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.

Managing Land - A Holistic View

Dr. M.N. Buch

Visiting Fellow, VIF

List 2 of the Seventh Schedule of the Constitution, which gives the exclusive jurisdiction of the States, in Entry 18 reads, “ Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant and the collection of rent; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization”. However, Entry 42 of List 3, the Concurrent List, gives concurrent jurisdiction to Parliament and the State Legislatures in the matter of acquisition and requisitioning of property. At the same time under Entry 20 of List 3 puts economic and social planning in the realm of both the Centre and the States. To the extent that the use of land affects the economy the Centre does have a say in the planning of land use.

Land is the resource on which cities are built, industries are established, roads and railway tracks constructed, agriculture is done, forests are conserved and expanded and mining and extraction operations effected. This is the common resource for practically every human activity. The National Commission on Urbanisation devoted a whole chapter to land as a resource. This is what the Commission has to say about land.

I quote in extenso because this is about the best coverage of the subject. Purely as on aside, as Vice Chairman of the Commission I wrote the chapter on “Land as a Resource” and, therefore, at worst I am only quoting myself.

“Land is the medium on which the entire superstructure of a human settlement is created. On land man builds his houses, constructs his factories, shops, schools and hospitals. From land he extracts metals and minerals and on it he grows his grain, fruit and flowers. The relationship between man and land, therefore, is organic and symbiotic. Where land is managed with foresight, sympathy and understanding, an environment is built up in which the whole ecological system tends towards equilibrium. Where, however, land is mismanaged and exploited rather than used, the result is blight. By and large, the way man has managed land, especially in India, there has been environmental degradation, and nowhere more so than in our cities”.

The Commission further states:-

“The management of this critical resource is qualitatively different in the urban and the rural context. Rural land is a factor of production, the major input for the main rural economic activity, agriculture. Urban land, on the other hand, by and large, is the base on which things are built. Rural land is predominantly under a repetitive cycle of sowing, tending and harvesting, whereas urban land is converted or diverted to a built environment on a one-time permanent basis. Because it is constantly reused, rural land is generally better managed than urban land which is often utilised for an expedient profit, without thought of long-term consequences. This is perhaps why our exercises in land planning tend to be restricted to urban areas in the form of master plans, there being an underlying assumption that rural land will be properly managed in any case.

In large measure, it is our attempt to plan land use, divorced of a wider understanding of human behaviour under the stress of city dynamics, which has contributed to the present urban chaos. While land use planning alone cannot sort out the urban mess, the management of land can certainly be improved so that land is viewed in its correct perspective, as a resource, and its use planned with optimisation under changing circumstances as the objective. To illustrate the point: a farmer decides whether to plough his land or leave it fallow, whether to use it for rabi or kharif cultivation and the crops to be sown on it, depending on weather and market conditions and the availability of seed. His system of land use is thus flexible. The urban planner, however, tends to assign one particular use to land, into which the bureaucrat locks it, regardless of changing conditions.

Paradoxically, the use, ownership and transfer of land are well documented in village India, where land is fairly well managed, because the man-land symbiosis is still largely undisturbed. The land records system ensures an annual review and revision of the land-use situation and the data base is thus kept up-to-date, and just where planning is a matter of vital importance, there are virtually no land records. There are city surveys, but they are outdated, inadequately informed and quite worthless as a planning tool. For example, this Commission tried to ascertain how much land under actual cultivation has been acquired for or privately converted to urban, non-agricultural use in the last 20 years. No records are available. Neither the Ministry or Urban Development, nor the National Remote Sensing Agency could give this information. City by city, it is possible to longitudinally compare the physical spread, but it is not possible to obtain data about how much of this has occurred by conversion of agricultural land, or the quality of the land thus converted. In other words, a broad analysis of the cost of city spread in terms of diverting land from cyclical use to a built environment is not possible because there is no record of the potential of the land thus converted and its productivity and value under agricultural use. Even in the context of intra-city planning, the lack of such data effectively blocks any attempt to assign uses so that land best suited to growing things is retained under vegetation, whilst marginal land is built upon. In city after city, with Delhi as a good example, barren land is converted into gardens at immense cost, whilst fertile land is smothered under concrete and asphalt”.

