Thus spake Nitin Gadkari, Union Minister for Road Transport & Highways and Minister for Micro, Small and Medium Enterprises. It is as if the Delphi’s oracle has spoken. Narendar Modi 2.0 would do well to listen. Not assume that it was meant for Babulog. The direct, simple, straight speech was brutal and sharp and aimed at total lack of Governance among the Governing class. It is not confined to bureaucracy. The Ministers and Ministries are at the helm. They cannot absolve themselves of the blame and plead helplessness. We voted Modi big, not once but twice, with a comfortable majority not to offer excuses, and after 6 years in office, with four more to go.
Nitin Gadkari spoke his heart out. And the choice of words in the vernacular (Hindi), was not sarcastic and aimed as barbs. They were incisive and meant to hurt. The occasion was the virtual opening of the new National Highways Authority of India building in Dwarka, Gujarat on 26th Oct,2020. He was truly ashamed and disgusted when he laid into the NHAI officials. But he posted a smiling visage to tell how sick he felt even when camouflaging his true feelings.
OMG. He spoke what the common man talks day in and day out, in street corners. But he cannot reach the ears of the powers that be. Leave alone for a responsible and responsible attention, for even being heard out. The reformist Premier P V Narasimha Rao made ‘indecision’ a famous ‘decision’ by itself. Add to his ‘law will take its own course’’, ‘indecision too is a decision’, is his fabulous contribution to the lexicon in governance. It is truly amazing to note that it was this ‘indecision’ man who took India on the reform path in 1991.
Delay and indecision are the bane afflicting governance, like no other viruses. Covid19 is nothing compared to it. They are present forever and everywhere. The opportunity cost arising from delay and indecision, if computed on the economic or commercial scale, would rival the GDP figures. We have rarely, if ever, computed such costs. They would be mind boggling, if we did, but unlikely to goad the ‘delayers/indecisers’ to refrain from such conduct. Nitin Gadkari hit hard but to what effect?
As a practicing lawyer one is rudely aware of the economic losses that governments’ suffer in terms of pursuing wasteful litigation. Nani Palkhivala had pointed out that, on an average, over 50% of the pending litigation, was always associated with the government. They rarely took the call to ‘boldly decide but always took the easy route to leave it to the court to decide’, as Justice Krishna Iyer put it. Unwillingness and inability to decide are rampant and it costs dearly the exchequer in terms of inestimable time-cost and money-cost.
Nitin Gadkari boldly alluded to a contractor’s claim and his advice to the offocials to try and settle a claim of Rs.475 crores for Rs.375 crores. Alas, not to be. Ministry indulged in avoidable litigation which led to a loss of more than Rs.1000 crores, due to the delay. Who was accountable for it? Who would compensate the State for the State? No one . We The people lost it for good and ever.
In the name of disciplinary action, we are aware of departmental proceedings for a ‘decision taken’ and ‘loss caused’. Have we ever heard of proceedings initiated against officials for not deciding or delaying a decision? Never. There is thus no accountability or consequences from delaying or not deciding. On the other hand, since their ‘decisions’ could be called into question, it seems to suit them not to decide or delay, and leaving it to the next in line to decide. Shameful state of affairs this, and Nitin Gadkari flagged it off in colourful language, which is best enjoyed, when not translated.
What can Narendra Modi do? For starters, he can appoint a Committee of Experts in the domain of say Taxation or Commercial claims in Arbitration, at whatever stage, those with impeccable credentials and integrity, to examine the pending disputes. And recommend closure with solutions or compromises of mutual benefit. After much pushing, cajoling, prodding Central Board of Direct Taxes came out with a decision not to file appeals before High Courts and Supreme Court, from orders of the Tax Tribunals involving amounts less than say Rs.1 and 2 crores. That itself has enabled closure of a large number of cases, unclogging humongous sums caught up in litigation for all stakeholders.
Pendency is a huge menace in judiciary. As Nani Palkhivala said, we are worse than snails in a snails’ universe. While the world has shifted gears to Rolls Royce, we are still riding on snails. There are any number of cases pending before High Courts and Supreme Court, which may be covered by law already decided. Just that, they are in queue waiting to be listed, know not when. There may be any number commercial litigations being pursued or defended by Governments, only because their officers were scared or unwilling to decide. They have made procrastination into an art form now morphed into indecision awaiting a decision from a court of law, so that they are rid of the responsibility to decide. Shame.
Nitin Gadkari’s speech must become compulsory syllabus for trainee administrators. Vignettes from it must be broadcast daily in the corridors of the Ministries, as hard not gentle reminders .More importantly, Modi 2.0 would do well to forthwith constitute a Committee of Experts in the domains of tax and commercial arbitration, and seek their recommendations on pending litigations. On the need to pursue them or seek a closure by way of compromise. The pandemic times may be best suited for it for we cannot afford to waste a crisis.
Beyond all this, for governance to have meaning, there must be reward and punishment, not of the usual generic kind. There must be reward for those who decide and not procrastinate or delay. Equally, punishment for those who delay and not decide as a matter of convenience. While giving confidence to those who decide honestly with integrity, that their decisions would be supported, even when wrong or mistaken, there is dire need to send home a strong message that delay and indecision can never be made virtues of, for lasting a lifetime in the services. Let Nitin Gadkari first play the speech to his neta Narenda Modi and the Cabinet and let us know how and what they ‘decide’.
(Author-Narasimhan Vijayaraghavan- is practicing advocate in the Madras High Court)