Conscience, not obedience

HARSH MANDER

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A powerful permanent civil service, selected on merit, is one legacy of colonial rule that India’s post-colonial political leadership consciously chose to preserve in free India. The higher bureaucracy retains, even sixty years after independence, many of its colonial cultural legacies of conspicuous trappings of power, including sprawling bungalows, liveried staff, flashing car beacons and peremptory sirens. Despite these symbols, the transition of post-colonial India to a parliamentary democracy entailed the epochal transformation of the permanent bureaucracy (at least theoretically) from masters to servants. The people were now sovereign, and exercised their sovereignty through public representatives elected through universal adult franchise. The bureaucracy was now the servant of the people, not their remote and unaccountable master.

It is often believed this metamorphosis in a democracy of the permanent executive from master to servant required that the highest ethic of a civil servant now becomes one of obedience to the will of the people, as articulated in the will of the people’s representatives. I will argue that on the contrary, precisely because the civil servant is a servant of the people and the Constitution, his or her highest duty is not of obedience but of conscience. I believe that a democracy guarantees to civil servants not only the right, but even enjoins on them the duty to dissent in response to the call of their conscience.

What is most germane in assessing the contribution of the civil service to the people and the country is the mettle with which it stood up in times of national crisis. In the early relatively idealistic decades after independence, the civil service lived up better to the expectations of the people, especially in the way it helped relief camps for millions of refugees uprooted by the country’s bloody Partition, and organized their rehabilitation. This remains to date arguably its greatest contribution to nation-building. It also succeeded in abiding by and operationalizing the steely Nehruvian political resolve of restraining divisive and communal organizations and politics, as a result of which the troubled and wounded country was remarkably free of communal riots after Gandhi’s assassination at the hands of Hindutva extremists.

This era of communal peace endured for more than a decade, until the Jabalpur riots in early 1961. Fault-lines had of course already begun to appear – such as when in Ayodhya the district magistrate K.K. Nair opened the locks of the Babri Masjid for Hindu worship in 1949, laying the foundations for a communal dispute which was to tear apart the country more than three decades later – but these were relatively rare. The country could still rely on the higher civil service to act without communal partisanship in religious and ethnic disputes, despite its many other betrayals and failures – including growing corruption.

The first spectacular nationwide mass betrayal of the civil service was during the Emergency imposed on the country in 1975 by Prime Minister Indira Gandhi. She suspended the Constitution and its guarantee of fundamental rights, and threw tens of thousands of opponents to what they believed to be her corrupt and oppressive regime into jails on openly trumped-up charges. A judicial commission led by Justice Shah, which later investigated these traumatic and shameful 18 months of suspended freedoms, famously observed that during this phase, when the civil service was asked to bend, it crawled. In other words, its fault was not that it failed to obey, but that it obeyed too uncritically and unresistingly illegal and venal instructions of its political masters.

 

The same failure to resist illegal orders with devastating consequences marked official behaviour in virtually every later hour of major national crisis, such as: the active complicity of the permanent executive in the denial of human rights, fake encounter killings and suppression by brute force of militant Maoist Naxalite uprisings and separatist insurgencies in the North East and later in Punjab and Kashmir; the 1984 massacre of more than 3000 Sikhs in the wake of Indira Gandhi’s assassination at the hands of her Sikh bodyguards in 1984, when the ruling Congress party openly engineered the massacre for partisan political gains; failures to hold criminally accountable the Union Carbide in the poisonous gas leak which killed thousands in Bhopal in 1984; the slaughter of unarmed Muslim youth at Hashimpura by paramilitary soldiers in 1987; the riots in Bhagalpur in 1989; the demolition of the Babri Masjid in 1992 and the slaughter that followed in its wake in Mumbai and Bhopal; and the state-sponsored massacre in Gujarat in 2002.

With the exception of a few solitary – and sometimes heroic – voices of conscience and dissent from within the ranks of the bureaucracy, as a rule the civil services willingly capitulated and unresistingly obeyed instructions to deny people their constitutional rights, including to life, liberty and democratic dissent, and failed to extend equal protection of the law to people because of their religious or ethnic identities or economic powerlessness. The unsung and mostly unknown heroes from within the bureaucracy who refused to obey unjust and illegal orders could never gather sufficient critical mass for the permanent bureaucracy to act as a decisive bulwark against divisive and communal politics. The bureaucracy must carry, therefore, the greatest historical blame for failures of the state in these times to extend equal protection of the law to religious and ethnic minorities and to impoverished people in general.

 

Even so, in the two decades that I worked within the civil service, I found that obedience was repeatedly upheld as the paramount virtue of a civil servant in a democracy. It was commonly advocated by official and political superiors that the duty of a civil servant is to obey orders of political masters without questioning their dictates, and to find ways to most efficiently implement these. Officers who dissented were not just being inconvenient, but were actually stepping outside the boundary laid down for the permanent unelected executive in a parliamentary democracy.