Having examined the issue of land in great detail the Commission recommended that in addition to the Survey of India, which may be taken as the mother institution, there should also be a Settlements Survey of India, which would scientifically survey land and classify and suggest the most appropriate uses for different types of land. A separate Directorate of Urban Land Records within the overall umbrella of the office of the Commissioner for Land Records, Survey and Settlement should be set up in every State. On the basis of the data generated an overall land use policy should be framed whereby land is allotted that use for which it is most appropriate. That is simply not done in India so far. In fact land use allocation follows such economic policies as the one for development of backward areas through industry. One has just to fly over Hyderabad to see what this has done to a city which at one time was known for the beauty of its rocky landscape and the water bodies like Hussein Sagar and Himayat Sagar. Whether one flies from the north or from the south one witnesses a huge urban sprawl which has destroyed such beautiful rocky locations as Banjara Hills, Jubilee Hills, Somajiguda, etc. All the agricultural land around Hyderabad has been eaten up. This is because Medak District which adjoins Hyderabad was declared to be backward. Cyberabad, Ramachandrapuram and Pattancheru are the results, with Hyderabad city itself expanding into the so-called backward areas. Had an intervening space of about 100 kilometres been left between Hyderabad and the backward areas Hyderabad would not have expanded so much and independent, thriving townships would have come up in the designated backward areas for the benefit of the residents of the district. Similar is the case with Dharampuri in Tamil Nadu, with the result that the border town of Hosur has now grown into Bangalore and the outreach of Bangalore has expanded because of the concessions made available on the outskirts of the city. Indore, with Dewas to the north and Pithampur in Dhar District to the south is a similar example of urban sprawl promoted by faulty industrialisation policies and, therefore, land use policies.

The problem of land management has to be disaggregated at different levels. The first is the national level. India is one of the very fortunately placed countries in the world in which sixty percent of the land is arable, thirty percent is under forests, grazing or other public use and only ten percent is uncultivable waste land. In China, by contrast, only ten percent of the land is arable, sixty percent is uncultivable waste land and the balance thirty percent is divided between grazing, forests and human settlements. In China expansion can take place into land which does not have an alternate use. In India it has to be planned so that it is forced to divert to land which cannot be cultivated or put to other useful purposes. For this reason at macro level we need a strong, scientifically formulated land use policy which divides land along lines of permissible activity and then assigns land use accordingly.

There is also a meso level dimension which would roughly approximate to the State. Every State provides for restriction on diversion of land from agricultural to nonagricultural use. At the same time it is well known that around cities such diversion takes place, sometimes legally after seeking permission and very often illegally by surreptitious land use change and subsequent regularisation through political pressure, bribery or both. Unauthorised colonies in Delhi are a direct result of such unauthorised, unplanned diversion of land from agricultural to nonagricultural use. If the State fine- tunes the general national level policy of allocating land for appropriate use then illegal diversion could also be checked. How does the State fine-tune land use policy? In Gujarat the two areas most unsuited to agriculture are the Greater and Lesser Rann of Kutch, both of which are deserts whose sands are encrusted with salt as sea water which inundates them during the wet season recedes and leaves the land barren. The other large area which, in a way, is a continuation of the Rann, is the Khar Patti of the Bhal between Bagodara and Limbdi. This area is totally unfit for cultivation or growth of trees. It is a well known fact that the most fertile, well watered part of Gujarat is south Gujarat, that is, the districts of Baruch, Valsad, Navsari and Surat. Central Gujarat, Ahmedabad, Kheda, Mehsana and Baroda districts, is also fertile. It is these districts where the maximum industrialisation and urbanisation is taking place, thus eating into thousands of acres of good, cultivable soil. A sensible industrial policy for Gujarat would be to locate industry in the Khar Patti or in Kutch. One is greatly encouraged to find that the present government of Gujarat is following a deliberate policy of encouraging industry in Kutch, this being one of the few examples of a state government adopting a sensible location policy. We need to create a climate in which within the framework of the National Land Use Policy state governments do detailed planning so that at meso-level we have an appropriate location and land use policy.

