Sunday, November 18, 2018
 News Details
Good Governance amidst Judicial Overreach?
Straight Talk

K B Jandial

Since coming of Modi Government at the Centre in 2014, 25th December is being observed as Good Governance Day (Susasan Divas) to commemorate the birthday of Atal Behari Vajpayee by fostering awareness among the people of accountability in government. India became the only country in the world that observes Good Governance Day on Christmas and declared it as working day. Good governance has now come under sharp focus and a talking point in the country.

After aggressive celebration of Good Governance Day and connected enthusiasm in the last four years the people have stopped looking for good government but only good governance. But even promising, as did by Modi in his 2014 election campaign, ”minimum Government, maximum governance” how can the contours of the Government be overlooked as it is the politicians who make a Government good or bad by their conduct and manoeuvrings. BJP, however, claim that 2014 mandate is for good governance, thanks to scam and policy paralysis hit UPA government.

What exactly does ‘Good Governance’ mean and how it is different than ‘Government’? ‘Governance’ is what the Government does. ‘Governance’ is a dynamic exercise of management and power, while government is the instrument that does it. The term ‘Governance’ was first time used by the World Bank in 1989 in its report on African economies. It used the expression “crisis of governance”. But ‘crisis of governance’ doesn’t convey much unless one defines ‘governance’. The World Bank initially defined it simply as “the exercise of political power to manage a nation’s affairs”. In 1992, the World Bank published a report entitled, Governance and Development, which explored the concept of governance further and its application. It was redefined in 1997 as a necessary precondition for development. It considered good governance as an instrument of holistic and integrated human development.

PM Modi’s mission of good governance is through “Seva Parmo Dharma”. This is in consonance with true Indian ethos of ‘service is the ultimate duty’. Service to humanity is the core of every religion. Is it mere a slogan like Indira Gandhi’s ‘mantra’ of ‘Garibi Hatao’?

Even though PM Modi seeks to provide good governance to the people by invoking religious edict, misgovernance continues to be the commonality in all States. Corruption, money and muscle power influencing election of people’s representatives, favourtism, vote bank politics, compromising ethics, rules & regulations etc are some of the huge challenges to good governance. So, the Good Governance is much beyond the mere observance of the Day and Govt inspired publicity. It has to be something more.

Whatever objectives have been listed out by PM Modi for his Govt, Good Governance has to make the life of people comfortable, easy access to all facilities, sincere implementation of rules and regulations and justice to all.
Good Governance encompasses almost everything that is good for the citizens. Kautilya in his treatise Arthashastra propounded the qualities of good governance by Kings. “In the happiness of his subjects lies his (King’s) happiness; in their welfare his own welfare, whatever please himself he shall not consider good”. It sums up what a good government and good governance have to be.

The NDA Govt had announced five broad objectives for good governance. These are to make people aware about the Government’s commitment for providing a transparent and accountable administration in the country; to enhance the welfare and betterment of the people; to standardise the government functioning and to make it a highly effective and accountable governance for the citizens; to implement the good and effective policies to complete a mission of good governance in India; to enhance the growth and development in the country and to bring citizens closer to the government to make them active participants in the good governance process. Modi’s mantra is “citizen first”. Laudable goals for any Govt, indeed!

Good Governance has to have some basic features. These include participatory governance i.e. civil society has opportunity to participate in formulation of development strategies; rule of law i.e. a fair, predictable legal framework enforced evenhandedly with independent judiciary; transparency i.e. the people are empowered with full information about the Govt decisions, functioning and activities; accountability i.e. Government is accountable to the people and it can only be enforced if there is transparency & rule of law responsiveness i.e. to serve all sections of population and their problems are addressed quickly; equity & inclusiveness i.e. to strive for wellbeing of all irrespective of caste, colour or religion; effectiveness & efficiency i.e. processes & institutions’ outcome meets the needs of the people and sustainable use of resources.

