Is a Constitutional Coup d’etat Possible in India?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In the light of what was attempted by the then Prime Minister Indira Gandhi in June 1975 by declaration of Emergency and references to the same by contemporary politicians, it is pertinent to examine whether the Indian Constitution is strong enough to prevent the imposition of authoritarian and totalitarian rule on India, or whether there are loopholes in the Constitution which an unscrupulous person can perhaps exploit.

Our neighbour, Pakistan, has had a number of military led coup d’etat in which the Constitution has either been bypassed, amended or even scrapped and then reconstructed. Pakistan started with the same administrative, legislative and judicial framework as India and with the same political philosophy which provided for a democratic polity. India continued to strengthen its democratic roots and institutions, whereas Pakistan chose the path of military dictatorship interspersed with some form of civilian government from time to time. In fact, the ouster of Gen. Pervez Musharraf, the establishment of civilian government in which Asif Ali Zardari became the President and the peaceful succession of Nawaz Sharif as Prime Minister is a record in Pakistan because it is for the first time that transfer of power has occurred through a process of election. However, whenever Pakistan has had a military coup, the Supreme Court of that country has stoically refused to intervene judicially by quoting what it referred to as “the doctrine of necessity ”, That such a doctrine does not exist in Anglo Saxon Jurisprudence is conveniently forgotten.

In Germany, the weakness of the Weimar Republic and the post First World War collective humiliation of Germany and its people did create a yearning for strong government. Hitler and the Nazi Party came to power in 1933 or the basis of an election in which the party won only forty four percent of the votes, but claimed power as the single largest party. With great reluctance an increasingly senile President, Field Marshal Hindenburg, agreed to invite Hitler to be Chancellor, that is, Prime Minister. Because Hitler was desperate for absolute power he arranged for a magnificent opening of Parliament, the Reichstag, by the President in which he spared no effort to massage Hindenburg’s ego. Immediately thereafter on 5th March 1933, Hitler asked Parliament to enact the “Gesetz zur Behebung der Not von Volk und Reich”. Its English translation is “The Law For Removing The Distress of The People And the Reich”. In popular parlance it came to be known as “The Enabling Act”. This is an amazing piece of legislation in that Parliament handed over all its constitutional duties and powers to the Chancellor and the Reich Cabinet. Under this Act, laws were to be prepared by the Chancellor and could deviate from the Constitution. The budget, treaties with foreign powers, constitutional amendments were all to be within the exclusive jurisdiction of the Chancellor and cabinet. In other words, all legislative powers now passed to the Executive which, in practical terms, meant Hitler. Parliament virtually ceased to exist, though it was never formally abolished. On 9^th March 1933, the Laender, or States, were abolished. In May 1933, trade unions were abolished and in July 1933 the Nazi Party became the sole political party in Germany. The transition to a single party dictatorship was thus completed, ostensibly under a law enacted by Parliament and within the framework of the Constitution. Hitler thus used the Constitution to abolish the Constitution itself.

The question remains whether this frightening scenario can ever be repeated in India. The Constitution is very strong and one of immutable parts of the Constitution, the Preamble, defines India as a “Sovereign Socialist Secular Democratic Republic”. But is the Preamble really immutable? Prior to the Forty-second Amendment of the Constitution in 1976, the wording was “Sovereign Democratic Republic”. During the Emergency the words “Socialist Secular” were added. If the Preamble is a part of the basic features of the Constitution, how could it be amended? The fact that it was and that it has not been challenged raises doubts whether other features of the Constitution can similarly be amended.

Whereas in India we do not recognise the doctrine of necessity as part of our jurisprudence, the Supreme Court headed by Justice A.N. Ray came dangerously close to ruling along these lines during the Emergency. A full bench of the Supreme Court, which included Justice P.N. Bhagwati, ruled that during the Emergency not only did the fundamental rights stand suspended but even a citizen’s right to life itself was not guaranteed. Virtually this meant that if the State arbitrarily decreed the death of a citizen he had no legal remedy. This was the darkest hour in the history of our Supreme Court, redeemed only by the landmark dissenting opinion of Justice H.R. Khanna in which he totally disagreed with the majority that the fundamental rights could be suspended. Nevertheless the majority opinion of the Supreme Court was in favour of executive arbitrariness, which is the essence of totalitarian rule. Fortunately we have had High Courts such as Delhi High Court under the Chief Justiceship of Justice Tatachar who, in the Bhim Sen Sachar case, ruled that even if writ jurisdiction under Article 226 was suspended, the inherent powers of the High Court under section 482 Cr.P.C. were not and could not be suspended and, therefore, the High Court ordered the release of Bhim Sen Sachar, Kuldip Nayar and others. Put another way, the judiciary in India does have a very important role in ensuring that a constitutional coup d’etat does not occur.