 

I apologise for a brief autobiographical interlude at this point, unavoidable if I am to develop my argument. Like other colleagues who sought to abide by their conscience, I found myself tossed around from posting to posting, often every few months during my twenty years in the civil service. Though this repeatedly caused me unfailing heartbreak, it was a known hazard of the profession which I knew we needed to learn to stoically accept. I was by no means the first to face this, and will certainly not be the last. In my early years of service, the Chief Secretary would sometimes call me after an untimely transfer and say that he was proud of my stand, but regretted his inability to protect me. More often, there was no call and no apology.

However, I reached a low watershed when once I was posted out of a district following a communal riot. The Chief Secretary called me to the secretariat office and sternly counselled me: ‘I believe that the time has come when you need to decide about whether or not you wish to continue in the service. The terms on which you are trying to engage with service of the government are just not acceptable. If the government tells you to throw poor people into the ocean, you have only two choices: you either comply by tossing them into the ocean, or you quit. But you are adamant, saying that you refuse to obey and throw the people into the ocean, and at the same time also refuse to quit. That is simply not acceptable. In a democracy, your duty is only to faithfully obey.’

I found myself deeply troubled by this interview. What my official superior communicated to me that afternoon was in effect that by refusing to obey my political and official superiors, I was not only causing problems and annoying them. I was failing to abide by the limitations that a civil servant must accept in a democracy by wilfully disobeying my superiors. My disquiet arose because I was told that I was acting in ways that were ethically flawed.

In this instance, I had been summarily moved out of my district charge, after I defied instructions from ‘above’ and instead ensured that leaders of the Hindutva organisations who had dangerously inflamed passions around the Ayodhya Ram Janmabhoomi movement and led the killings and arson in communal rioting were arrested and slammed with grave criminal charges, including of murder. I understood that this would anger the government of the day, more so because it was of the political party which had led the agitation for the building of a Ram temple at Ayodhya at the site of the medieval Babri mosque. But I could not swallow that my actions were ethically wrong because although I disobeyed political and administrative orders, I felt that I had tried in a small way to uphold the secular democratic Constitution and its pledge of equal protection of the law to people of all faiths.

 

My disquiet led me to unravel what I believed instinctively to be the flawed ethics of my official superior. In stark terms, the question was: What is the highest duty of a civil servant in a democracy? Is it obedience or conscience? Does a civil servant have the right to dissent and even refuse to comply with orders that violate what she believes to be lawful, just and humane? My hunch was that conscience and dissent must be the paramount value for any public servant.

If obedience indeed is the highest ethic of a civil servant, then in the excesses of the Emergency, or indeed the violation of human rights in insurgencies, or majoritarian partisanship in communal violence, civil servants could honestly plead that they were just faithfully implementing orders from their ‘political masters’. How could they be held guilty of complicity in grave injustice against defenceless citizens? Yet I was not alone in regarding these as shameful, even a criminal, abdication of duty by civil servants, with catastrophic outcomes for the people and the country. Where then was the moral paradox?

 

I believe that if there is indeed a duty of obedience, then it can only be to the lawful officially stated and publicly espoused objectives of the government, not the unlawful unstated directives of elected political or superior administrative actors in the executive. Let me illustrate. The official position of government is that legislated land reform laws should be faithfully implemented. But the unstated orders of political superiors are almost invariably that powerful landowners should not be dispossessed of their land holdings. Whenever I tried to distribute ceiling surplus agricultural land to the landless, or restore land illegally expropriated from tribal land holders, ministers and local elected representatives would react with horror as though I was a closet Maoist.

They would instruct me, sometimes even supported explicitly at the highest levels of the state government, to stop implementing these progressive land reform laws. I developed a standard answer to such importunate demands: ‘I did not make the law, but I have been given the duty to implement it. If you think that the law is unjust, please go to the legislature and change it. But you cannot first pass laws in favour of the poor, and then order me not to implement them. I am not bound by these orders.’

 

The same chasm between the stated legal policies and the actual will of the executive can be found everywhere. The stated policies are for fair and non-partisan action in communal, caste and gender violence, but the unstated political or administrative directives often advocate biased action against vulnerable and oppressed castes, religious and ethnic minorities and women. The law enjoins respect for human fundamental rights, but there is often open and unapologetic political endorsement, even at the highest levels of the executive, for torture and encounter killings. The law makes corruption a criminal offence, but in practice this is endorsed as the grease that makes the giant sluggish state machinery function.

I can understand the claim that it is the duty of public officials to faithfully implement orders of the political executive and the administrative hierarchy when these are lawful orders, in conformity with the official stated policies of government. In fact if officers are faithful to the stated policies and laws of government, then they are bound to implement land reforms and other progressive legislation, to protect oppressed and dispossessed minorities, castes and women, fight corruption and respect human rights. But the reality is that in obeying and implementing in letter and spirit these stated lawful policies, the officer will frequently be disobeying the unstated unlawful goals of the superior executive.

