On contentious territory

Published : Aug 18, 2001 00:00 IST

The issue of the requisitioning by New Delhi of the services of three officers from Tamil Nadu raises broader questions relating to Centre-State relations and the tenets of federalism and State autonomy.

THE requisitioning of the services of three Tamil Nadu cadre Indian Police Service (IPS) officers by the Union government has rekindled the smouldering fires in the realm of Centre-State relations. To start with, the National Democratic Alliance (NDA) leaders demanded the dismissal of the Tamil Nadu Chief Minister following the arrest of the former Chief Minister and two Union Ministers. As taking action against the State government under Article 356 was considered not possible owing to the lack of requisite strength in the Rajya Sabha, the NDA government at the Centre targeted the State Governor and made her resign. Now the IPS officers have become the targets of the Centre's ire.

The Indian Civil Service (ICS) and the Indian Police (I.P.) service belong to the legacy of the steel-frame administrative system of the British regime. Under the Government of India Act, 1919, the Secretary of State had the full authority and power in all matters of recruitment, appointment, service conditions, discipline and conduct of the officers in India.

In framing the 1935 Government of India Act, the British Parliament appointed a Joint Parliamentary Committee which, in its Report, referred to a Memorandum submitted by the British-India Delegation urging that "future recruitment by the Secretary of State of officers who serve in the Provincial Government is incompatible with Provincial Autonomy" and that "the All-India Services ought henceforth to be organised on a provincial basis and recruited and controlled exclusively by the Provincial Government". (Rajamannar Committee Report, page 148)

The 1935 Government of India Act gave powers to the Governor-General in the matter of the appointment of members of the central services and to the Governor in respect of the provincial services.

Independent India retained the Indian Administrative Service (IAS) and the Indian Police Service (IPS). Article 312 provides for the establishment of one or more all-India services by means of parliamentary legislation upon the Rajya Sabha passing a resolution with the support of not less than two-thirds of its members present and voting. The All India Services (Amendment) Act of 1963 included the Indian Service of Engineers, the Indian Forest Service and the Indian Medical and Health Service. Of these only the Indian Forest Service was constituted. Later the Rajya Sabha passed a resolution for the creation of the Educational Service and the Agriculture Service. But many States decided not to opt for the two services. The Centre did not proceed further in the matter."

In no other federal constitution is there a provision for a service that is common to the federal government and the regional governments. The Study Team of the Administrative Reforms Commission on Centre-State Relations in its Report (September 1967) observed: "In a federal set-up to have an all-India service that serves the needs of the states but is controlled ultimately by the Union is an unusual feature."

A major objective of the Dravida Munnetra Kazhagam (DMK) has been to strengthen and protect State autonomy in federal India. The Rajamannar Committee was appointed in order to suggest suitable amendments to the Constitution so as to secure for the States the utmost level of autonomy. Regarding the all-India services, the committee observed: "Recruitment through the Union Public Service Commission may be discontinued." The committee recommended that recruitment to the all-India services be made by holding an examination confined to each State. It said that there appeared to be no justification for the constitution of any all-India service which relates to subjects that fall within the exclusive field of the State. It also referred to the feeling in the States ruled by the parties in opposition to the ruling party at the Centre that the all-India service officers are the agents of the Centre and may not carry out the policies of the elected governments of those States.

Based on the recommendations of the Rajamannar Committee and a follow-up report of a committee appointed by his own party, the DMK, Chief Minister M. Karunanidhi moved the State Autonomy Resolution in the Tamil Nadu Assembly on April 16, 1974. On the subject of Public Services, the Resolution demanded: "There should be only two classes of services: (1) Services for the purpose of federal government, and (2) Services for the purpose of State government. The existing all-India services including the IAS and IPS should be absorbed either with the federal services or with the State service. Article 312: This provision relating to the all-India services and creation of new all-India services should be omitted. If Article 312 is deleted from the Constitution, the question of the Union government having overriding power over the States in service matters does not arise.

In their responses to the questionnaire issued by the Sarkaria Commission on Centre-State relations, the Chief Ministers and the leaders of various parties gave valuable suggestions. As was to be expected, most of the Chief Ministers belonging to the Congress party did not come out openly in favour of any drastic change in the constitutional provisions and procedures.