The scheme of the Constitution provides for a separation of powers so that at no time can excessive power be concentrated in the hands of one wing of the State. But in a Westminster type of democracy, where the formation of government is dependent upon a majority in the House, there is a form of concentration of power in the Prime Minister and his Council of Ministers. Parliament is independent of the Executive, but in effect legislation depends on what the Prime Minister decides because with a majority in Parliament, by issue of a whip, the Prime Minister and the Council of Ministers can push any legislation through Parliament. Here the Legislature works at the beckoning of the Executive, provided that the Prime Minister is strong. If the Prime Minister is weak then legislation can come to a halt because government itself has to make compromises in order to survive. We thus have a piquant situation in which if the Prime Minister is strong Parliament becomes subservient and if he is weak government becomes ineffective and legislation cannot be pushed through Parliament. Both are highly tragic scenarios and bode no good for the country.

Does that mean that it is possible to make Parliament enact a law similar to the Enabling Act? Suppose a Prime Minister as strong as Indira Gandhi were to have Parliament enact such a law. To come on the statute book such a law would require the assent of the President who, under Article 74 of the Constitution, is bound to act in accordance with the advice of the Prime Minister and the Council of Ministers. A Bill to which the President refuses to give assent under Article 111 does not become law, unless the President returns the Bill and Parliament, after considering it, resubmits the Bill for assent. On this, the President cannot withhold assent, which would be as true of a normal Bill, a Money Bill or even the equivalent of the Enabling Act. What the President, however, can do is something which Giani Zail Singh chose to do with the Postal Bill. He neither gave his assent nor returned the Bill to Parliament, Instead he sat on the Bill and because there is no time limit given in Article 111 for the examination of a Bill by the President, he continued to delay it till the House was dissolved and the Bill lapsed. The President could do something similar to legislation of the Enabling Act type and this is one of the safeguards we have against constitutional dictatorship. Of course if the President is like Fakruddin Ali Ahmed we might end up with an Enabling Act being enacted and brought on the statute book.

Let us move to a hypothetical situation in which the President of India dissolves the House of the People. Of course in order to do so he would need the advice of the Prime Minister, but in case government loses the confidence of the House, then the President as per our conventions does not have to heed the advice of the Prime Minister. He may decide to continue with the House, invite an alternative party to form the government, or dissolve the House. Under these circumstances, because Parliament has to meet within six months of its last session under Article 85 of the Constitution, dissolution of the House has to be followed by election within the next six months. During this interregnum, the President is bound to call upon a person to be Prime Minister, albeit a caretaker Prime Minister, because the Constitution does not permit the imposition of President’s rule at the level of the Union. Supposing the President invites a person who is not a politician but is, say, the Chief of Army Staff or anyone else whom the President trusts and who would give the President the advice that he desires. Because Parliament would not be in session Article 123 would give the President the power to promulgate Ordinances which would have the effect of an Act. Article 368 provides for the amendment of the Constitution and the powers of Parliament in this behalf. The question is whether by Ordinance the President can exercise the power of Parliament to amend the Constitution. Articles 123 and 368 nowhere categorically state that the Constitution cannot be amended by an Ordinance and the legislative powers of the President do not extend to legislating for amendment of the Constitution. Perhaps the saving grace is that Article 368(2) states, “An amendment of this Constitution may be initiated only by introduction of a Bill for this purpose in either House of Parliament…” By any construction or interpretation this would rule out amendment by Ordinance, but because Article 123 is silent in this behalf, is this enough? An Ordinance requires that the President is satisfied that immediate action is necessary. Can a major security concern not call for immediate action, including amendment of, say, the Union List of the Seventh Schedule, empowering Parliament to legislate on police and law and order?

This is a lacuna which needs to be studied and, if the constitutional experts feel that there is a loophole here which needs to be plugged, let it be plugged immediately, lest a President unduly influenced by the example of Hitler decides to be adventurist and explore the possibilities of Article 123 being used to negate Parliament itself. I know that many will consider me alarmist for referring to something which is unlikely ever to happen, but we have had the case of Justice Ramaswamy against whom thirteen charges of corruption and misuse of office were found proved by a tribunal of the Supreme Court under Article 124, but who continued in office because through political manoeuvring he was able to persuade that the Congress Party abstain and the absolute majority needed to be mustered under Article 124 (4) for impeachment of a judge did not come through. The makers of the Constitution had never dreamt that a judge could ever do what Ramaswamy did and, therefore, let us not be complacent about the power of mischief of a renegade President, exercised under Article 123.

Of course the question still remains whether anyone would accept the validity of the equivalent of the Enabling Act. Would the courts rule such an Act to be constitutionally valid? Theoretically possible but in practice completely unlikely. Would the Civil Service acquiesce in the imposition of the dictatorship? Most probably yes, but during the Emergency we have had officers such as Y.N. Chaturvedi, D.M. Rewa and K.K. Chakraborty, D.M. Satna in Madhya Pradesh who refused to sanction the detention of Opposition Leaders under MISA because they ruled that they were not satisfied that there was any reason to do so. I myself wrote to all the editors of newspapers that so far as my departments were concerned censorship would not apply and they were free to give objective news coverage of all our activities. This means that there are elements in the Civil Service who would not carry out orders which are patently unconstitutional, though cloaked in the garb of a law. Still, I would hesitate to confidently and categorically state that the Executive as a whole would resist authoritarian rule.

