[This is a guest post by Yash Sinha.]
The central government has recently proposed amendments to the Indian Administrative Service (Cadre) Rules, 1954 (‘the 1954 Rules’). Succinctly, they enable the Central Government to compulsorily “borrow” an officer from the Indian Administrative Service (‘IAS’) serving a state government. This article argues that the probable impact will be damaging to two ideas underlying Indian federalism. Firstly, there is a breach of ‘centripetal federalism’, which is specific to the provisions on civil services. Secondly, there is an assault on the principles of quasi-federalism as found in the remaining Constitutional text.
As necessary preface to the argument advanced, Part I describes the present framework to contextualise the amendment’s implications. It maps the present degree of administrative control possessed by both the Centre and the states over such officers. It demonstrates that the framework provides for a titular inclination towards central discretion. Simultaneously, the density of the states’ weightage in power is shown to be residing in the concerned rule. Part II explains the Constitutional intent behind the distribution of such controls. It argues that the intent was to favour the states’ interests by having the centre supervise manpower. It links this to the Constitutional desire of having a centripetal force for enhanced cohesion and better functioning of the state executive. This centripetal force is shown to come from a titular, as opposed to an actual, central preponderance. Eventually, Part III discusses relevance of quasi-federalism as revealed by other parts of the Constitution. It argues that centripetal federalism fits perfectly in Ambedkar’s model of quasi-federalism, and is meant to have a cumulative effect of prioritising state interests in its IAS officers. Consequently, the amendments are shown to be (impermissibly) re-arranging Constitutional allocation of power.
The framework and the amendment
The All India Services Act, 1951 (‘AIS’) requires direct recruitment of freshly minted IAS officers to state governments. This recruitment is made in the President’s name, with the Department of Personnel and Training as its controlling authority.
The centre has conclusive discretion in more substantial aspects of the process as well. These illustratively include allocating recruits to each state cadre, determining those numbers, reserving a few for itself, imparting training to them, and exercising the power to selectively extend career-durations.
Furthermore, it has unequivocal priority in matters pertaining to suspension. The centre’s will is binding in spite of a state’s differing opinion on the same. The same arrangement governs disagreements about disciplinary proceedings, except that the state needs prior permission from the centre to initiate those. The centre also has the sole discretion in compulsorily and prematurely retiring IAS officers in state or central cadres.
The states, however, have a wide array of incentives/disincentives with which they govern the behaviour of their IAS officers. The officers’ transfers, reallocation of territorial units for administration and elevation to coveted posts, are the primary tools of control. Pertinently, the states have a sufficient deterrent in initiating an interim suspension till the centre’s final decision. To compete with the centre’s power of career-extensions, the states have devised their own workaround: the civil servant may choose to wait till the organic expiry of her tenure comes about, and subsequently function as an aide/advisory to the state government.
Regardless, it is seen that the centre has greater say till the stage of allocation to the state government, and then directly in ending the careers of IAS officers. However, the centre faced one significant handicap. The number of officers drawn by way of the present version of rule 6 was low in quanta. Therefore, it introduced the Central Staffing Scheme (‘CSS’). This ‘scheme’ was brought in through a government resolution, bypassing the All India Services Act (‘AIS’). Sec. 3 of this enactment requires that every amendatory rule be first scrutinised by the Parliament. Since the scheme was not a ‘rule’, it was considered to be an exercise of residuary executive power.
Under this scheme, the centre may choose to declare certain officers as fit to work directly under its administration. This process is referred to as ‘empanelment’, and earmarks possible candidates for future/immediate deputation. Regardless of the intent behind CSS, it serves favourably for the states. The state officers eluding empanelment are given the more strategic posts, minimising the possibility of disruption in functioning.
Simultaneously, the centre continues to face a handicap. Migration of empanelled officers is still contingent on the satisfaction of rule 6(1) of the 1954 Rules. By virtue of this, the centre cannot forcibly borrow a recruited state officer, regardless of empanelment. In 1969, a proviso was introduced to tweak this arrangement. It states that any differences regarding central deputation will see the centre’s view as binding. However, this does not denote the centre’s will as ‘overriding by default’. Rather, it was stated to be suggesting a dispute resolution mechanism, with the centre as an independent arbiter.
This proposed amendment is to negate the current rule 6(1) and forcibly recruit empanelled/non-empanelled IAS officers in states. This is ensured through two key changes. Firstly¸ the pre-requisite of the states’ consent is sought to be done away with. Secondly, the centre will have complete discretion to determine the number of such officers it may so wrest away.
Thus, this amendment effectively entitles the centre to expropriate members of the state administration. Combined with the significant power to additionally determine the numbers, the dispossessing impact renders it Constitutionally offensive.
Striking at the edifice of civil services: centripetal federalism
Given that IAS recruitment happens largely for the states, the centre’s role of a manager seems incongruous. This feature, however, is laden with Constitutional purpose.
Alongside other articles pertaining to the civil services, Art. 311 was formulated by Sardar Patel. Essentially, it compels pause and deliberation in the removal of Indian bureaucrats. Cl. 1 ensures that IAS officers are removed only by the centre. Art. 310(1) requires the centre to have strong reasons before affecting such removals. Simultaneously, Art. 311(2) mandates that the states follow a proper inquiry procedure before initiating a request for removal. Succinctly put, the design ensures that the states have the power to initiate penalties, without attaching it with any finality. It is these bounds that the statutory framework discussed in Part I are adhering to.