About the all-India services, Tamil Nadu Chief Minister M.G. Ramachandran put it forcefully: "It is not necessary to have all-India services including IAS and IPS. There should be two services, namely, (1) State Civil Services for the purpose of the State government and (2) Central Services for the purpose of the federal government. In the Central government, due representation should be given to the States in the offices of the Central government located in the States. (Sarkaria Commission Report, Volume II, Page 542)

Regarding the power of the Centre under Articles 365 and 356, the Chief Minister stated: "Article 356 has been a much misused and abused Article by the Central government. This government suggest that Article 356 may be omitted. Article 365 itself has to be omitted. (Sarkaria Commission Report, Volume II, Page 547)

In spite of the fact that he had a good relationship with the Congress party in the matter of electoral alliances and that his party supported the Congress government at the Centre, MGR, as leader of the All India Anna Dravida Munnetra Kazhagam (AIADMK), did not fail to assert his stand in favour of State rights and autonomy in the federal set-up.

THE difficulties encountered by a State government in taking disciplinary action against an erring IAS officer were well brought out by Andhra Pradesh Chief Minister N.T. Rama Rao, who said: "It must be appreciated that once an all-India service officer is allotted to a State cadre, he has to function under the authority of the State government which utilises his services. Especially in disciplinary matters the State government must have sufficient control. Under the present grievances procedure an all-India service officer who is suspended by the State government has a right of appeal to the President. The appeal is decided by the President on the aid and advice of the Union Home Ministry. In other words, it is the Union government which sits in judgment over the State government in such matters. We recommend that the President should be advised by an independent and autonomous body like the UPSC in such disciplinary matters. (Sarkaria Commission Report, Volume II, Page 51)

Further, he stated: "Recently the Andhra Pradesh State government has been faced with serious embarrassment by Central interference in disciplinary matters pertaining to members of all-India services. The State government had taken action to suspend some of the all-India service (officers) on grounds of corruption and lack of integrity, but the Union government has ordered reinstatement pending enquiry. The officers against whom the State government had initiated preliminary action of suspension but got reinstated by the Centre cannot be effective and cannot be entrusted with any reasonable position until their enquiry is over. The State government is of the view that if the President passes an order on the advice of the Union Ministry, it ceases to have the stamp of impartiality and objectivity. (Sarkaria Commission Report, Volume II, Pages 64 and 65)

Karnataka Chief Minister Ramakrishna Hegde observed: "However, the implications of the vesting of the ultimate authority in the Central government is that officers belonging to the all-India services and serving in the States will owe their loyalty to the Centre, which is the final arbiter of their service conditions and career. Not only is this theoretically violative of the basic federal structure but in practice has led to difficult situations particularly in States ruled by parties in opposition to the ruling party at the Centre. In effect, this means giving a political function to the services which are supposed to remain aloof from policies and function in a non-partisan manner and is really an extension of the role of the imperial civil service of pre-independence days." (Sarkaria Commission Report, Volume II, Page 251)

Regarding the overriding powers claimed under the proviso inserted by an amendment to Section 6 of the IAS Cadre Rules, Hegde stated: "All these changes in the law and practice as it has evolved over the years have fundamentally altered the basic concept and structure of the all-India services. They would now appear to have become cadres of administrators who occupy the top-level posts in the States but owe their basic loyalty to the Centre. Clearly this can have serious implications for the State governments, particularly those ruled by opposition parties. (Sarkaria Commission Report, Volume II, Pages 252; emphasis added)

West Bengal Chief Minister Jyoti Basu said: "The experience with the all-India services is of a mixed nature. There are certain advantages of having in the States serving officers who have a broad national outlook. At the same time, the fact that the officers belonging to all-India services generally tend to think of themselves as being under the discipline of the Union government had led to complications. We would suggest that the Constitution be so amended that in case a State does not wish to make use of the all-India service, it must be allowed the prerogative to opt out. Moreover, it should be made clear that the personnel belonging to the all-India services, when they serve in the States would be under the supervision and disciplinary control of the State governments. If any appeal is to be lodged against any disciplinary action by a State government against an officer, it should be dealt with by the administrative tribunals set up for the purpose. The tribunals must be independent both of the State and the Union governments. (Sarkaria Commission Report, Volume II, Page 602)