This brings us to the real life situation of June 1975. Indira Gandhi, the Prime Minister, after a ruling of the Allahabad High Court that her election to Parliament was vitiated by electoral corrupt practices and, therefore, was set aside, should have resigned. In a democratic polity such a ruling has to be accepted with grace and the person ruled against must immediately demit office and step down. But if a person is imperious like Indira Gandhi what does that person do? He or she takes shelter under Article 352 of the Constitution which permits the President to proclaim a State of Emergency and thereafter virtually take over the Government of India. Indira Gandhi resorted to such a proclamation and under it assumed powers to rule absolutely. It is under such a proclamation that the fundamental rights were suspended by recourse to Articles 358 and 359. In this behalf I would like to recall certain words of Article 359, sub clause 1 of which reads , “Where a proclamation of Emergency is in operation, the President may by order declare that the right to move a court for enforcement of such of their rights conferred by Part VIII (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order” .

In 1975 this was interpreted as a suspension of fundamental rights because Article 359 was read with Article 358. Article 358 merely states that nothing in Article 19 will restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in that Part, be competent to make or to take. As soon as the word ‘law’ is used, even if the letter and spirit of Article 19 does not apply, the State does not acquire the power of arbitrariness and, therefore, Article 19 would continue to be the guiding factor subject to legal restrictions which would neutralise the enemies of the State. The purpose of Articles 352, 358 and 359 is to protect the security of India, especially by war or external aggression, but none of these Articles are aimed at Indian citizens at large, nor do they permit the Executive to exercise arbitrary powers against citizens who do not constitute any threat to India. Indira Gandhi’s interpretation of these Articles and the shameful surrender of the Supreme Court in this behalf will always stand out as a huge black mark against both of them in their attempt to extinguish democracy from India.

The issue before us, however, is whether there can be a constitutional coup d’etat. Our institutions over time have struck deep democratic roots and it is unlikely that the country would accept a subversion of the Constitution by constitutional authorities themselves. At the same time one cannot altogether rule out some mad man, fortunate enough to be elected and projected to power, from trying to be adventurous. Constitutional experts must advise on whether or not the Constitution itself needs to be strengthened so that there are no provisions in it which can be misused to destroy the Constitution. For this purpose we must review the checks and balances in the Constitution and if there is any imbalance, then it must be corrected. In this behalf let me recommend what Article 20(4) of the German Constitution states, “All Germans shall have the right to resist any person or persons seeking to abolish the constitutional order, should no other remedy be possible”. This has a constitutional appeal to the people not to accept anything which hurts the Constitution and gives them the right to individually or collectively resist it. Perhaps we need not go that far in India, but the time has come for us to collectively build into our Constitution safeguards which would prevent any would-be dictator, political adventurist, or buccaneer from attempting to take over the State.

From Fear of Law Grows Respect for Law

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

India is gradually turning into a country where not only there is no respect for law, there is not even a fear of law. Laws are what bind a democratic society together because they create a social contract within a framework of laws which determine interpersonal relations and prescribe the bounds within which the fundamental rights, especially under Article 19 of the Constitution, may be exercised to maximise freedom while ensuring that the exercise of rights by one individual does not impinge upon the rights of another. Thomas Hobbes viewed the social contract not so much as a society of laws but rather as a discipline which ensured that the state of nature did not degenerate into the law of the jungle. To him John Locke’s state of nature was abhorrent because in it “ …dissolute condition of master less men, without subjection to laws and a coercive Power to tie their hands from raping and revenge… would create conditions in which there would be … no place for industry, … no culture of the earth; no navigation… no Arts; no Letters; and which is worst of all, continual fear and danger of violent death; And the life of man solitary, poor, nasty, brutish and short”. Such a social contract has a place only in a dictatorship, but the fact remains that unless there is a society of laws in which democratically framed laws provide the framework within which society will function, public order and tranquility cannot be maintained. For civilised society to exist, for democracy to flourish, we need a system of laws and for all citizens to work within the framework of law, respect the law and obey it.

