By Justice P.B. Bajanthri
Transformative governance is a phrase we use so often in seminar rooms that we sometimes forget how difficult it is to achieve it in the corridors of an actual government office. I want to spend the next few minutes trying to close that gap—between the phrase and the practice.
The Foundation: Justice as the First Pillar of Governance
George Washington once observed that the administration of justice is the first pillar of good governance. It is a simple sentence, but it carries the entire architecture of a functioning state within it. No economic plan, no welfare scheme, no infrastructure project can outlive a citizen’s loss of faith that they will be treated fairly by the institutions that govern them. A road can be built badly and rebuilt. A subsidy can be miscalculated and corrected. But once a citizen concludes that the system itself is indifferent to whether it treats them justly, no amount of technical competence in other departments will restore that faith.
Lord Bryce put this even more precisely when he said that there is no better test of a government’s excellence than the efficiency of its justice system – because nothing touches the welfare and security of the ordinary citizen more directly than the feeling that they can rely on the certain and prompt administration of justice. Notice the word he chose: feeling. Good governance is not only a set of correct outcomes; it is the lived experience of citizens who believe, on the basis of repeated experience, that the system will not fail them when they need it most.
That is the thread I wish to draw out today across three ideas: first, that discretion without structure is the oldest danger in administration; second, that the judiciary’s role is to guard that structure, not to compete with the executive for the task of governing; and third, that accountability must be built into administration as a structural feature, not left to depend on the goodwill of any individual officer.
Discretion Without Structure Is the Oldest Danger
Lord Acton’s warning that power tends to corrupt, and absolute power corrupts absolutely, is quoted so often that we risk forgetting how literally true it is in day-to-day administration. Justice Douglas of the United States Supreme Court gave that warning its sharpest administrative-law expression when he said that where discretion is absolute, man has always suffered – that absolute discretion is more destructive of freedom than almost any other human invention.
This is not an argument against discretion itself. A state that tried to govern every situation through rigid rule would collapse under its own weight; discretion exists precisely so that administrators can respond to the particular facts of a particular case rather than forcing every citizen into the same mould. A licensing officer, a welfare disbursement authority, a municipal planning body – all of them need room to exercise judgment. The question was never whether discretion should exist. The question is whether it is exercised within a structure, or whether it is left to float free of one.
The object of good governance is never served by exercising discretionary power unreasonably, arbitrarily, or without application of mind. That objective is achieved only through justness, fairness, and openness – in consonance with the constitutional command, enshrined across several provisions of our Constitution, that every citizen be treated equally before the law and that the State act fairly in all its dealings. Wherever discretion must be conferred, it must also be structured – through clear rules, defined conditions, published parameters, and accessible remedies against its misuse. That is a duty as much of Parliament and the legislature as of the delegated authorities who exercise power on the ground each day. An unstructured discretion is not a convenience for the administrator; it is a liability waiting to surface, usually at the moment a citizen least expects it and can least afford it.
Let me give this some texture. In my years on the Bench, the petitions that troubled me most were rarely the ones alleging outright corruption – those, at least, the law knows how to recognise and address. The harder cases were the ones where an officer, acting entirely in good faith, had simply never been given the structure within which to exercise judgment. No guidelines. No precedent within the department. No published criteria. The officer filled that vacuum with instinct, and instinct – however well-intentioned – is not a substitute for a rule that a citizen can read, rely upon, and hold the administration to. That is the quiet cost of unstructured discretion: it is not always malice we are correcting; it is often simply the absence of a framework that should have existed from the start.
The Judiciary’s Role: Guardian, Not Rival
In our constitutional scheme, the judiciary does not compete with the executive for the task of governance – it safeguards the space within which governance may be legitimately exercised. Through the writ jurisdiction under Articles 32 and 226 of our Constitution, and through the remedies of mandamus, prohibition, certiorari, habeas corpus and quo warranto that our courts have inherited and refined over seven decades of constitutional practice, the judiciary stands as the citizen’s recourse against arbitrary, mala fide, or colourable exercise of power – against decisions taken for an improper purpose or on irrelevant considerations.
This is not adversarial to good administration; it is what makes good administration possible. As one noted jurist observed, the administrative authority must act fairly, reasonably, and according to law – that, quite simply, is the essence of administrative law. The executive remains, in the words of the political scientist J. W. Garner, the aggregate of all functionaries concerned with executing the will of the State as expressed in law. Judicial review exists only to ensure that this execution never drifts from that expressed will into the private will of the official exercising it.
