File photo of Mamata Banerjee(left) and PM Narendra Modi (right) | ANI/Twitter
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Prime Minister Narendra Modi’s visit to West Bengal to assess the cyclone damage has given rise to yet another confrontation between the Centre and the state. Chief Minister Mamata Banerjee, along with the state chief secretary skipped the prime minister’s review meeting, triggering a fresh row. The chief secretary has now been summarily ‘recalled’ to the Centre, even though he was on a three-month post-retirement extension. Mamata Banerjee has rightly protested and refused to release her top civil servant. It is not for the first time that the central government has taken such peremptory action. Bengal and Tamil Nadu have seen similar episodes in the past. The Modi government’s action is clearly against the principles underlying the management of the All India Services.


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AIS and its historical background

Sardar Vallabhbhai Patel, then Union home minister, was keen that covenanted services like the Indian Civil Service and the Indian Police, should also be created in independent India. He was of the view that ministers should receive free, frank and objective advice from the civil servants. The proposal was opposed by the prime ministers of the Provinces with apprehensions about curtailment of their freedom. However, Patel vigorously pursued the subject and eventually persuaded them. The only sticking point left was of the final control of the services but Patel emphasised in his concluding remarks at the meeting of the Prime Ministers of Provinces that this would get ironed out over time. But it continues to be a matter of concern to this day.

At the insistence of Patel, the All India Services (AIS) were given protection under Article 312 of the Constitution that resulted in the creation of these services for the Union and the states with the Centre retaining powers to regulate the recruitment and the conditions of service of the officers. The Indian Administrative Service (IAS) and the Indian Police Service (IPS) were deemed to be the services created by Parliament. India is the only federal or quasi-federal nation with such unique structure.

The AIS has continued to be one of the irritants in the Centre-state relations. During the Indira Gandhi’s tenure, the West Bengal government, the Rajamannar Committee in Tamil Nadu, and a conclave of the Opposition states had asked for abolition of the AIS.

Till certain provisions of the Indian Constitution were extended, the erstwhile Jammu and Kashmir government did not accept any AIS officers. Later, the autonomy committees in the state had also recommended abolition of the AIS.

The political parties, which had made such demands while in Opposition, became strong advocates of strengthening the AIS when in power at the Centre. This was borne out by Union home minister Indrajit Gupta of the CPI (M) who energetically pressed the states for implementing the recommendations of the National Police Commission.

Justice Sarkaria Commission on Centre-state relations had stated: “We are convinced that these services are as much necessary today as they were when the Constitution was framed and continue to be one of the premier institutions for maintaining the unity of the country”.


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Federalism and consultative forums

Fears of erosion of federalism have risen whenever there is hegemony of one political party, whether the Congress or the BJP, headed by a strong, dominating prime minister like Indira Gandhi or Narendra Modi. To deal with such fears, it is imperative to have institutional consultative forums to thrash out the differences and arrive at a consensus on contentious issues. It was during the Indira Gandhi regime that, for the first time, several state governments were formed by parties opposed to the Congress. But, temperamentally, Indira Gandhi was disinclined to treat the states as equal partners.

Though the Constitution provided for establishment of an Inter-State Council (ISC) under Article 263, no action was taken till the V.P. Singh government established it in 1991. However, it was not used by successive governments. The Modi government did call a few meetings of the Council. The report of the Punchhi Commission on Centre-state relations, which was submitted to the government way back in 2010 (when the UPA was in power) was placed before the ISC only after the Modi government came to power in 2014 and is still pending consideration of the Council. As I have argued in my forthcoming book, India-A Federal Union of States: Fault Lines, Challenges and Opportunities, the ISC is not workable and an alternate institutional mechanism will have to be explored for inter-state and Centre-state consultations.

But such consultations can be productive only if political parties are inclined to discuss the contentious issues with an open mind. With complete polarisation of politics, this avenue is now closed altogether. This leaves us with the only alternative — adjudication by the Supreme Court. The Supreme Court has declared that federal structure is a part of the basic structure of the Constitution. It is therefore the court’s responsibility to ensure that everything possible is done to safeguard it.


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Governance issues

It must be underlined that the question facing the country is not just of the management of AIS by mutual consultations between the Centre and the states.  It is also a reassertion of the original objectives underlying the creation of AIS.

Over the years, the constitutional protection to AIS has been completely diluted, as seen from the actions of the state governments and the Centre. Once known as the ‘steel frame’, the AIS has been forced to adopt the motto of ‘Bend it like Beckham’— bend the rules to serve the interests of political masters. Findings of scores of judicial commissions of inquiry over the years bear this out. This is totally opposed to the original objectives Sardar Patel had in mind while pressing so hard and putting his personal prestige on line for the creation of AIS. The Supreme Court rendered yeomen service by reiterating the original objectives of Article 356 of the Constitution, which put a full stop to its misuse. The same thing now needs to be done with regard to the AIS.   

My colleague E.A.S Sarma, former secretary, economic affairs, and I had filed a public interest litigation in the Supreme Court (Writ Petition © No. 69 of 2004) for this purpose. Unfortunately, the court had declined to admit it. Now the time has come for the court to take suo-motu notice of the issues and lay down suitable guidelines to sub-serve the objectives underlying Article 312.

Madhav Godbole is former Union Home Secretary, and Secretary, Justice. Views are personal.

(Edited by Anurag Chaubey)

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