Is India a society of laws? It claims that it is a democracy because every five years the people at large, through the ballot, have the right to vote a government out of power and to determine who will form the next government. But democracy demands that society will function according to laws and that there will be no arbitrariness, no violence and certainly no tyranny of an individual, a group or a set of interests which may try and impose their own views on the rest of society. In such a society, no one is allowed to decide which laws he or she will obey and which laws will be ignored, nor can anyone decide to take the law in his own hands because he is dissatisfied with certain events or with certain things of which he disapproves. The Indian Constitution guarantees the fundamental right of freedom of speech and expression, peaceable assembly and the formation of association or unions. However, these rights are subject to reasonable restrictions, to be determined by law, so that by exercising their rights no citizen or group jeopardises the security of the State, leads to incitement of an offence, disturbs public order, decency or morality or brings courts into contempt. It is for this reason that the Code of Criminal Procedure creates an Executive Magistracy, a judicial system and empowers the Magistracy and the Police to prevent offences, take preventive action in this behalf, issue prohibitory orders, order unlawful assemblies to disperse and to use necessary force to enforce the order and to take all such measures as many be necessary to ensure that public order, peace and tranquility are not disturbed. If an offence does occur, then the law empowers the police to register an offence, investigate it and produce the person against whom a prima facie case is made out before a judicial court. The courts are empowered to take cognisance of offences, charge-sheet and try offenders and, on conviction, award a suitable sentence as prescribed by law.

Such a system totally and absolutely precludes lynch law in which extra judicial punishment is inflicted by persons or mobs who not only are not empowered to punish but who themselves commit an offence by inflicting extra judicial punishment. However heinous the offence, the right to investigate, prosecute and punish vests in officers and courts mandated by law to perform this duty. Street agitations and trial by media are no substitutes for legal process. The worst form of extra judicial punishment is a riot in which a mob not only takes the law into its hands but indulges in acts of violence, including causing death, arson, molestation of women, loot and worse. A riotous mob represents the ultimate breakdown of law and order and the absence of government.

Recently in Muzaffarnagar District of Western U.P, an altercation took place between a Muslim boy and two Jat boys on an allegation that the Muslim boy had tried to molest a Jat girl. This matter could have been sorted out by the village elders or the police. Instead the situation took a violent turn, the three boys were killed and Jats and Muslims, who normally lived in close harmony, were at each other’s throats. Almost fifty people were killed and about fifty thousand people rendered homeless. It is only when the Army was called in that the situation limped back, not to normal but at least to a stage where the public peace was being maintained. The district administration of Muzaffarnagar, which should have intervened in the very first hour, seemed to be paralysed and there is some evidence that ruling party leaders directly intervened in order to make the police inconsequential and some opposition party leaders actually instigated violence. The cause of violence may be a small quarrel but the reason why riots continue over a long period of time is that the district administration and the police hesitate to act and, therefore, are paralysed and this encourages law breakers to take matters into their own hands. In the eighties of the last century, we have seen this happen in Meerut and in every case where rioting has been prolonged it is the failure of the district administration to intervene forcefully which had led to continuing violence.

Of course there is a political dimension to the problem. This is that political parties of all hues have started interfering in day-to-day administration with an effort being made to make the Magistracy and the Police so subservient that instead of enforcing the law, officers pander to the whims of the politician. In Articles 77 and 166, the Rules of Business clearly prescribes the functions of the political executive and the permanent executive. The Police Act gives the powers, responsibility and accountability of the police and the Code of Criminal Procedure gives the powers and duties of the Executive Magistracy and the Police. The scheme of rule of law in India is that whosoever the legislature empowers under law to perform a particular function or duty is required to perform such duty strictly in accordance with the legal mandate given to him and not at the behest of anyone else. Not even the Chief Minister of a State can direct or compel a Magistrate or a police officer to function in a partisan manner or seek the orders of politicians and others on how to deal with a law and order situation. In fact, apart from the Executive Magistracy and the Police, the law mentions no one else as having any powers whatsoever to deal with such a situation.

A police officer of the lowest rank is duty bound to prevent the commission of an offence (rioting is an offence), apprehend law breakers and take necessary steps to ensure that public order is maintained. He requires no one’s direction in this behalf and in fact if he hesitates he himself becomes a partner in law breaking. It is the job of the political executive to create an environment in which the magistracy and the police are enabled to function according to law so that the mandate of the legislature is fulfilled by them. Law and order breaks down only when the district administration fails to take timely action.

Incidentally, the worst communal riots in the history of that State occurred in 1969 when Hitendra Desai was Chief Minister. The Commissioner of Police of Ahmedabad had an understanding that the police should not use force and, therefore, the Ahmedabad Police was not only unprepared, it was actually disarmed. This understanding arose out of the officers’ thinking about what the Chief Minister, a Gandhian, wanted. The Chief Minister never tried to disillusion him in this behalf or to remind the Police Commissioner that it was his job to maintain public order. The district administration twiddled its thumbs whilst Ahmedabad burnt and it is only when my batch mate, H.K. Khan and a group of young IAS and IPS officers were brought in to control the situation that matters improved.

In Uttar Pradesh, the Samajwadi Party is not pro Hindu—in fact it leans over backwards to woo the Muslims whom it consider its own vote bank. Despite this, communal riots took place in Western U.P. and the government failed to anticipate the situation and subsequently to control it. In UP, the district administration has been interfered with and distorted by the politicians to an extent where the Magistracy and the Police no longer function independently. This is a certified recipe for disaster.