Successive Govts have been taking measures that can be called initiatives towards good governance, To a few there is RTI Act that empowered the common man, universalizing banking system to fund the unfunded people, quick access to public services through computer, increased digitization of Govt activities, e-commerce, e-governance, Digital India, financial inclusion of have-nots in banking sector through Pradhan Mantri Jan Dhan Yojna, electronic transfer of subsidies, some social security schemes etc.

While endeavors to transform governance into good governance, no doubt, are afoot, is it really good governance? Are the Governments, be it at the Centre or in the States, working as per rules and regulation at all levels? Are the people getting justice? Is rule of law being applied everywhere with fear or favour? Is Govt functioning at all levels exposed to transparency? Merely enacting transparency laws and keeping these on the statute book are sufficient to make Govt functioning transparent? Are authorities sincere in parting with all the relevant information willingly without causing serious impediments in the process? There are host of similar questions that haunt ordinary citizens and the answers to most of the questions are in negative.

The Lok Pal Act was enacted by the Parliament in 2013 in the backdrop of Anna Hazare mass movement and after a great of debate and fanfare but even lapse of almost four years the institution is nowhere to be seen. And where ever such institutions exist their recommendations are gathering dust in the shelves of the Govt offices. In a State where corrupt is not punished what good governance one can expect? All accused in the high profile 2G scam walked away with all irregularities and possible malpractices at highest level that speaks volume for our fight against corruption. No senior political leader or bureaucrat with exception of Lalu Yadav, Madhu Koda, then coal Secretary and a few others, had been punished in India including J&K. It can easily said that there is rampant corruption but no corrupt!

In our “reformed” electoral system, leaders with criminal record and money power not only become people’s representatives but are also honoured with coveted position of Minister. In recently held electoral “dangal” in H P, five ((42%) out of 12 Ministers in HP have criminal cases with eight ( 67%) are crorepati while in PM Modi’s home State of Gujarat, three( 15%) out of 20 Ministers have criminal cases with 18 ( 90%) are crorepati. What type of governance one can expect under such type of political leadership?

The most important yardstick to measure good governance is judicial overreach into the area of governance and legislation. The executive and legislature are providing space to the third pillar of our democracy-judiciary, to intervene to dispense justice to the aggrieved citizens or the society. The growing popular perception in India is that the Courts are practicably running the Govt. It may not be wholly true but can’t be dismissed as totally false as well. The judicial overreach is only possible when there is either governance paralysis or misgovernance giving cause of action to the society to seek judicial intervention. When the two pillars of the democracy- executive and legislature, exited their responsibilities, it is natural for the third pillar, judiciary, to step in. Then why should anyone accuse the judiciary of “tyranny of the unelected”, as once christened by no less than a legal luminary, Arun Jaitley and important Minister in Modi’s cabinet?
Which is the sector of governance where the courts are not intervening today to the embarrassment of the Government? Be it cleaning of Dal Lake or removal of encroachments; preparation of master plans or enforcement of land use; failure to transfer allotted land to statutory Development Authorities or acting against land mafia; registration of mere FIR or proper investigation of criminal cases through court monitored SITs; willful favourtism in selection & promotion, selective punishment to some Govt servants or sitting on cases of corruption involving favourite or influential officers; inordinate delay in taking up or tardy implementation of development or welfare projects.

Judicial overreach has become the order of the day (rather making up for non-governance). Why? The obvious reason is the inability of the Governments to come up with solutions and remedies well in time. Many opine that it has become a compulsion for the judiciary to step in to restore balance for the good of the people. They cite number of instances where “ judiciary became the last resort and the Supreme Court’s intervention as a last straw”.

Can good governance and judicial interventions run concomitantly? Perhaps not! It Judicial intervention in administrative and legislative affairs doesn’t go well with the concept of good governance but present initiatives to bring about paradigm shift in all levels of civil services in pursuit of good governance are, indeed, welcome and give hopeful signs with lot of ‘ifs & buts’. The road to good governance appears to be long and hugely bumpy.

(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])

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