The Lok Dal stated: "All-India services like IAS and IPS are posted in the States but they remain under the supervision and disciplinary control of the Central government. It is forcefully contended that when different political parties come to power in States and the Centre, the Central government attempts to use the IAS and IPS officers and advice them to be non-cooperative and sometimes to subvert the State governments and bring these governments to disrepute. While there is considerable truth regarding the attempts made by the ruling party at the Centre to use these officers and also that some of them succumb to the pressures and temptations, all officers cannot be treated to belong to the same category: some of them are persons of conviction, high integrity and character. (Sarkaria Commission Report, Volume II, Page 705)

On the other hand, the Jan Sangh and, in the early 1970s, the Bharatiya Janata Party, had favoured a unitary state of India. They were even against the use of the nomenclature 'State' to refer to the unit of the federation in the Indian Constitution and often demanded that the units be called provinces. Their argument was that the word 'State' implied some degree of sovereignty and that such a nomenclature might lead to disintegration. The BJP's 1998 Election Manifesto said: "The BJP is committed to the concept of one nation, one people and one culture: our nationalist vision is not merely bound by geographical or political identity of India, but defined by our ancient cultural heritage. (Page 15)

We cannot expect the BJP to appreciate the demands of the basic tenets of federalism and State autonomy. But how can it be that the DMK and other leading partners in the NDA who have in the past been strong advocates of and agitators for State autonomy have now taken a stand against the basic federal rights of the States?

REGARDING the present issue of the Centre's order for the transfer of some Tamil Nadu cadre IPS officers, we have to look at the plethora of rules, procedures, circulars and conventions governing the deputation of IAS cadre officers. It is true that the proviso to Rule 6 of the Indian Police Service (Cadre) Rules provides that in case of disagreement, the matter shall be decided by the Centre. But, under the Rules, the deputation of an officer needs the concurrence of the State government concerned, and concurrence presupposes consultation. Without holding any consultation in order to seek concurrence, it may not be proper on the part of the Central government to issue a unilateral order straightway for the immediate transfer of some officers to its control. It is not known how far the procedures laid down and the conventions have been observed in this instance. There is a petition before the Central Administrative Tribunal and there is no need at this stage to go into the merits of the case.

When the draft Articles of the Constitution relating to the all-India services were taken up for discussion in the Constituent Assembly, some members were highly critical of the special consideration and protection given to the service personnel who were noted, as a class, for their harsh treatment of the freedom fighters. Needless to say, the constitutional measure sought to give guarantee of service conditions to the European officers remaining in the service. M.A. Ananthasaynam Ayyangar, senior Congress member and Deputy Speaker of the Legislative Assembly, questioned the pampering of the "heaven-born" service.

Home Minister Vallabbhai Patel chastised the members by saying: "You are talking of Gandhian ideology and Gandhian philosophy and Gandhian way of administration. Very good! But you come out of the jail and then say: These men put me in jail. Let me take revenge! That is not Gandhian way. It is going far from it."

Defending the special consideration given to the services, Vallabbhai Patel said: "I see a tendency today in several provinces where the services are set upon to tell: No, you are service men, you must carry out our orders. The Union will go, you will not have a united India, if you have not got a good all-India service which has the independence to speak out its mind, which has a sense of security that you will stand by your word and that after all there is the Parliament which we can be proud of. If you do not accept this course, then do not follow the present Constitution. Substitute something else. Put in a Congress Constitution, or some other Constitution or put in RSS Constitution, whatever you like, but not this Constitution. (Constituent Assembly Debates, October 10, 1949)

Policy decisions are made by the Minister or by the Cabinet and the administrative and police officials are only instruments to implement those decisions. Decisions of the government may appear to be wrong, for instance in arresting an aged person at an odd hour, or in taking action against a Minister for obstructing an official on duty. Then, the best course is not to find fault with the instrument, but to change the policy decisions and give full immunity to a privileged group of persons to be notified from time to time by the Home Ministry. Better than that, they should demolish the present Constitution of India, which is only 50 years old, and build a new constitution. It may be, as Sardar Patel suggested, a pure RSS Constitution! It will pave the way for a unitary government of one nation, one people, one culture, one religion, one party. There will not be much difficulty in establishing such a unitary state, as by that time India would have been easily broken into many parts and whatever remains will be best suited only for a unitary constitution and governance of their choice.

Era Sezhiyan is a Senior Fellow of the Institute of Social Sciences, New Delhi, and a former Member of Parliament.

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