What has emerged in India is that law enforcement at all levels has declined. When I was a young District Magistrate it was expected that every police officer not only knew his duty but would intervene at the earliest juncture if he saw a situation developing which could lead to a breach of the peace. This, in turn, engendered both fear of the law and respect for it. Once a law breaker knows that he will be caught and punished he would be deterred from breaking the law. But, however, if people collectively feel that they can take the law into their own hands, there will neither be fear or law nor respect for law. People who claim to have a grievance no longer hesitate to blockade public streets and to disrupt traffic for hours on end. Railway lines are blocked because local people demand the stoppage of a train at their little station, thus throwing life out of gear throughout the railway system. Communities agitating for recognition as a backward class block off whole sections of the railway track and prevent the movement of goods and people over large sections of railways. What right do they have to stop the free movement of people in an India where Article 19 of the Constitution guarantees freedom of movement? People barge into hospitals and beat up doctors, hooligans wreck restaurants on St. Valentine’s Day, people jump traffic lights, encroach on public streets, defy lawful orders and resort to violence on trivial issues. There is no element of Gandhian Satyagraha in this. Such acts are the tyranny of a small minority which feels that violence is justified to put forward its point of view. Our administration tolerates all this and more and this has created an environment in India where there is no respect for law.

Pre modern India had its own code in which elders were respected, the Mohalla collectively decided what was permissible and what was not. Aberrant behaviour towards women resulted in a social outcry and a boycott of the errant person and society as a whole felt responsible for the safety and dignity of women. All this is a matter of the past and Khap Panchayats are only a reflection of traditional society trying to rediscover and enforce the old constraints. When traditional remedies no longer work, the law must step in. And for it to be able to do so, every transgression of law should be treated as an offence which must be punished. When people begin to fear that violation of law will lead to unpleasant consequences for themselves they will automatically begin to fear law because they know that there will be zero tolerance law enforcement. A stage then comes when obedience of law becomes an automatic reflex and from this is born a respect for law as something which must be obeyed because it is in the interest of the society to do so. When that happens, the authorities charged with law enforcement will begin to enforce the law without fear or favour and India will be a much more peaceful country.

There are certain minimum requirements which precede strict enforcement of law. The most important of these is that law enforcement agencies, mainly the police, should be provided a blueprint of what is expected of them and for this purpose government, in whom superintendence vests, must lay down the rules, the regulations in the police manual, the scheme of policing and the broad guidelines within which the police is required to function. The police, under its own hierarchical command structure, must then be told that it will function within the law and the framework of rules, regulations and guidelines and in doing so neither would anyone be allowed to interfere with its working, nor would officers be required take orders from anyone except from their own superiors while performing their lawful functions. The law, especially the Code of Criminal Procedure in the matter of investigation of offences, already provides for such autonomy of functioning, but this needs to be backed up by rules, regulations and a policy framework within which the police is immunised from undue interference and the officers are ensured stability of posting. In this behalf, I commend the words of the Soli Sorabjee Committee on Police Reforms in the model Police Bill drafted by it. The committee states in the section relating to superintendence of the police, “ (1) It shall be the responsibility of the State Government to ensure efficient, effective, responsive and accountable Police Service for the entire State. For this purpose the power of superintendence of the Police Service shall vest in and be exercised by the State Government in accordance with the provisions of this Act. (2) The State Government shall exercise its superintendence over the police in such manner and to such an extent as to promote the professional efficiency of the police and ensure that its performance is at all times in accordance with the law. This shall be achieved through laying down policies and guidelines, setting standards for quality policing, facilitating their implementation and ensuring that the police performs its task in a professional manner with functional autonomy”. This is the real ideal of the relationship between government and the police in which government guides and the police performs. To this may be added what the committee has recommended about coordination within the district administration in which the District Magistrate will coordinate the functioning of the police with other agencies, especially in matters of public peace, tranquility, removal of persistent public grievances and interdepartmental coordination. If the Magistracy and the Police function according to law, if there is zero tolerance policing so far as crime is concerned, we can build both fear of law and respect for law.

How All India Are The All India Services?

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Article 1 of the Constitution makes India a Union of States and the Seventh Schedule framed under Article 246, by containing List 1, the Union List, List 2, the State List and List 3, the Concurrent List prescribes the legislative bounds of Parliament and the State Legislatures in what is basically a quasi federal structure. Part XI, which refers to the relations between the Union and the States, whether legislative or administrative, defines the extent to which the legislative and administrative jurisdictions of the Union and the States extend and to what extent the Union writ prevails over the States. The Union, while giving constitutional autonomy to the States within their respective executive and legislative competence, is centripetal in that under Article 248 residuary powers of legislation vest in Parliament.

