, Justice Narasimha also flagged concerns over the conduct of panchayat and municipalities' elections by the State Election Commissions :

"I may also mention that an additional burden of conducting elections to the panchayats and municipalities is placed on the State Election Commissions through the 73rd and 74th Constitutional Amendments. There are concerns regarding their functioning that need to be addressed not only by the Election Commission, there is an equal responsibility on the legislatures, governments, and the courts."

Justice Narasimha explained the significance of Public institutions like the Election Commission, Comptroller Auditor General, UPSC, and Information Commission, which play a key role in making other democratic traditional institutions accountable. She stressed that such institutions become the fourth pillar of democracy- the 'Fourth Branch Institutions'.

Notably, he stated that Professor Bruce Ackerman termed such institutions' integrity institutions', which are manifestations of political influence. He elaborated on the other terms coined by various professors and scholars:

"Professor Mark Tushnet, on the other hand, borrows the terminology of the South African Constitution and calls them Institutions Supporting and Protecting Constitutional Democracy. Our Election Commission for a ready reference. These institutions have also been called “guarantor institutions” by Professor Tarunabh Khaitan, who defines them as tailor-made, specialised, and independent constitutional bodies that guarantee and enforce constitutional norms."

The 3 Tangents Of Fourth Branch Institutions

Justice Narasimha discussed that the 'Fourth Branch Institutions' become so due to 3 elements :

(1) Institutional Structure: refers to how some of these institutions are erected. Are they constitutional or legislated? Is their structure embedded in the law or is the Executive to prescribe rules to design the structure? Composition of these institutions, the appointment process, qualification, remuneration, termination etc

(2) Institutional Style: refers to how these institutions function. Process of decision-making, the status of the normative regulations requiring them to function accountably.

(3) Institutional Substance: refers to the subject matter, scope and extent of functions and duties of these institutions.

Justice Narasimha added that while some fourth-branch institutions were founded by the Constitution itself, several others were the brainchild of Parliamentary Statutes and exist as Statutory Bodies today which "fulfil constitutional norms through specialised and independent functioning, and that have similar features to constitutionally entrenched Fourth Branch Institutions."

In Conclusion, Justice Narasimha noted the 6 factors which may contribute to why institutions don't deliver or underperform. These include (1) capacity failure; (2) infrastructural failures; (3) lack of autonomy; (4) Enforcement failures; (5) Political Interference; (6) Overlapping mandates and lack of coordination.