I would ask this audience – many of whom sit closer to the executive side of governance than the judicial – to consider judicial review not as an external check imposed upon you, but as an internal discipline you would want for yourselves even if no court ever asked for it. An officer who structures discretion carefully, who documents reasons, who affords a hearing before an adverse decision, is not merely avoiding the possibility of an adverse writ. That officer is doing what good administration requires in the first place. The court’s scrutiny, when it comes, should ideally find nothing to correct – because the standard the court applies is not an exotic judicial invention; it is simply the standard that fair and reasonable administration was always expected to meet.
Accountability, Not Fear
I want to be clear that judicial oversight is not meant to instil fear in the honest officer. It exists to protect the honest officer as much as the citizen – because a bureaucracy operating within clear, fair, and transparent rules need never look over its shoulder. Our courts have repeatedly held that public functionaries must reinforce good governance, observe rules strictly, and adhere to the rule of law in public service – and that no functionary is obliged to follow an illegal order merely because it comes from higher authority. That principle, though it sounds almost obvious when stated aloud, is one of the most protective doctrines available to a conscientious civil servant. It means that integrity is never merely a personal virtue an officer must summon in a moment of crisis; it is a legal shield the system itself provides.
Equally, our jurisprudence recognises that government must be upright and honest, and that a strong civil service must not yield to the pressure of its political masters when that pressure runs contrary to law. This is not a call for confrontation between the civil service and elected authority – the two must and do work together, and must continue to. It is, rather, a reminder that the loyalty an officer owes is ultimately to the Constitution and to the citizen, and that this loyalty is what elected authority itself depends upon for its own legitimacy.
The principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership – the seven principles of public life first articulated in the United Kingdom’s Nolan Committee report and since embraced by courts across our region – are not aspirational posters for the walls of government offices. They are enforceable standards, and it is the quiet, continuous work of judicial review that keeps them enforceable. When a court examines whether a discretionary decision was arrived at fairly, it is, in substance, testing that decision against exactly these seven principles, even where the judgment never uses those words.
Transformative Governance: What It Actually Requires
If I may distil all of this into three requirements for the transformative governance this forum speaks of:
First, natural justice as a floor, not a favour. No citizen should have a decision taken against them without an unbiased decision-maker and a fair opportunity to be heard. This is not a technicality to be satisfied on paper through a token notice; it is the substantive difference between administration that commands respect and administration that merely commands compliance.
Second, accountability as a structural feature. Systems of administration must be transparent enough that a citizen can question and review the action taken against them – not as an act of grace by the officer concerned, but as a right built into the system itself.
Transparency that depends on the temperament of the individual officer in charge is not transparency; it is luck. Institutions that wish to transform governance must build accountability into their processes so thoroughly that it survives every change in personnel.
Third, judicial review as a standing safeguard, not a last resort. The knowledge that administrative action is always reviewable by an independent judiciary is itself what disciplines administrative action long before any citizen ever files a petition. The most successful exercise of judicial review is, paradoxically, the one that is never invoked – because the administration, aware that it could be, has already held itself to that standard.
I would add a fourth, born more of practical experience than doctrine: institutional memory. Good governance that depends entirely on one able officer, one committed chairman, or one energetic secretary, rarely survives that individual’s transfer. Transformative governance, if it is to deserve the word “transformative,” must be embedded in systems, records, and precedent robust enough to outlast any single tenure. That, too, is a task in which structured discretion, transparent process, and documented reasoning all play their part.
It is fitting that this address precedes the NextGen Governance Awards, because the officers being honoured today embody precisely this synthesis of discretion exercised with integrity. Whether it is the Bangalore Development Authority’s work in citizen-centric urban governance and its grievance redressal initiative, or the individual contributions of officers being recognised today in water leadership, ethical governance, and inclusive education—each represents administration that has chosen fairness and accountability as the basis of its authority, rather than the mere fact of possessing that authority.
Let me leave you with the thought I began with. Justice is not one department of the State standing apart from governance—it is the guarantee that makes every other department trustworthy. A government that governs well is, in the end, a government that has internalised the discipline the courts exist to enforce, so thoroughly that enforcement becomes almost unnecessary. That is the tomorrow this forum aspires toward, and I am glad to have had the opportunity to inaugurate the conversation that will take us there.
—Justice P. B. Bajanthri, former Chief Justice, High Court of Judicature at Patna
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