Article 1 of the Constitution makes India a Union of States and
the Seventh Schedule framed under Article 246, by containing List 1, the Union List, List 2, the State List and List 3, the Concurrent List prescribes the legislative
bounds of Parliament and the State Legislatures in what is basically a quasi
federal structure. Part XI, which refers to the relations between the Union and
the States, whether legislative or administrative, defines the extent to which
the legislative and administrative jurisdictions of the Union and the States
extend and to what extent the Union writ prevails over the States. The Union,
while giving constitutional autonomy to the States within their respective
executive and legislative competence, is centripetal in that under Article 248 residuary powers of legislation vest in Parliament.
The quasi federal structure
of India is somewhat different from that of the constitutional structure of
other Federations, for example, the United States of America. In the United
States, separation of powers between the Federal Government and State Governments
is complete in that in matters legislative, executive or judicial, the Federal
Government functions through federal officers and federal judges, as also
Congress in matters within the federal competence and the State Governments
function through their own set up in matters within State competence. The
Federal Government has its own civil servants who administer the areas which
come within the legislative competence of Congress and the States have their
Civil Services which operate in areas within the competence of the State
Legislature. However, the Indian Constitution has a unique structure embodied
in Article 312 which permits Parliament to
make laws for the creation of what are known as All India Services. The same
Article states that the Indian Administrative Service and the Indian Police
Service which predate the Constitution would be deemed to be created under
Article 312.
The same
Article also permits the creation of an All India Judicial Service, though none
has been constituted so far. The All India Services are covered by the All
India Services Act, 1951 and rules have been framed under the Act, including the Cadre Rules, the
Conduct Rules and the Discipline and Appeal Rules. Under the Cadre Rules, posts
in the Central Government and the State Governments in the two initially
constituted All India Services, the Indian Administrative Service (IAS) and the
Indian Police Service (IPS) and the subsequently created Indian Forest Service
(IFS) are prescribed and against these posts only an IAS, IPS or IFS officer
can be appointed. There is provision for lateral entry by promotion from State
Services or by induction through limited special recruitment, but the fact
remains that the senior posts in the General Administration, which include
Revenue and Development Administration, the Police and the Forests, including
wildlife, can only be held by an officer of the IAS, IPS or IFS respectively.
The uniqueness of this constitutional provision is that whereas India is a
Union of States, it is a union or federation in which the senior Civil Service
posts, including the Police and the Forest Department, are held by officers who
are under the direct rule making control of the Union Government. The officers
are assigned to a State Cadre and normally serve under the State Government,
but they are liable to transfer either for service under the Union Government
or, under certain circumstances, on deputation to other State Governments,
public sector undertakings and as the rules stand today, to international
bodies or even to private undertakings.
An All India Service officer
is appointed by the President and can be removed from Service or awarded a
major penalty only by the President. An All India Service officer is recruited
through the Union Public Service Commission, his promotion through a
departmental promotion committee even within the State is done through such a
committee, which has representatives of the Union Public Service Commission and
of the Government of India. The State Government’s authority over the All India
Service officers is limited by the provisions of the rules framed under the All
India Services Act.
One need not discuss in
detail why the All India Services were thought necessary and were created in a
quasi federal structure, but some knowledge of the background does help.
British India was governed as a unitary state in which for administrative
purposes, the country was divided into Provinces, each headed by a Governor.
Elements of federalism were there even under the 1919 Government of India Act and were strengthened under
the 1935 Government of India Act and
the Provinces did enjoy a fairly high degree of autonomy because a country as
large as India cannot be administratively managed from one power centre alone.
In fact, in those days of poor communication links, the districts were fairly
autonomous and the D.C. and S.P. were required to take decisions on the spot,
which government invariably supported. Therefore, the provincial governments
had considerable freedom of action, including the setting up of provincial
services, but the country was held together by what were known as the Imperial
Services of which the Indian Civil Service, or ICS was at the apex. The other
major Imperial Service was the Indian Police or IP, but there was an Indian
Forest Service, Indian Service of Engineers and an Indian Medical Service of
all India nature. The Imperial Services were appointed by the Crown and not by
the Viceroy and Governor General. When India became independent and the
provinces became States which had constitutional legitimacy, the Indian Civil
Service was carried forward as the Indian Administrative Service. In some ways,
the legal provisions of the Government of India Act 1935 were carried forwarded into the Constitution, with
cast iron constitutional autonomy being enshrined in lieu of the surrogate
autonomy of the provinces granted by the Government of India Act 1935.