Land use planning is equally important at the micro level, which could be the region, city or village. Very often sound land use planning at ground level becomes a victim to the greed of property owners and developers and the cupidity of our politicians and officials. This is particularly true of land on the periphery of our large towns. Whereas Delhi has now expanded exponentially, just thirty-five years ago the 1650 unathorised colonies, with a population of over twenty lakhs, were a direct result of our not being able to plan land use and land management as an integral part of the Master Plan of Delhi. A recent example from Bhopal would further illustrate this point. About twenty-five kilometers from the centre of Bhopal is located village Bhauri, approachable both from the Sehore road which goes west of Bhopal and the Narsingarh road, which goes north. With no thought to consequences government decided to locate the Indian Institute of Science Education and Research (IISER), the School of Planning and Architecture (SPA) and the National Institute of Fashion Technology (NIFT) in Bhauri. In addition, a major police training establishment with all India coverage is also being located in this village. Naturally land values have appreciated in Bhauri and surrounding villages and real estate developers have stepped in. It is estimated that within the next few years a new township with a population of over two lakh will be established, with no thought to any centralised planning. Individual layouts have been cleared but area-wise infrastructure is not even envisaged. This new development lies outside the command of the water supply, sewage and drainage systems of Bhopal. Two lakh people will be left dependent on ground water, already in short supply. The sewage, after perfunctory primary treatment in septic tanks, will be discharged into a nala which drains into the upper reaches of Bhopal’s Upper Lake. All the efforts to protect the Lake from pollution will be set at naught.

I have given these two examples to emphasise the need for a proper land use policy which covers the region, the settlements within the region and the direction in which the region should grow. In other words, within the broad framework of the national land use policy and the state level policy, we need to do detailed planning of regional infrastructure which would allow the settlements located within that region to develop in tandem and without creating the imbalances which can create isolated planned pockets within a blighted region. It is this sort of planning which can then lead to the detailed development plan of a town and fine-tuned zonal planning within the development plan.

India is paying a very heavy price for neither having a proper record of how its land space is being used, nor a broad national policy of how land should be used. Some of the consequences need to be mentioned for a proper understanding of the problem. It is self-evident that in rain fed areas where the health of rivers is directly dependent upon the health of the forests within the catchment because there is no snow to feed the rivers, any national level policy must give very high priority to the conservation and enlargement of the forests in the catchment of all our peninsular rivers. The forests of the upper and middle reaches of the Narmada River are under stress but are still in a reasonably healthy state of conservation. The Narmada is an entirely rain fed river. The gauging stations at Mandla, Hoshangabad and Mortakka show that the dry season flow of the Narmada is between twelve to fourteen percent of the wet season flow. Contrast this with the Bhagirathi (Ganga) at Uttar Kashi and Tehri. Here the dry season flow is six percent of peak season flow, despite the fact that the Ganga emerges from a glacier and is snow fed. There is such mass deforestation in the hills of Tehri and Uttar Kashi that the behaviour of even a snow fed river is less satisfactory than that of a pure rain fed river whose forests are still reasonably healthy. Ultimately it is the forests which are the source of water and it is they which regulate the health of ground water in the plains and also prevent upland erosion. Forests, therefore, must get the highest priority in any national land use planning.

India wants to retain a sustained growth rate of between eight and eight and a half percent per annum. Our mindset is such that the secondary and tertiary sectors are the ones which we have planned to engineer growth. In the process the primary sector, agriculture, is neglected, or else it is presumed that the growth potential of this sector is very little. Agriculture is not only a function of sowing seed and then harvesting the mature crop. Linked with agriculture is irrigation and, consequently, availability of power. Irrigation itself demands storage for flow irrigation and exploitation of ground water for lift irrigation. We have no national policy in this behalf. So far as ground water is concerned we have not been able to have a policy which correlates discharge through lift and recharge of the source of ground water. This has caused a disastrous drop in the water table in areas such as the Punjab and Haryana, where natural aquifers exist and the Malwa region of Madhya Pradesh, where there are very few aquifers and it is only pockets of fossil water which are tapped. As a part of the national land policy we must, therefore, also have a policy relating to water withdrawal and recharge. The State of California in the United States of America does have such a policy. A series of percolation tanks in the hills cause ground water recharge in the central part of the State. Government carefully monitors recharge and regulates drawing of water by volumetric metering and fixing of the water rate, plus a ceiling on the quantum that a user can draw.

