Lessons from an ongoing federal crisis
Jawhar Sircar
Ananda Bazar Patrika, 22nd
March, 2108
English Version
The
recent constitutional conflict in Delhi state is taking new and dangerous turns
even after legal action was promptly taken and two MLAs who assaulted the chief
secretary in the presence of the chief minister were arrested. Assaulting the
administrative head of a state government is unprecedented in its audacity. It
is a criminal offence in terms of Section 351 of the Indian Penal Code that
defines even threatening gestures and pushing around as ‘assault’. But for the
chief secretary to come to the next meeting with CM and his cabinet colleagues
with a dozen policeman, who owe their loyalty to the central home ministry,
shows a total breakdown in relationship. The chief minister’s unequivocal power
to appoint the chief secretary has been settled by the the question long ago by
the Supreme Court judgment in E.P. Royappa (1974) where it stated that as “the
post of Chief Secretary is a highly sensitive post…and smooth functioning of
the administration requires that there should be complete rapport and
understanding between the Chief Secretary and the Chief Minister” Later, in
Salil Sabhlok (2013), the highest court supported the power of “the Chief Minister......to appoint a ‘suitable’ person as a Chief Secretary or the Director General
of Police…because both .... the Chief Minister and the appointee (must) share a
similar vision of the administrative goals and requirements of the State. The
underlying premise also is that Chief Minister has confidence that the
appointee will deliver the goods, as it were, and both are administratively
quite compatible with each other.”
This
provision does not exist for appointing Central government secretaries who are
selected on rigorous but impersonal assessment of their career records. If
senior officers so want, they can opt for central deputation, instead of
spiking projects taken up by their duly-elected state governments. There are,
of course two issues: first is that they have to qualify through strict
standards and the second is that CMs do not want to release officers from the
state IAS or IPS cadre. Narendra Modi set the biggest roadblocks to his
officers joining the central government when he was CM of Gujarat so he cannot
blame other CMs. They may seriously consider releasing officers who oppose or sabotage
legitimate policies, provided they get a berth at the centre. While civil
service associations rose in angry protest against the criminal assault on the
chief secretary, no one protested when the the Lieutenant Governor usurped the
powers of CM and appointed the chief secretary, obviously at the behest of the
central government. The Constitution Bench of the Supreme Court had declared in
Shamsher Singh vs State of Punjab (1974)that the Governor has to
discharge his functionsonly in accordance with the aid and advice of the
Council of Ministers headed by the Chief Minister.
The BJP
has neither forgotten nor ‘forgiven’ Kejriwal for stopping Modi’s tsunami of
2104 and single-handedly wiping both national parties from Delhi state just
eight months later. That is the unpredictable Indian voter. But it is not for
IAS and IPS officers to join the central government’s do-or-die battle even
though Kejriwal is unpleasant to them and stops at no trick himself. This
conflict is surely straining the very nerves of the our federal constitution.
Different nationalities and linguistic cultures came together on the
understanding that diversity and regional variations would be respected. Even
though both contestants in Delhi belong to more or less to the same culture and
language, precedents that are being decided in this ugly war gain some ‘legal
respectability’ and are sure to be used elsewhere where the two parties may
differ widely in cultural systems and in approaches to plurality.
Delhi is
not a normal state and it is run according to Article 239AA of the Constitution
and the Government of National Capital Territory of Delhi Act of 1991. Bothare
meant for good governance of this sensitive state but they are regularly
interpreted in a one-sided manner to favour the central government. This
tramples the spirit of federal co-existence but officers of the IAS and the
IPS, who head all critical posts in the Union Home Ministry or in Delhi
administration, are duty bound to serve their state government. It is true that
their postings are determined by the central government but could not some of
them stand up for what is right? So many DMs and SPs have done so in north and
central Indian states and paid the price. Two young IPS officers in Uttar
Pradesh have shown their boldness and arrested hoodlums belonging to the ruling
party. These two Senior Superintendents of Police of Saharanpur and Agra were
heckled by communal goons who even attacked the residence of one and
traumatised his family. Obviously, these two were transferred by the government
but their children will respect them more. Lately, the DM of Bareilly and the SDO of Amethi have suffered as they showed more guts than
their seniors in Delhi administration, who dread being posted to the Andamans.
On the
other side, Kejriwal is known for his domineering style, but then, what about
Modi or others? And, to be fair, the tradition of central governments stymying
state regimes opposed to them was not begun by the present regime. It started
in 1959 when Nehru dismissed Namboodiripad‘s
elected communist government and later when Indira Gandhi packed off United
Front governments in Bengal in 1967 and 1969. Several officers have served in
West Bengal and the centre with equal success during the last 41 years when
this state created a Guinness record for electing governments that were
invariably opposed to whoever ruled the centre. Most such officers were never
blamed as being agents of either governments. Entering the civil services is
not just passing a tough examination and serving mercurial ministries elected
by the people. It also means that one has to weather such stormy constitutional
relations and still uphold the values of the federal constitution. The IAS has
no right to treat Kejriwal like “just a Revenue Service officer” who resigned,
because he has earned his legitimacy the hard way, through the ballot box. The
fact that he is cunning and disruptive are not sufficient reasons to undermine
his legitimate government. In fact, the IAS and the IPS have tackled bigger
mavericks and volcanic ministers and parties in the last 50 years. All those
who worked in the districts during turbulent times, especially in politically
volatile states, have faced violent mobs, often led by legislators and many officers
have been badly roughed up by hotheads. It is an occupational hazard that
doctors and hospitals face nowadays.
What officers need to realise is that
the expectations of the people have gone up manifold and no one will listen to
why something that is fair and equitable cannot be done because of some
colonial or post-colonial era rules. And also that powers in democratic India
have definitely shifted in the last five decades from the English educated
elite and upper class civil servants to whoever is elected from the bottom of
the pyramid. They have their own style and demand immediate delivery but they
hold the real India together, however unsophisticated be their style.