The quasi federal structure of India is somewhat different from that of the constitutional structure of other Federations, for example, the United States of America. In the United States, separation of powers between the Federal Government and State Governments is complete in that in matters legislative, executive or judicial, the Federal Government functions through federal officers and federal judges, as also Congress in matters within the federal competence and the State Governments function through their own set up in matters within State competence. The Federal Government has its own civil servants who administer the areas which come within the legislative competence of Congress and the States have their Civil Services which operate in areas within the competence of the State Legislature. However, the Indian Constitution has a unique structure embodied in Article 312 which permits Parliament to make laws for the creation of what are known as All India Services. The same Article states that the Indian Administrative Service and the Indian Police Service which predate the Constitution would be deemed to be created under Article 312. The same Article also permits the creation of an All India Judicial Service, though none has been constituted so far. The All India Services are covered by the All India Services Act, 1951 and rules have been framed under the Act, including the Cadre Rules, the Conduct Rules and the Discipline and Appeal Rules. Under the Cadre Rules, posts in the Central Government and the State Governments in the two initially constituted All India Services, the Indian Administrative Service (IAS) and the Indian Police Service (IPS) and the subsequently created Indian Forest Service (IFS) are prescribed and against these posts only an IAS, IPS or IFS officer can be appointed. There is provision for lateral entry by promotion from State Services or by induction through limited special recruitment, but the fact remains that the senior posts in the General Administration, which include Revenue and Development Administration, the Police and the Forests, including wildlife, can only be held by an officer of the IAS, IPS or IFS respectively. The uniqueness of this constitutional provision is that whereas India is a Union of States, it is a union or federation in which the senior Civil Service posts, including the Police and the Forest Department, are held by officers who are under the direct rule making control of the Union Government. The officers are assigned to a State Cadre and normally serve under the State Government, but they are liable to transfer either for service under the Union Government or, under certain circumstances, on deputation to other State Governments, public sector undertakings and as the rules stand today, to international bodies or even to private undertakings.

An All India Service officer is appointed by the President and can be removed from Service or awarded a major penalty only by the President. An All India Service officer is recruited through the Union Public Service Commission, his promotion through a departmental promotion committee even within the State is done through such a committee, which has representatives of the Union Public Service Commission and of the Government of India. The State Government’s authority over the All India Service officers is limited by the provisions of the rules framed under the All India Services Act.

One need not discuss in detail why the All India Services were thought necessary and were created in a quasi federal structure, but some knowledge of the background does help. British India was governed as a unitary state in which for administrative purposes, the country was divided into Provinces, each headed by a Governor. Elements of federalism were there even under the 1919 Government of India Act and were strengthened under the 1935 Government of India Act and the Provinces did enjoy a fairly high degree of autonomy because a country as large as India cannot be administratively managed from one power centre alone. In fact, in those days of poor communication links, the districts were fairly autonomous and the D.C. and S.P. were required to take decisions on the spot, which government invariably supported. Therefore, the provincial governments had considerable freedom of action, including the setting up of provincial services, but the country was held together by what were known as the Imperial Services of which the Indian Civil Service, or ICS was at the apex. The other major Imperial Service was the Indian Police or IP, but there was an Indian Forest Service, Indian Service of Engineers and an Indian Medical Service of all India nature. The Imperial Services were appointed by the Crown and not by the Viceroy and Governor General. When India became independent and the provinces became States which had constitutional legitimacy, the Indian Civil Service was carried forward as the Indian Administrative Service. In some ways, the legal provisions of the Government of India Act 1935 were carried forwarded into the Constitution, with cast iron constitutional autonomy being enshrined in lieu of the surrogate autonomy of the provinces granted by the Government of India Act 1935.

The reason why we provide for an All India Service in a quasi federal constitution, apart from the need to have continuity in the administrative set up in India after we became independent, was Sardar Vallabhbhai Patel’s clear understanding that India had major fissiparous tendencies which needed to be controlled and countered by building into the Constitution centripetal features which would hold the country together. A unified judicial hierarchy, the All India Services, a single independent audit organisation under the Comptroller and Auditor General, with constitutional power of the Central Government to give directions to the States under certain circumstances and the power of the President to take over the administration of the States under Article 356, are all parts of the centripetal features of our Constitution. Sardar Patel was firmly of the opinion that if the executive government of the States and the Union was carried out through officers of All India Services, who were protected and immunised from arbitrary action by the political class, then not only would we have a nonpartisan administration where officers work without fear or favour but a united India would also be ensured through these Civil Services whose ultimate rule making control is vested in the Central Government. Hopefully this would eliminate political whimsicality from the administration.