The reason why we provide
for an All India Service in a quasi federal constitution, apart from the need
to have continuity in the administrative set up in India after we became
independent, was Sardar Vallabhbhai Patel’s clear understanding that India had
major fissiparous tendencies which needed to be controlled and countered by
building into the Constitution centripetal features which would hold the
country together. A unified judicial hierarchy, the All India Services, a
single independent audit organisation under the Comptroller and Auditor
General, with constitutional power of the Central Government to give directions
to the States under certain circumstances and the power of the President to
take over the administration of the States under Article 356, are all parts of the centripetal features of our
Constitution. Sardar Patel was firmly of the opinion that if the executive
government of the States and the Union was carried out through officers of All
India Services, who were protected and immunised from arbitrary action by the
political class, then not only would we have a nonpartisan administration where
officers work without fear or favour but a united India would also be ensured
through these Civil Services whose ultimate rule making control is vested in
the Central Government. Hopefully this would eliminate political whimsicality
from the administration.
Upto 1967, the system worked extremely well and this was
possible because, by and large, the Governments, both at the Centre and in the
States, were formed by the same party. In 1967, suddenly the politics of defection through purchase
of power was introduced and now power was up for grabs. Thus began an era of
political uncertainty in which the politicians, in order to remain in power,
had to use bribery as a major weapon. Money for bribes can only be made by
misusing the instrumentality of State power and obviously an impartial and
fearless Civil Service would be an obstruction in obtaining such money. The
Civil Service had to be tamed and the politicians proceeded to do this with vim
and vigour, using the instrument of posting and transfer as a major weapon. In 1975, when Indira Gandhi declared a state of Emergency and
concentrated all power in herself, a new slogan of a committed Civil Service
was added to our administrative lexicon. A committed Civil Service meant that
civil servants would no longer necessarily be servants of the law and would be
prepared to carry out the will of the political masters, even if it meant that
the administration became partisan. At this stage, intimidation of civil
servants was added to the armoury of the politicians and not only were honest,
impartial civil servants sidelined, many of them were subjected to humiliation
through suspension and worse. So long as the Central Government continued to be
under a single party, some element of protection was available to the civil
servants, especially the All India Services.
However, when the Central
Government became weaker and we entered into an era of unprincipled coalitions,
narrow political interests very often overtook the legal provisions relating to
the All India Services and in many States the local satraps arbitrarily decided
the fate of civil servants because the ruling coalition in the centre needed
their support in order to remain in power and hesitated to protect the civil
servants. In some States, the politicians went berserk and Uttar Pradesh and
Bihar are two glaring examples of how the All India Services were hounded,
bullied and bludgeoned into virtual servility by totally arbitrary actions of
Chief Ministers such as Mulayam Singh Yadav, Lalu Prasad Yadav and Mayawati. In
West Bengal and in Kerala, the Left Front Governments did not act in a crude
manner but they did take political decisions whereby in areas of interest to
the party in power, the civil servants were rendered helpless. Industrial
unrest is one area where the police and the magistracy were reduced to
impotence where the interests of the Left Front were concerned. Here it is what
the party dictated which mattered and not the law. In Tamil Nadu, whereas both
the DMK and the AIADMK Governments left the cutting edge level of the district
administration more or less alone because the Collector was used for efficient
delivery of such services as were politically ordained, at senior levels the
All India Services were made subservient.
