The last General Elections were different. Not in the sense of their outcomes but what came to be known about the internal deliberations within the Election Commission. There haven’t been very many occasions in the past when the differences between the Election Commissioners come out in the open when the election process is under way.
One of the Election Commissioners had apparently dissented when issues relating to violation of the Model Code of Conduct by Narendra Modi came up for consideration before the Commission. The issue was highlighted in some segments of the media.
The episode (if it indeed was one) also raises the following issues that are not related to the merits of the case but to the idea of dissent and the manner in which dissent is expressed: Should there be dissent/difference of opinion? What is the purpose of dissent/difference of opinion? Is there dissent/difference of opinion in the bureaucratic domain? Should there be a public display of dissent/difference of opinion?
In the Bhima-Koregaon case, Justice DY Chandrachud clearly articulated the need for dissent: “Dissent is a symbol of vibrant democracy”. No one will doubt that it is. Democracy thrives on difference of opinion. Debates are the essence of a democracy. There can’t be a debate if everyone agrees on an issue.
Long before the Koregaon case, the purpose of dissent was articulated pretty succinctly by Justice HR Khanna way back in 1976 in the ADM, Jabalpur vs Shivkant Shukla (AIR1976 SC 1207) case, when it was being argued that the right to approach the court for enforcement of Fundamental Rights was suspended during Emergency.
Justice Khanna, while dissenting with the majority, opined that “a dissent in a court of last resort …is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later discussion may possibly correct the errors into which the dissenting judge believes the court to have been betrayed”.
Ultimately, what Justice Khanna stood for, became the law. Dissent brings forth certain aspects of an issue that may not be held to be to be valid by majority at a particular point in time but keeps the door open for wisdom dawning at some later date.
The debate so far has been around the judicial and quasi-judicial domain where the dissenting individual(s) enjoyed the same status as others but had a differing point of view. There are indeed differences in opinions, as there should be, within hierarchical structures, like the bureaucracy, as well.
However, rarely do they take the shape of dissent as, once a decision gets taken, everyone down the hierarchy abides by the decisions and there is no public display of differences that may have existed.
Fear of being penalised
However, what is troublesome within the bureaucracy is the increasing tendency amongst the civil servants not to air their views even during the course of internal discussions on account of the perceived risks associated with airing such views. Moreover, such views don’t get to be known generally except when they get revealed in the context of an inquiry/investigation or in a subsequently written memoir.
The risks entailed in airing such differences of opinion in a hierarchical structure are much more as the superior authority can hold such a view against the officer and penalise the officer concerned through adverse mention in the Annual Confidential Report, transfer to a “punishment” post and the like. But, despite such risks, there are officers who do air their views in hierarchical structures as well. However, barring a few exceptions, they don’t necessarily go to town with such views.
As a civil servant, there were a number of instances when one was faced with such a dilemma. One such occasion was in 2003. When posted as Secretary, Horticulture in Uttar Pradesh, I got a cryptic written order from the Horticulture Minister to suspend a Deputy Director. Under the extant rules, the minister had the power to suspend this officer.
However, the directive did not list out any reason for suspension. The officer concerned was not only efficient but enjoyed a reputation of being honest.
An informal inquiry revealed that the minister was seeking certain “favours” from the officer. The officer had expressed his inability to comply. Hence, a directive was issued to suspend him. This was the prevalent strategy in the State at that point in time, to browbeat the officials.
The option before me was either to comply with the orders or face the consequences myself. Using a particular provision relating to procedures, I sent a dissenting note to the Chief Secretary for onward transmission to the minister. The Chief Secretary chose to sit on the file (red tape can be beneficial on occasions) and the minister could not muster the courage to speak to the Chief Secretary.
Hence, despite a written directive, suspension order was not issued. However, the minister did manage to speak to the Chief Minister in a different context. I never got to know what transpired between them but I got transferred. This was a small price (if at all it was one) to be paid to protect an officer from suspension.
Dissenting views are articulated in a number of domains and it should happen in a vibrant democracy. However, whether there should be a public display of such views is a moot point. What happened between CBI Director and Special Director some time ago or the press conference held by a few judges of the Supreme Court bring the institutions concerned to disrepute.
Take the honourable route
These were instances of not merely harbouring a dissenting view, these were public display of “dissent”. This is indeed worrisome. It may be a “sacrilege” to advise the honourable judges (one of them rose to become the Chief Justice) because only they decide what is right and what is wrong but as far as other institutions are concerned, they would best be advised not to resort to a public spat. There are honourable ways of settling a dispute.
The writer is a former Union Coal and Education Secretary