Upto 1967, the system worked extremely well and this was possible because, by and large, the Governments, both at the Centre and in the States, were formed by the same party. In 1967, suddenly the politics of defection through purchase of power was introduced and now power was up for grabs. Thus began an era of political uncertainty in which the politicians, in order to remain in power, had to use bribery as a major weapon. Money for bribes can only be made by misusing the instrumentality of State power and obviously an impartial and fearless Civil Service would be an obstruction in obtaining such money. The Civil Service had to be tamed and the politicians proceeded to do this with vim and vigour, using the instrument of posting and transfer as a major weapon. In 1975, when Indira Gandhi declared a state of Emergency and concentrated all power in herself, a new slogan of a committed Civil Service was added to our administrative lexicon. A committed Civil Service meant that civil servants would no longer necessarily be servants of the law and would be prepared to carry out the will of the political masters, even if it meant that the administration became partisan. At this stage, intimidation of civil servants was added to the armoury of the politicians and not only were honest, impartial civil servants sidelined, many of them were subjected to humiliation through suspension and worse. So long as the Central Government continued to be under a single party, some element of protection was available to the civil servants, especially the All India Services.

However, when the Central Government became weaker and we entered into an era of unprincipled coalitions, narrow political interests very often overtook the legal provisions relating to the All India Services and in many States the local satraps arbitrarily decided the fate of civil servants because the ruling coalition in the centre needed their support in order to remain in power and hesitated to protect the civil servants. In some States, the politicians went berserk and Uttar Pradesh and Bihar are two glaring examples of how the All India Services were hounded, bullied and bludgeoned into virtual servility by totally arbitrary actions of Chief Ministers such as Mulayam Singh Yadav, Lalu Prasad Yadav and Mayawati. In West Bengal and in Kerala, the Left Front Governments did not act in a crude manner but they did take political decisions whereby in areas of interest to the party in power, the civil servants were rendered helpless. Industrial unrest is one area where the police and the magistracy were reduced to impotence where the interests of the Left Front were concerned. Here it is what the party dictated which mattered and not the law. In Tamil Nadu, whereas both the DMK and the AIADMK Governments left the cutting edge level of the district administration more or less alone because the Collector was used for efficient delivery of such services as were politically ordained, at senior levels the All India Services were made subservient.

This was a total negation of Sardar Patel’s ideal of an impartial Civil Service, immunised from undue political influence and, therefore, in a position to give advice without fear and favour and to administer without bias. Over the years, the position has worsened. The standard joke in Uttar Pradesh is that the Annual Confidential Report of an IAS or IPS officer serving in the districts is seldom written because hardly any officer serves for even three months in a district before being transferred and the ACR must span at least a three months tenure. There is total whimsicality in such transfers. The Queen of Hearts in the book ‘Alice’s Adventures in Wonderland’ was in the habit of going around shouting, “Off with his head”. That is how Mayawati behaved, that is how Mulayam Singh Yadav operated. It is unfortunate that senior officers at the level of Chief Secretary and D.G. Police have been silent spectators to the virtual destruction of the Civil Service hierarchy and have not had the courage to open their mouths in protest.

I have a theory about this which is based on my own experience. After I was removed from the Delhi Development Authority towards the end of 1979, I spent a whole year without a posting in Delhi and somehow the impression was created that I was dissatisfied or disgruntled. The fact is that I was being paid my full salary without having to do a stroke of work and was personally very comfortable, but it is true that being on the shelf is never a good feeling. There were several of us who were similarly placed, including Hari Pillai and Ved Marwah of the IPS and JC Jaitley of the IAS. Krishnaswamy Rao Sahib, who was then Cabinet Secretary, sent for me and wanted to know why some IAS officers were disgruntled. I asked him whether he wanted an honest answer and when he said that that was what he wanted, I told him that the real reason why there was some dissatisfaction is because a whole succession of Cabinet Secretaries had not put their heads on the chopping block. He was a little taken aback and wanted to know why I said this. I told him that there were a number of us without a posting for no fault of our own except that some politicians were annoyed with us and that even for postings at junior level, officers were being informally advised to find a political godfather. I said that successive Cabinet Secretaries were probably looking for their governorship on retirement and, therefore, were hesitating to stand up for these Services. In my view, the Cabinet Secretary should have told the Prime Minister that personnel management was his job and not that of the politicians, whose job was to frame policy. Anyway, the meeting ended inconclusively, though to give the Cabinet Secretary his due, he did not hold my acerbic remarks against me.