Closely connected with land use policy is the correlationship of development activity and conversion of land to that particular use. For example, if a road is to be built land will have to be acquired. If industry is to be established it can be done only by locating it on land. If a new Indian Institute of Technology is to be founded it will need five hundred acres of land. If thermal power is to be generated coal will have to be mined and assigned to the power station and this converts the present land use, largely under forests, to mining which, through excavation, changes the landscape. The national land use policy must take this factor into account so that it accommodates both the thermal power station and the mines that feed it. Here what is needed is a sound policy for restoration of mined areas to a state of nature, a policy followed with great success in the German State of Rhenish—Westphalia, but is not even conceived even as a principle in India. If land is the medium on which human activity takes place, then the national land use policy will have to take into account all such activities. How to optimise land use, how to come up with a rational policy of diversion of land use, how to acquire land for purposes which are critical to the development process would all emanate from a national land use policy. Today for want of such a policy ministries such as Rural Development and Forests and Environment pull in one direction, ministries such as Agriculture and Industry pull in another and activists who are trying to establish their own credibility pull in every direction imaginable, leading to complete chaos. Economic planning is not a function of individual ministries taking decisions, almost always contradictory of each other, but is rather a holistic exercise in which the national land use policy plays a vital role in determining land use and then assigning to land the function which will promote overall economic development without compromising on issues of environmental protection.

Is there any hope that we shall get a national land use policy? In fact the answer is a string of question marks because at present there is no evidence that a holistic land use policy is even thought of by our politicians, officials and planners. As is our wont it is ad hocism which governs and will continue to govern every issue relating to land use.

Is Federalism in Danger Through Central Activism?

Dr. M.N. Buch

Visiting Fellow, VIF

Article One of the Constitution makes India a Union of States. The words of the Article are “India, that is, Bharat, shall be a Union of States”, The key words are, ‘India’, ‘Bharat’, ‘Union’ and ‘States’. 

Adi Sankara brought us the philosophy of ‘advaitya’, or indivisible, in contrast with ‘dvaitya’ or dual, duality. The Constitution by calling India that is Bharat perhaps recognises duality in all thing. Of course this is dabbling in the field of the metaphysical, but the fact is that in our polity there are almost always two facets, that which is stated and that which is real.

To return to Article One, in the Union that is India if there are no States there is no Union. In the United States of America thirteen separate British American Colonies came together to jointly fight the war of Independence. For this purpose they formed an Union, a federation in which the Colonies voluntarily surrendered some of their powers to the Union while jealously guarding what they did not surrender. Under the U.S. Constitution that which is not surrendered to the Union belongs to the States. Residuary powers in the U.S. vest in the States. In India the Seventh Schedule of the Constitution has three Lists of legislative competency. List One is the Union List in which Parliament has exclusive legislative jurisdiction; List Two is the State List in which the State Legislature has, exclusive jurisdiction; List Three is the Concurrent List in which both Parliament and the State Legislatures have jurisdiction, with the laws of Parliament taking precedence . Under Article 248 all residuary powers vest in the Union. 

The India Union really consists of the Provinces of British India, not quite colonies but also not quite States as understood in the present federal context. Their origin lies in British rule as ultimately codified by the Government of India Act 1935. Many of the features of that Act are carried over to our Constitution --- in fact the Act is the basic frame around which the Constitution is woven. It is not as if the Provinces came together to form a Union, for which purpose they surrendered some of their powers to the federation. The division of powers was already done by the Government of India Act, 1935, in section 95 of which one finds an echo of Article 356. Or is it the other way round, with Article 356 echoing section 95 of the Act? Prior to 1935 India was an Unitary State with several federal features, not because federalism was the ruling philosophy but because India was too large to be governed without a high degree of decentralisation of powers and local autonomy. It is in 1935 that this autonomy was enshrined in the Act which was then our Constitution or Basic Law. This has been carried forward, fine tuned and enshrined in our Constitution which has also accommodated the princely states which merged into the Union.

The word federalism does not find any mention at all in the Constitution, except in the Article containing definitions, Article 366, sub-clause (11) of which refers to the Federal Court as constituted under the Government of India. Act 1935 and Article 374, which provides for judges of the Federal Court to be judges of the Supreme Court and for all cases before that court to stand transferred to the Supreme Court. Everywhere the word used is ‘Union’. Is it, therefore, a question of semantics only and we really are a federation. Or is it that we are a Union with federal features without being a true federation?

