Legislatures make laws (or change existing ones) to give effect to those policies.
Courts adjudicate in disputes whenever the new laws create such disputes.
So, what does the bureaucracy do?
It makes the rules for implementing the policies but which actually subvert it, distort the law and lead to disputes.
Subverted policies need policy changes, which need new laws. These lead to new rules being framed and they lead to new disputes.
And so on ad infinitum.
In this way the entire machinery of the state stays in business. Take away the bureaucracy and soon everything would collapse.
This sort of power was not envisaged by anyone. It is not accountable power. The bureaucracy, as a collective entity, is as near invincibility as Achilles was.
Hence the big question: how can it be made accountable and be controlled so that the policy preferences of elected representatives, after being revealed, can be implemented.
Matthew C Stephenson, an assistant professor at the Harvard Law School, in a recent paper*, starts from the premise, perhaps a faulty one, that elected politicians will control the bureaucracy. He forgets that self-interest often requires politicians to collude with bureaucrats.
The question he asks is: "How much influence should elected politicians wield over bureaucratic policy?" But the answer is not what you'd expect. He says the bureaucracy should be insulated from political control, not placed in its control to such a degree that the elected representatives can get their way always.
"Even if we stack the deck in favour of maximum political control by assuming that elected politicians are more responsive to voters than are agencies, and that agencies do not have any special expertise or other advantages, a majority of the electorate is still better off with some degree of bureaucratic insulation from political control."
That is a very British colonial construct and, in the end, the issue really boils down to what constitutes optimal control. Too much (as with Indira Gandhi) or too little (as with her father, son, Gowda, Gujral and Manmohan Singh) can both lead to very bad outcomes. Stephenson suggests the following hypotheses.
"First, when presidential struggles for control of the bureaucracy impose costs on voters by distracting the President from other tasks, the optimal level of bureaucratic insulation tends to be more extreme, closer to either total agency autonomy or absolute presidential control, because aggregate control costs are lowest when the President either does not try to influence the bureaucracy or can do so at no cost."
In our country, for example, a great deal of ministerial/prime ministerial time is spent in forcing babus to do as bidden. This cost is never taken into account. Rajiv Gandhi, for example, once said that the difference between flying a plane and running a country was that on a plane when you pressed a button, something happened.
"Second", says the author, "voters view bureaucratic insulation and direct political monitoring of the President as partial substitutes: both are costly means for reducing the variance of bureaucratic outcomes." The assumption here is that the bureaucracy keeps a check on ministers/prime ministers and vice-versa.
"Third, strategic voters can offset the costs of bureaucratic insulation by selecting a "biased" President who will invest substantial effort to shift bureaucratic policy despite the costs of doing so." Indira Gandhi?
"Fourth, when bureaucratic policy issues persist over a longer period of time, optimal bureaucratic insulation tends to be lower if presidential influence is purely temporary." Charan Singh, V P Singh, Gowda, Gujral, Manmohan Singh?
I particularly liked the following: "The analysis of optimal bureaucratic insulation may also have applications outside the administrative context. For example, it may contribute to our understanding of when, and to what extent, courts should be insulated from the influence of the elected branches of government."
The problem in India is that the courts not only have to keep an eye on the politicians but they also have to make the bureaucracy work. This often leads to fresh sets of conflicts, from which usually only the bureaucracy emerges victorious. For India, therefore, optimal control must mean only one thing: a permanent boot on the bureaucracy's throat.
<i>*Optimal Control of the Bureaucracy(https://lsr.nellco.org/harvard/faculty/papers/5)</i>
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