This was a total negation of
Sardar Patel’s ideal of an impartial Civil Service, immunised from undue
political influence and, therefore, in a position to give advice without fear
and favour and to administer without bias. Over the years, the position has
worsened. The standard joke in Uttar Pradesh is that the Annual Confidential
Report of an IAS or IPS officer serving in the districts is seldom written
because hardly any officer serves for even three months in a district before
being transferred and the ACR must span at least a three months tenure. There is
total whimsicality in such transfers. The Queen of Hearts in the book ‘Alice’s
Adventures in Wonderland’ was in the habit of going around shouting, “Off with
his head”. That is how Mayawati behaved, that is how Mulayam Singh Yadav
operated. It is unfortunate that senior officers at the level of Chief
Secretary and D.G. Police have been silent spectators to the virtual
destruction of the Civil Service hierarchy and have not had the courage to open
their mouths in protest.
I have a theory about this
which is based on my own experience. After I was removed from the Delhi
Development Authority towards the end of 1979, I spent a whole year without a posting in Delhi and
somehow the impression was created that I was dissatisfied or disgruntled. The
fact is that I was being paid my full salary without having to do a stroke of
work and was personally very comfortable, but it is true that being on the
shelf is never a good feeling. There were several of us who were similarly
placed, including Hari Pillai and Ved Marwah of the IPS and JC Jaitley of the
IAS. Krishnaswamy Rao Sahib, who was then Cabinet Secretary, sent for me and
wanted to know why some IAS officers were disgruntled. I asked him whether he
wanted an honest answer and when he said that that was what he wanted, I told
him that the real reason why there was some dissatisfaction is because a whole
succession of Cabinet Secretaries had not put their heads on the chopping
block. He was a little taken aback and wanted to know why I said this. I told
him that there were a number of us without a posting for no fault of our own
except that some politicians were annoyed with us and that even for postings at
junior level, officers were being informally advised to find a political
godfather. I said that successive Cabinet Secretaries were probably looking for
their governorship on retirement and, therefore, were hesitating to stand up
for these Services. In my view, the Cabinet Secretary should have told the
Prime Minister that personnel management was his job and not that of the
politicians, whose job was to frame policy. Anyway, the meeting ended
inconclusively, though to give the Cabinet Secretary his due, he did not hold
my acerbic remarks against me.
Recently, a young IAS
officer with two years service, Durga Shakti Nagpal, has been placed under
suspension by the Uttar Pradesh Government because she took on the powerful
political and commercial interests behind illegal sand mining. There are
innumerable decisions of the Supreme Court and the High Courts calling upon government
to control illegal mining and it is the duty of civil servants to implement
these orders. If, however, the politicians are to harass civil servants doing
their duty, how will the rule of law prevail? Javed Usmani, the Chief Secretary
of Uttar Pradesh, should have stood up to the Chief Minister and opposed the
suspension of this young officer. Instead, he has become a party to framing a
false and frivolous charge-sheet against the officer to try and justify the
suspension. Durga Nagpal’s case is one of many in which civil servants of the
All India Services are being harassed. The IPS is a major target because
politicians want to use the police for furthering their own ends. I remember a
case in which Mayawati, because she was annoyed with the SSP of Lucknow,
suspended him and transferred the DG Police, Zonal IG and the Range DIG and
this happened in the presence of the Chief Secretary. Did that worthy protest
at these totally irrational orders? He preferred to be a silent spectator. This
weakened his own position also. What a contrast with RCVP Noronha, the then
Chief Secretary of Madhya Pradesh, who not only resisted the wholly unjustified
suspension of R.S. Khanna, the then Sales Tax Commissioner, by P.C. Sethi,
Chief Minister, but refused to issue orders and when Sethi asked whether or not
orders would be issued, replied, “They probably will be issued, but by my
successor”. It is P.C. Sethi who stepped back.
How do we remedy the
situation? The Supreme Court, in a writ petition filed by Prakash Singh, IPS
(retired), has been pressing the Central Government and the State Governments
to immunise the police from undue political influence. The Supreme Court wants
the Police Act to be amended to give the police autonomy, to provide tenure for
officers from the rank of Station Officer up to DG Police and to protect
officers from arbitrary action by government. Why is the Supreme Court suo motu
not extending this to all the Civil Services and in particular the two other
All India Services? It is about time that we put in place a set of laws and
rules which, whilst accepting that it is the elected representatives through
the Council of Ministers which will have the final say in all matters relating
to policy of governance, the Civil Services are also be given due protection
against arbitrary action by the politicians so that they can perform their task
of implementing lawful orders without fear or favour. One set of rules which
need immediate amendment is the All India Services (Discipline and Appeal)
Rules 1969.