The Seventh Schedule of the Constitution provides in the Union, State and Concurrent Lists the exclusive jurisdiction of Parliament, the exclusive jurisdiction of State Legislatures and the concurrent jurisdiction of both. List Two of the Seventh Schedule gives autonomy, one can argue sovereignty to the States in the subjects enumerated in the list. Under Article 162 the executive power of the State extends to all matters for which the State Legislature is competent to make laws. Exclusive jurisdiction mandated by the Constitution does give India a strong federal character and, therefore, India can be deemed to be a federation. But it is a federation with very strong centripetal force in which the Centre has a larger role than the States. All federations have this to a greater or lesser degree and even in the United States the exigencies of war, the demands of national security, economic considerations, especially at a time of crisis and the striving for equal opportunity and civil rights have led to increasing federal intervention and enlargement of the role of the federal government. As the world becomes more complex, as modern transport and communications, information technology shrink distances the demand for centralised decision making increases. It is here that in a federation collective decision making through consultation and knowledge sharing has to coexist within decentralised implementation of decisions and an increasing partnership between the Centre, the States, Local Government and the people all become virtually important. A successful federation is one where this is achieved.

As already stated India is a highly centripetal federation. Under Article 312 we have All India Services constituted by the Centre, whose officers hold all the senior posts in the Centre and the States. Our judiciary is not divided into State Judges trying cases under State laws and Federal Judges trying cases under federal laws. Right from the court of first instance, civil or criminal, right upto the Supreme Court, all magistrates and judges have jurisdiction to try cases under any law in force in India, State or Federal. The judiciary is a unified hierarchy with the Supreme Court at the Apex. The control over and audit of the funds and accounts of the Central, State and Local Government vest in a single Comptroller and Auditor General, just as conduct of Parliamentary and State Legislature elections is the responsibility of the Election Commission.

The Centre has other levers to asset its superiority over the State, of which finance is a very important one. Under the Constitution, List 1 of the Seventh Schedule enumerates the taxation powers of the Centre. Entries 82 to 92B give the taxation powers of the Centre and these include income tax, custom duties, excise duties on tobacco and goods manufactured or produced in India, corporation tax, taxes on capital value on assets, estate duty on property, terminal tax on goods and passengers carried by rail, sea or air, taxes on stock exchange transactions, taxes on advertisements in newspapers, taxes on sale and purchase of goods in the course of interstate trade, etc. By contrast the States have the power to impose land revenue, taxes on agricultural income, taxes and duties relating to agricultural land, property tax, excise duties on alcoholic liquors, opium and narcotic drugs, electricity tax and duties, taxes on entry of goods, taxes on vehicles subject to concurrent powers vested in Parliament under Entry 35 of List 3, entertainment tax, capitation tax and rates and stamp duty. With a new VAT and GST regime in the offing the discretion to levy taxes will be further reduced. No doubt Part XII of the Constitution in Articles 268, 269,270, 271 and 272 does provide for distribution of tax revenue between the Union and the States and under Article 280 it is mandatory to constitute a quinquennial Finance Commission. But how much of central taxes will form part of the divisible pool is limited by Article 271 and, therefore, if income tax rates are not increased and instead surcharges are imposed, the State will get no share of this revenue. In other words, if the Centre decides that some revenue should be withheld from the States it can do so and the Finance Commission notwithstanding, the States can do nothing about it. 

Another financial lever available to the Centre is the Five-Year Plan and the Annual Plan. The size of the State Plan is very largely dependent on what the State can raise by way of resources, but by withholding central grants or downplaying sectoral requirements the Planning Commission can definitely influence the size of the State Plan. When we add to this the huge sums of money available from the Centre under schemes such as the National Rural Employment Guarantee Scheme (NREGS) and the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) one would get some idea of how the Centre can manipulate things in favour of a State whose government is friendly to the Centre and how it can harass a State whose government is unfriendly. Clearly the financial equations are heavily weighted in favour of the Centre. In a federation of equality the financial arrangement would be such that the Centre can neither discriminate against, nor in favour of any State. This is not the position in India, which is a major complaint of the non UPA ruled States in the country at present.