The underlying reasoning is present in the Constituent Assembly Debates. Few members were opposed to the state’s say in removal of officers, given certain provinces’ past loyalty to the British. Simultaneously and regardless, another set of members nurtured the very same suspicion about the bureaucracy itself. Both the groups demanded that there be no constitutional mention for the officers’ ‘removal’. By specifying a singular and tortuous procedure in the Constitution, Patel was accused of giving them a certain amount of protection. Patel refused to budge, citing the IAS’ potential to protect the Constitution. The bureaucracy, he stated, remains rooted in governance even if the political domain goes through severe flux. Officers unfailingly abiding by executive orders suggested to him institutional strength, and not moral vacuity. The bureaucracy-conduced stability during the crises thrown by the Partition and transition to independent governance were cited as footnotes to this assertion. More significantly, accession of some provinces was secured entirely on the assurance of preserving their internal freedom. Patel argued that this essentially denoted preserving their bureaucratic structure.
The grist of his argument, however, is packed in one significant portion of his rebuttal:
“This Constitution is meant to be worked by a ring of Service which will keep the country intact […] we shall have this model wherein the ring of Service will be such that will keep the country under control.”
Evidently, Patel envisaged the centre’s say on states’ officers as a source of national cohesion. This design seems further consolidated in light of another vital aspect of Indian Constitutional history. When the Government of India Act, 1935 introduced federalism to British India, it created an administrative office to singularly oversee and manage bureaucratic recruitments to the provinces. Termed as the ‘Establishment Officer’ and now within the DoPT, it is additionally tasked with handling the CSS.
Hence, Patel envisaged ‘centripetal federalism’: a counterintuitive concept wherein the centre has an overriding say, but in order to achieve effective decentralisation. The centre’s role in managing IAS officers of the states was to preserve and further federal cohesion. The limited preponderance it enjoys is only cosmetic and essentially bestows greater power on the states. But contrary to this, the amendments are aimed at creating an actual tilt towards the centre and at the states’ expense.
Quasi-federalism’s overlap with centripetal federalism
Ambedkar was distrustful of a liberal approach towards decentralisation in India. So while Patel argued for enhanced federalism, Ambedkar disagreed, and favoured a pseudo-unitary system of governance. The eventual Constitutional inclination towards the centre across different parameters has come to be identified – by the decisions in State of Karnataka, Shamsher Singh, Kuldip Nayar and Bhim Singh – as quasi-federalism.
It stands on a different footing than centripetal federalism, in the following manner. The latter weaves vertical federal units into one single thread of cohesion, whilst retaining the vital powers of the states. It brings in an effective central discretion to the fore, while still prioritising state-interests in the federal-vertical. On the other hand, the quasi-federal model is best understood as a bundle of different federal arrangements. It encompasses federal collaboration, unit-exclusive functioning, and permissible circumstances for the centre’s domination.
According to Ambedkar, this dominance denoted ‘circumscribing’ the states’ power in legislative and executive concerns. In elaboration, he asserted that the overriding power of the centre was to be kept strong in intensity, yet minimal in occurrence. Accordingly, the centre was conferred with legislative preponderance only in disagreements pertaining to concurrent and residuary subjects. However, as espoused in V. Hariharan and consolidated in GNCTD, it is the states which have executive preponderance in concurrent subjects, except where Constitutional or parliamentary law specify exceptions.
It is at this point where flanks of both the models of federalism confluence. Centripetal provisions on civil services are cocooned by Ambedkar’s exemptions from central dominance for a cumulative impact.
It is to be noted that IAS officers in a state are bound to execute and handle laws under List II. These officers, insofar as they constitute the state executive, are not tasked with implementing central laws due to Ambedkar’s ‘exclusive priority’. Art. 256 and 257 reservedly ask state officers to neither hinder such laws’ implementation, nor the centre’s functioning. This indicates mutual exclusivity between the functioning of state and central executives. Additionally, the Constitutional text also bears out his intention to minimise the hijacking of state executives. At present, only under Art. 352 and 356 can the state executive machinery be taken control over by the centre. That apart, Art. 324(6) has been judicially interpreted as the only other provision that permits a temporary and non-consensual expropriation of a state’s executive machinery.
Thus, the cumulative impact of both the models is to impart states’ executive with a high degree of exclusivity. Central preponderance therein would be a fickle proposition, except when permitted by the Constitution. Presently, its text suggests the contrary.
In its present form, rule 6(1) embodies a Constitutional allocation. It encapsulates the core of decentralisation by granting states a decisive hold over their in-service civil servants. In parallel and by intelligent design, the Constitution protects these officers from politically motivated state-level reprimands.
Both the safeguards exist due to two different ideas of federalism. The centripetal model stresses on unity to advance greater decentralisation. It exists to generate a unifying factor, but prioritises states in doing so. Contrarily, the pseudo-unitary model prioritises the centre, and goes beyond merely supplying an appellation of unity. It is best viewed as a wide spectrum of federal arrangements, with slight inclination to the centre and complete substitution of state powers as the two extreme ends. The crux of both, however, is the asymmetry in the federal-vertical.
As far as civil services within the states is concerned, the two versions reinforce each other to have a curious constitutional impact: both cement plenary powers of the state executive. The cohesive intent ensures that no state is dispossessed of its administrative instruments. Simultaneously, the specificity in areas for central dominance makes it rare for the centre to interfere with the everyday functioning of state executives. Combined, they make states’ consent all the more indispensable.
Without rule 6(1) in its present form, the country shall move closer to a unitary operation under the facade of an operative quasi-federal system.