Rule 3 relates to suspension. Under this rule, a State
Government may suspend an All India Service officer serving in that State
Cadre. The opening words of Rule 3 are important and they read, “If, having regard to the
circumstances in any case, and where Articles of Charges have been drawn up,
the nature of the charges, the government of a State or the Central Government,
as the case may be, is satisfied that it is necessary or desirable to place
under suspension a member of the Service, against whom disciplinary proceedings
are contemplated or are pending, that government may, if the member of the
Service is serving under that government pass an order placing him under
suspension…” The same rule, however, says that if there is a difference of
opinion between the Central Government and the State Government about the
suspension order, then the opinion of the Central Government shall prevail. In
the Durga Nagpal case, the order of suspension and the grounds of suspension
are so flimsy and so obviously contrived that the Central Government should
have treated this as a case of disagreement with the State Government and
should itself have quashed the suspension order. It is not necessary to wait
for ninety days, within which period a charge sheet has to be served.
Considering the fact that
there are many State Governments which are misusing the power of suspension, we
need to amend the rules on the following lines:-
The State Government should
have no power to suspend an All India Service officer except on the following
grounds:-
(a) The
officer’s conduct is under investigation in a criminal case, in connection with
which the officer has been arrested and remanded to custody in excess of
forty-eight hours.
(b) The
officer’s actions are so prejudicial to public safety or national integrity
that he must be neutralised without delay. However, in every such case, the
State Government must submit a report within forty-eight hours of the order to
the Central Government, which may then decide whether or not to continue the
suspension of the officer.
(c) In
every other case, if the government feels that the suspension of an officer is
in the public interest it must make a report to the Central Government, which
may decide whether or not the officer is to be placed under suspension.
Other than this, the State
Government should have no power whatsoever to place an All India Service
officer under suspension. This is all the more so because the power to impose a
penalty on an All India Service officer vests in the Central Government and can
be imposed only in consultation with the Union Public Service Commission. This
would go a long way in ensuring that the All India Service officers function
without fear and favour.
There is another set of
reforms that we need if we have to make the All India Service truly national in
character. At present there are many officers who, after allocation to a State
Cadre, never serve outside that State. This must immediately end. In the
approximately thirty-five years span of service, an All India Service officer
should serve outside his cadre for at least ten years. Every All India Service
officer should have one stint of five years of service in a cadre other than
the one to which he is allotted, that is, he must serve under a State
Government other than the one to which he is allotted. He must also put in an
additional five years stint in any post under the Central Government. Thus, in
his thirty-five years of service, at least ten years will be spent outside his
parent cadre. The idea is that an All India Service officer must serve anywhere
in India and not be confined to just one State. This would widen his horizon
and give him an all India perspective, which is very necessary if our All India
Services are to have a national character.
There is another suggestion
I have to make, which is that the All India Services must be made to realise
that they are servants of the law and not the personal servants of a
politician. Therefore, if a civil servant has acted in a manner which promotes
the interests of a politician or a political group and in doing so has been in
violation of the law, then, if the State Government does not take action, the
Central Government must charge-sheet the officer and take disciplinary action
against him. Every All India Service officer must be made to realise that if in
order to curry favour with State politicians, he acts in a manner prejudicial
to law, he will have to face the consequences because the Central Government
will intervene. This is the only way to curb the whimsicality of wayward Chief
Ministers who are under the false notion that they are above the law and can,
therefore, expect senior civil servants to even ignore the law to serve the
interests of the Chief Minister. If condign punishment is awarded in a few such
cases, it would have a salutary effect in reminding the All India Services
where their duty lies.
Dr M N Buch, Dean, Centre for Governance and Political Studies, VIF
