Is the Principal Secretary truly at fault in the Sprinklr Contract

The Principle IT Secretary claims that it is within his discretion to sign the Sprinklr contract without advice from the legal department. This seems to be without legal backing.

Generally speaking, Kerala government’s ‘Rules of Business’ say the Law department should be consulted on every contract being entered into by the government.

One of the clauses under the ‘Rules of Business’ allows an exception only for material contracts without consultation of the legal department. This might be the basis for the Principle Secretary’s argument of his discretion.

But the key word here is ‘material’. Material contracts are different from other contracts. Legal implications from material contracts are finite and bounded. If a contract for a few tons of steel leads to litigation, the most the state would have to pay is the price of the material. And there too the ‘Rule of Business’ sets upper limits on the amount allowed for the exceptions to be allowed.

When it comes to the Sprinklr, a contract for sharing medical data isn’t a material contract. It wouldn’t fall unders the exceptions allowed to the Principal Secretary. It even brings in additional privacy issues which we already saw. The possible legal implications are vast if every person whose data was shared decides to pursue litigation.

High Court’s Questions

Due to the increasing complexity of the administrative machinery, the judiciary in recent decades recognizes administrative discretion shouldn’t be seen mechanically. In line with this, the judiciary takes a presumption the public official is trying to do his duty honestly1 which is why the court went on to ask the secretary why legal advice was not taken. How this would proceed from here depends on the principal secretary’s explanation.

Furthermore, judiciary has followed an ‘Adequate Safeguards Theory’2 emphasizing on whether the procedure has adequate safeguards for those who are affected by the action. And this was the second question the High Court put to the Principal Secretary, how he is going to fix this situation.

Why would he do it

It is beyond reason why someone who is as senior as a Principal Secretary would make so elementary a mistake. Why didn’t he pass on a copy to the legal department? A reasonable inference would be that the Minister in charge of the department had an interest in the contract and wanted to get it done during the crisis without drawing attention to it.

Then why is the Principal Secretary willing to take the fall for the someone else? Because the IT department comes under the Chief Minister who is known for being vindictive towards civil servants who had not towed his line3.

Its plain to see for anyone who has been at a ministerial or at a joint secretary level and seen how government contracts work that this isn’t a case of a Principal Secretary breaking the law due to a crisis, but of an otherwise honest civil servant being forced by a minister.

This is the reason for Chennithala’s allegations. Even though he may have very limited understanding of how privacy works, he can see there is foul play involved here.