Why New IAS Rules About Compulsory ‘Borrowing’ Are Constitutionally Offensive

By way of the proposed amendments to the Indian Administrative Service Rules, the Narendra Modi government desecrates Patel’s constitutional legacy. 

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The Union government has recently proposed amendments to the Indian Administrative Service (Cadre) Rules, 1954. Succinctly, they enable the Union government to forcefully borrow an Indian Administrative Service (IAS) officer who is serving a state government. The probable impact will be doubly offensive to two constitutional ideas underlying Indian federalism. Firstly, there is a breach of ‘centripetal federalism’ which is specific to the constitutional provisions on civil services. Secondly, there is an assault on the principles of quasi-federalism as found in the remaining constitutional text. 

The framework and the amendment

The All India Services (AIS) Act, 1951 compels 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 Union government 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 Union government’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 Union government to initiate those. The Union government 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 behavioural responsibility of its 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 sufficient deterrent in initiating an interim suspension till the Union government’s final decision. To compete with the Union government’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 Union government has greater say till the stage of allocation of state government, and then directly in ending the careers of IAS officers. However, the Union government faces 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). 

Under this scheme, the Union government may choose to declare certain officers as fit to work directly under its administration. This process was 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 Union government 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. 

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 Union government will have complete discretion to determine the number of such officers it may so wrest away. 

Thus, this amendment effectively entitles the Union government to expropriate members of the state administration. 

Striking at the edifice of civil services: centripetal federalism

Given that IAS recruitment happens largely for the states, the Union government’s role of a manager seems incongruous. This feature, however, is laden with constitutional purpose.

Alongside other articles pertaining to civil services, Article 311 was formulated by Sardar Patel. Essentially, it compels pause and deliberation in the removal of Indian bureaucrats. Its clause 1 ensures that IAS officers are removed only by the centre. Article 310(1) congruously espouses that the Union government has strong reasons before affecting such removals. Simultaneously, Article 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 them with any finality. It is these bounds that the statutory framework is adhering to.

Patel’s reasoning for such a structure is reflected in the Constituent Assembly debates. Few members were opposed to the state’s say in the removal of officers, given certain provinces’ past loyalty to the British. They 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’s potential to protect the constitution. The bureaucracy, he stated, remains rooted in governance even if the political go through severe flux. Officers unfailingly abiding by executive orders suggested to him institutional strength, and not moral vacuity. 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, for the sake of a united country. 

Evidently, Patel envisaged the Union government’s say on states officers as a source of national cohesion. Hence, Patel envisaged a ‘centripetal federalism’: a counterintuitive concept wherein the Union government has an overriding say but to achieve effective decentralisation. The Union government’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. Contrarily, the amendments are aimed at creating an actual tilt towards the Union governments and at the states’ expense. 

Sardar Vallabhbhai Patel. Photo: Twitter/@RGforpeople

Quasi-federalism’s overlap with centripetal federalism 

Ambedkar was distrustful of a liberal decentralisation in India. So while Patel argued for enhanced federalism, Ambedkar disagreed to favour a pseudo-unitary system of governance. The eventual constitutional inclination towards the Union government across different parameters has come to be identified as ‘quasi-federalism’. 

It stands on a different footing than centripetal federalism as thus. The latter weaves vertical federal units with one single thread of cohesion, whilst retaining the vital powers of the states. It brings in an effete central discretion to the fore, still prioritising state interests in the federal-vertical. Whereas, 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 Union government’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 Union government was to be kept strong in intensity, yet minimal in occurrence. Accordingly, the Union government was conferred with legislative preponderance only in disagreements pertaining to concurrent and residuary subjects. However, it is the states which have executive preponderance in concurrent subjects, unless 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 the states’ domain. These officers, insofar as they constitute the state executive, are not tasked with implementing central laws due to Ambedkar’s ‘exclusive priority’. This indicates mutual exclusivity between the functioning of state and Central executives. Additionally, the constitutional text also bore out his intention to minimise the hijacking of state executives. At present, the state executive machinery is taken control over by the Union government under state and national emergencies. That apart, the election commission is the only constitutional body that may, temporarily and non-consensually, expropriate 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.

Wholly unconstitutional scheme

In its present form, rule 6(1) is embodying 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 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 Union government and goes beyond than merely supplying an appellation of unity. It is best viewed as a wide spectrum of federal arrangements, with a 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. 

Yash Sinha, is a practising Advocate based out of Delhi.