The civil servant who chooses to obey these unlawful directives cannot claim ethical defence in the duty of obedience of civil servants in a democracy, because even if faithful obedience is the highest duty of the official, it cannot be obedience to unlawful orders. I belatedly found my answer to my Chief Secretary: It is unlikely that the stated lawful orders of the government would be to throw poor people into the ocean. These could be illegal directives of my official superiors, but far from it being my duty to obey them, my only obligation is to resist and actually disobey these orders. Therefore, I can legitimately disobey, dissent and still refuse to quit the civil service, if I so choose to do so.

 

The problem, however, is not so easily resolved. Not all statutes or government policies are just and conforming to the interests of disadvantaged citizens. There are a whole body of laws and policies that I believe to be wholly unjust, such as those that vest security forces with special powers in troubled regions, laws that enable involuntary acquisition of land, laws that criminalize beggary and destitution, and policies to demolish urban slums, to name only a few. Does the civil servant have the right to dissent and refuse to implement laws and policies which contravene his or her conscience?

I have always believed this to be the case. The civil servant does not surrender this inalienable right to individual conscience even after joining public service precisely because in a democracy, a civil servant does not cease to be a sovereign citizen even while accepting the responsibility of becoming the instrument to implement the will of the sovereign collective of people as reflected in the will of their public representatives.

For instance, when I refused to obey official directives from the highest political executive to use force to crush democratic dissent in the movement against the Sardar Sarovar Project in the Narmada Valley; or to displace farmers of 22 villages in Singrauli for a super-thermal power plant without even an elementary rehabilitation plan; or to demolish urban slums; or to drive away or lock up the homeless and destitute, I feel that I disobeyed my superiors legitimately.

 

But I recognize that there can be reasonable unease about endorsing the ethical right of all civil servants to act in obedience to their conscience rather than the directions of the political executive, even when these conform to the law and the stated policies of the government. It can be argued that if every public official was free to disobey laws and policies which they regarded to be unjust, this could ultimately be a prescription for anarchy. But I would counter that: if every civil servant was bound to obey every official law and policy even if this contravened her conscience, then this could ultimately lead to fascism. And if the ultimate choice for my country is between anarchy and fascism, my choice would be for anarchy!

A story is told of the training of youth recruits by the Nazis. They were given puppies when they joined, and encouraged to develop bonds of affection with these little creatures. One day the commanding officer would order them to strangle the animal to death. Only if they complied, and that too without flinching, did they pass the test of being reliable Nazi workers. On the contrary many of us would find reliable, not only the officer who would flinch, but one who would stoutly refuse to obey such an order. Only such an official would have had the strength of character to defy, say the Emergency of 1975-77 or the 2002 carnage in Gujarat.

The question then is whether this right to act by one’s conscience is unlimited and unqualified for a civil servant. Clearly it is not. Suppose a civil servant believes in the Maoist project of the violent overthrow of the state, or secession to form Khalistan, and uses his offices to actually protect militants and promote insurgency, I would regard these actions as illegitimate. Likewise, if the official’s conscience leads to active complicity in the demolition of the Babri masjid, I believe the official has crossed dangerously, even criminally, the ethically permissible limits of dissent in public service.

 

There seems a paradox and a serious logical flaw here. But I would argue that there is none. The limits to dissent by public servants are laid down by the letter and spirit of the Constitution of India. The Constitution declares India to be a socialistic, secular democracy. I believe that when one joins the civil service, one must subscribe fully to the Constitution, and its basic features and values, as well as to upholding the integrity of the nation. If one’s conscience is in disagreement with the Constitution itself, then there is no legitimate space for such dissent in one’s duties as a civil servant.

Civil servants cannot ethically act on their beliefs in the course of their duties if they dissent with secularism for instance – interpreted as equal protection under the law and equal legal citizenship rights to all regardless of their faith, gender, caste, language, ethnicity and wealth. They cannot differ with other core features of our Constitution, such as the principle that the state must intervene to defend the rights of disadvantaged people, including through affirmative action; or reject universal adult franchise as just a sham democracy. They are not morally permitted to uphold untouchability, or violence against women and discrimination because of gender, or communalism, or bonded labour, or the deployment of violence as a legitimate instrument of political aspirations.

The Constitution, therefore, sets out the non-negotiable limits of dissent of public servants. It defines for those to whom accrue the powers of the state the frontiers of conscience and discretion. Civil servants must obey faithfully, defend and uphold the Constitution and all it stands for. But in the commodious spaces within the four walls of the Constitution, I believe the civil servant retains the right of conscience and dissent, of course against illegal orders, but even against lawful orders, policies and programmes that the civil servant believes to be unjust.

Is dissent in obedience to the call of one’s conscience (within limits laid down by the Constitution) just a right of the civil servant, or a duty? I believe that public officials are not servants of their administrative superiors, or of elected representatives, or even of the government that employs them. They are servants first of the people – especially of the disadvantaged and oppressed – and of the Constitution. In the service of these masters, they would do well to heed the example of Gandhi, who declared that he recognized only one dictator, and that was the still feeble inner voice of his conscience. If the voice of their conscience so compels civil servants, their highest duty is indeed to dissent. Only if they act consistently with their conscience and in conformity with the Constitution, would the people whom they serve be in safe and caring hands.

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