Proposed changes to IAS Rules unconstitutional: 109 former bureaucrats

At least 109 former civil servants on Thursday said that the changes proposed by the Union government to the Indian Administrative Service (Cadre) Rules are “arbitrary, unreasonable and unconstitutional.”

This comes days after six states, Tamil Nadu, Kerala, Telangana, Jharkhand, Rajasthan and Chhattisgarh have objected to the proposed changes in Rule 6 (deputation of cadre officers) of the IAS (Cadre) Rules, since the Union wrote to them on January 12.

Opposition parties are alleging that these proposed amendments to the IAS (Cadre) Rules would allow the Union government larger control over the deputation of IAS officials.If cleared, the four proposed amendments would allow the Union to put officers on central deputation bypassing objections from state governments.

The joint statement under the banner of Constitutional Conduct Group said that the amendments interfered with the basic structure of the Constitution and will allow “greater scope for abuse of power” by the Union government.

The signatories to the statement include former civil servants Anita Agnihotri, Harsh Mander, Najeeb Jung and AS Dulat.

Read the full text of the statement.

We are a group of former officers of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. As members of the Constitutional Conduct Group, we believe in impartiality, neutrality and commitment to the Indian Constitution and in safeguarding its values.

In the federal structure of the Union of India, the Union and the States exist as distinct and separate entities, though they work in tandem to subserve common constitutional objectives. The All India Services (AIS) (the Indian Administrative Service (IAS), the Indian Police Service IPS) and the Indian Forest Service (IFoS) constitute the administrative framework for this unique relationship between the two levels of government and give it stability and balance. Maintaining this balance is critical to good governance.

The proposed amendments to the cadre rules of all the three AIS seek to give unilateral powers to the Union to pick and choose any AIS officer(s) working in the States to be withdrawn from their services in the State of their allotment and brought to the Centre without the concurrence either of the officer concerned or of the State Government that the officer is serving. While this change in the rules may appear to be a minor, technical one, it, in fact, hits at the very core of the constitutional scheme of Indian federalism.

It is important to remember that the conceptual design of the AIS is anchored on two features which make it unique among public services anywhere in the world.

One, that the creation of the AIS (initially the IAS and the IPS and, subsequently, the IFoS) was covenanted in the main body of the Constitution, making them creatures not of the Executive but of the Constitution itself. This is a feature unique to the AIS and distinguishes them from other Central Services created by the Centre as well as from services created by State Governments. For Sardar Patel, this feature was critical to guaranteeing members of the AIS their independence and their ability to speak their mind. Their Constitutional status and independence would give them the security to function as a protective ring around the Constitution. It was not merely that Constitutional protection was available to members of the Service but that they were expected to be the ones protecting the Constitution from the vicissitudes of politics and centrifugal forces, thereby giving governance stability and endurance.

Two, the Constitution places the AIS squarely in the middle of a federal, dual polity so that there is a sense of shared ownership between the Union and the States. Whereas recruitment is done centrally by the Union Government on the recommendations of the Union Public Service Commission and the AIS are a part of the subjects listed in the Union List, all members of the AIS are divided into State based cadres, with the Union borrowing officers from the State cadres. Each member treats the cadre of his/her allotment as the ‘parent’ cadre to which he/she belongs.

The allotted State is not just a region where an officer spends a substantial part of his/her career, it is a ‘parent’ that nurtures and grooms his/her career. The primary career management role is performed by the State and it is to the State that each officer reverts after a spell of central posting. This is a unique relationship and establishes a strong connection between an officer and the parent State cadre. When the Union borrows an officer for posts in the Union, each officer brings to the assignment in the Union the perspective he/she has gained in the State. This gives the AIS their distinctive federal character and is central to the constitutional scheme of the AIS.

The proposed amendment to the Cadre Rules fundamentally alters this relationship and makes a mockery of the delicate federal balance that the AIS are designed to maintain. The whole idea of the Centre not having a ‘cadre’ of its own but having to ‘borrow’ the services of an officer for specific periods at key senior management levels is destroyed if the State as a ‘lender’ has no authority on what it lends and on what terms and conditions, but the borrower, on the other hand, exercises superior rights over the lender. This is turning the federal arrangement upside down.

An important factor which determined the unique conceptual design of the AIS was the need to ensure that certain ‘strategic’ posts (as Dr. Ambedkar called them) throughout the country, both at the Centre and in the States, would be the exclusive preserve of the members of the AIS. While the States would be free to have Civil Services of their own, there would be a set of strategic ‘cadre’ posts in every State to which only members of the AIS could be appointed. The intent was twofold – one, to have officers recruited centrally through a rigorous and impartial selection process to maintain uniformly high administrative standards throughout the country, and two, to act as a check against fissiparous tendencies without disturbing the autonomy of the States within their own allotted spheres. Whatever else may be said about the AIS, their contribution to this spirit of ‘unity in diversity’ in administration has been singular. The proposed amendments in the Rules will adversely impact this distinctive design feature.

It is abundantly evident that the proposed amendments have not been thought through and are being rushed through without adequate federal consultation in a manner which shows the present establishment’s by now familiar penchant for arbitrary exercise of centralised power. It is not possible to anticipate, at this stage, all the long term consequences of such a major design alteration but the following implications are self-evident:

The shifting of the balance disproportionately in favour of the Union in matters of cadre deployment and cadre management will effectively convert the three AIS into three more Central Services.

  • It is possible that AIS officers may view the interests of the State as secondary and subordinate to the Centre and to the political regime in power there. AIS officers working in the State will be reluctant to take any decision or action against the wishes of the political party in power at the Centre for fear of being summarily transferred to the Centre and harassed there. This will undermine the ability of the State governments to implement their policies and stand up against any arbitrary diktats of the Centre.
  • There is a likelihood that States will consider the State Civil Services as more amenable to them and may treat AIS officers with suspicion and distrust.
  • States may choose to reduce ‘cadre’ posts meant exclusively for the AIS and open them up to the State services, thereby seriously undermining Dr Ambedkar’s intention of maintaining uniformly high administrative standards across the country, free of any regional biases.
  • If the AIS begin to play a lesser role in the States, it will also affect the unifying role which they play in the context of federal diversity – social, economic, and cultural (including administrative culture).
  • It will allow greater scope for abuse of power by the Union Government so that whenever it is unhappy with the State Government it can target AIS officers occupying strategic posts (e.g., Chief Secretary, Home Secretary, Director General of Police, Principal Chief Conservator of Forests, District Magistrate, Superintendent of Police etc.), withdraw them from their posts and place them elsewhere, thereby effectively derailing the functioning of the State administrative apparatus.
  • The introduction of an element of compulsion in cadre management and doing away with a robust and healthy system of federal consultation, consent/concurrence and coordination   will severely impact the morale of the AIS. This will eventually make careers in the AIS unattractive. 

We are, therefore, of the view that the proposed set of amendments to the cadre rules of the three AIS are arbitrary, unreasonable and unconstitutional. They interfere with the basic structure of the Constitution of India as a Union of States and can cause irreparable damage to the one institution which Sardar Patel held as being the most critical to the unity of the country. It is important to remind ourselves of what he said, “The Union will go, you will not have a united India if you have not a good All India Service which has the independence to speak out its mind, which has a sense of security….” (Speech to the Constituent Assembly, October 10, 1949). Will a government which holds the Sardar in higher esteem than any other figure in the history of the freedom movement pay heed to his words and drop the proposal to change the AIS Cadre Rules?

SATYAMEVA JAYATE

Warm regards,

Constitutional Conduct Group