Recently, a young IAS officer with two years service, Durga Shakti Nagpal, has been placed under suspension by the Uttar Pradesh Government because she took on the powerful political and commercial interests behind illegal sand mining. There are innumerable decisions of the Supreme Court and the High Courts calling upon government to control illegal mining and it is the duty of civil servants to implement these orders. If, however, the politicians are to harass civil servants doing their duty, how will the rule of law prevail? Javed Usmani, the Chief Secretary of Uttar Pradesh, should have stood up to the Chief Minister and opposed the suspension of this young officer. Instead, he has become a party to framing a false and frivolous charge-sheet against the officer to try and justify the suspension. Durga Nagpal’s case is one of many in which civil servants of the All India Services are being harassed. The IPS is a major target because politicians want to use the police for furthering their own ends. I remember a case in which Mayawati, because she was annoyed with the SSP of Lucknow, suspended him and transferred the DG Police, Zonal IG and the Range DIG and this happened in the presence of the Chief Secretary. Did that worthy protest at these totally irrational orders? He preferred to be a silent spectator. This weakened his own position also. What a contrast with RCVP Noronha, the then Chief Secretary of Madhya Pradesh, who not only resisted the wholly unjustified suspension of R.S. Khanna, the then Sales Tax Commissioner, by P.C. Sethi, Chief Minister, but refused to issue orders and when Sethi asked whether or not orders would be issued, replied, “They probably will be issued, but by my successor”. It is P.C. Sethi who stepped back.

How do we remedy the situation? The Supreme Court, in a writ petition filed by Prakash Singh, IPS (retired), has been pressing the Central Government and the State Governments to immunise the police from undue political influence. The Supreme Court wants the Police Act to be amended to give the police autonomy, to provide tenure for officers from the rank of Station Officer up to DG Police and to protect officers from arbitrary action by government. Why is the Supreme Court suo motu not extending this to all the Civil Services and in particular the two other All India Services? It is about time that we put in place a set of laws and rules which, whilst accepting that it is the elected representatives through the Council of Ministers which will have the final say in all matters relating to policy of governance, the Civil Services are also be given due protection against arbitrary action by the politicians so that they can perform their task of implementing lawful orders without fear or favour. One set of rules which need immediate amendment is the All India Services (Discipline and Appeal) Rules 1969. Rule 3 relates to suspension. Under this rule, a State Government may suspend an All India Service officer serving in that State Cadre. The opening words of Rule 3 are important and they read, “If, having regard to the circumstances in any case, and where Articles of Charges have been drawn up, the nature of the charges, the government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that government may, if the member of the Service is serving under that government pass an order placing him under suspension…” The same rule, however, says that if there is a difference of opinion between the Central Government and the State Government about the suspension order, then the opinion of the Central Government shall prevail. In the Durga Nagpal case, the order of suspension and the grounds of suspension are so flimsy and so obviously contrived that the Central Government should have treated this as a case of disagreement with the State Government and should itself have quashed the suspension order. It is not necessary to wait for ninety days, within which period a charge sheet has to be served.

Considering the fact that there are many State Governments which are misusing the power of suspension, we need to amend the rules on the following lines:-

The State Government should have no power to suspend an All India Service officer except on the following grounds:-

(a) The officer’s conduct is under investigation in a criminal case, in connection with which the officer has been arrested and remanded to custody in excess of forty-eight hours.

(b) The officer’s actions are so prejudicial to public safety or national integrity that he must be neutralised without delay. However, in every such case, the State Government must submit a report within forty-eight hours of the order to the Central Government, which may then decide whether or not to continue the suspension of the officer.

(c) In every other case, if the government feels that the suspension of an officer is in the public interest it must make a report to the Central Government, which may decide whether or not the officer is to be placed under suspension.

Other than this, the State Government should have no power whatsoever to place an All India Service officer under suspension. This is all the more so because the power to impose a penalty on an All India Service officer vests in the Central Government and can be imposed only in consultation with the Union Public Service Commission. This would go a long way in ensuring that the All India Service officers function without fear and favour.

There is another set of reforms that we need if we have to make the All India Service truly national in character. At present there are many officers who, after allocation to a State Cadre, never serve outside that State. This must immediately end. In the approximately thirty-five years span of service, an All India Service officer should serve outside his cadre for at least ten years. Every All India Service officer should have one stint of five years of service in a cadre other than the one to which he is allotted, that is, he must serve under a State Government other than the one to which he is allotted. He must also put in an additional five years stint in any post under the Central Government. Thus, in his thirty-five years of service, at least ten years will be spent outside his parent cadre. The idea is that an All India Service officer must serve anywhere in India and not be confined to just one State. This would widen his horizon and give him an all India perspective, which is very necessary if our All India Services are to have a national character.

There is another suggestion I have to make, which is that the All India Services must be made to realise that they are servants of the law and not the personal servants of a politician. Therefore, if a civil servant has acted in a manner which promotes the interests of a politician or a political group and in doing so has been in violation of the law, then, if the State Government does not take action, the Central Government must charge-sheet the officer and take disciplinary action against him. Every All India Service officer must be made to realise that if in order to curry favour with State politicians, he acts in a manner prejudicial to law, he will have to face the consequences because the Central Government will intervene. This is the only way to curb the whimsicality of wayward Chief Ministers who are under the false notion that they are above the law and can, therefore, expect senior civil servants to even ignore the law to serve the interests of the Chief Minister. If condign punishment is awarded in a few such cases, it would have a salutary effect in reminding the All India Services where their duty lies.