Lessons from an ongoing federal crisis

Lessons from an ongoing federal crisis

Jawhar Sircar

Ananda Bazar Patrika, 22^nd  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.