There are large numbers of irritants which now seem to be plaguing Centre-State relations. During Nehru’s time there was homogeneity because the same party ruled both the States and the Centre. In Indira Gandhi’s time, thanks to her basically imperious nature and centralisation of powers in the Prime Minister the Centre was totally supreme, State Governors were changed at will and state governments superseded whenever they were found to be inconvenient and the writ of the Centre was supreme and at no time more than during the Emergency. The States were virtually reduced to administrative units which had to obey the orders of the superior government, the Government of India. Federalism virtually died under Indira Gandhi, as did a number of other institutions which are vital for the working of a democracy. On the use of Article 356 the Supreme Court did put a number of restrictions in the S.R. Bommai case, but the real problem is that if the Centre does use Article 356 and destablises a State Government, by the time judicial remedy can begin to take effect the damage has already been done .Paradoxically it is only when the Centre is weak and the ruling coalition is unstable that the States are relatively safe from whimsical central intervention. A weak Centre is not good for the country because decision making at the national level virtually ceases. Therefore, safeguarding federalism through a weak Centre is far worse than the disease itself. Ideally the constitutional position of a strong Centre presiding over a centripetal policy, but with State Governments which are stable and powerful and act as a check on central whimsicality is the best constitutional and administrative arrangement for India. This is the goal towards which one must progress. 

In the United States any law which affects the interests of the States must have the support of the Senate, which is the guardian of the rights of the States in the federal set up. Regardless of the size of the State it sends two representatives to the Senate. In India the Council of States has 238 representatives of States and Union Territories but because the number of members from each State is dependent on the size of the State Assembly, the more populous States have more number of members and the less populous States are marginalised. The method of election being indirect and the total electorate for each State being the Legislature of the State, the decision of the Council of the States is a reflection of the political equation within each State Assembly. The members, therefore, are representatives of political parties rather than of the State from which they are elected. To that extent there is no difference in the working of the House of People and the Council of States because members of both Houses answer to a whip. That is certainly not true of the Congress of the United States of America. The Council of States has no veto powers in the matter of legislation even if it adversely affects the interests of a State. It is only under Article 249 that Parliament acquires the powers to legislate with respect to a matter in the State List in the national interest, provided that the Council of States so resolves. Because members of the Council of States answer a whip the members of that House will, even in a matter governed by Article 249, vote not in the interest of the State or States but as per the diktat of the ruling party. At the level of Parliament, therefore, the States have no guardians to safeguard their interests and, therefore, there is a growing distrust between State Governments, Central Government and legislation enacted by Parliament. The result is that many State Governments resolve not to enforce a law of Parliament. For example in the matter of the Food Safety and Standards Act both Madhya Pradesh and West Bengal have said that they would not strictly enforce this law. Only a weak Centre can tolerate this.

When it comes to matters of national security the situation becomes more serious. Every time when a break-down of law and order takes place State Governments do go running to the Centre for help. The Naxalite movement which has seriously affected the administration of about 160 districts in the country is one example where the affected States are clamouring for central assistance and central forces. When terrorists struck Bombay in 2008 the Maharashtra Government went running for help to the Centre. When natural calamities strike the States want central intervention. At that time no one cries about such intervention weakening federalism. However, when the Centre decides to set up a National Counter Terrorism Centre and tries to arm it with the authority to intervene immediately on receipt of credible information and to neutralise a terrorist attack which is building up, the States cry foul. It is a fact that police is entirely a State subject and police action is the responsibility of the State Governments. With the police throughout India at senior levels being manned by the very IPS officers who also serve the Central Government it is strange that the Centre obviously does not trust the State police and wants to retain powers of direct intervention. This is strongly resented by the States. By failing to take States into confidence and by trying to push through certain measures which have been initiated at central level the Centre has aggravated the situation and created a bogey of federalism in danger versus national integrity in danger. Under Article 355 it is the duty of the Union to protect the States against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Surely the Centre must have the wherewithals to perform its duty under Article 355. We do need a serious dialogue between the Centre and the States on Article 355 versus Entries 1 and 2 of List 2 of the Seventh Schedule of the Constitution (Police) and to see to what extent the power to strike against terrorists on receipt of credible information is available to a Central authority without this being construed as an attack on the rights of the States. It is in this behalf that the Interstate Council must be activated so that all matters relating to Centre-State relationships can viewed through the prism of public interest and solutions arrived at which would enable the Centre to discharge its constitutional obligations without the States feeling that this is an encroachment on their rights. In other words, what this federation needs is a clear-cut understanding of what federalism means under Indian circumstances and how we can create that machinery which ensures smooth relations between the Centre and States without conflict.

Broadly speaking it is not federalism which is under attack but rather individual State Governments and the Centre itself which are under threat because the two opposing parties will not talk to each other, will not create an environment of trust and will insist on trying to score brownie points against each other. In case there is no consensus the Centre must use its authority to decide an issue and then ensure that all States fall in line. Here defiance by one or more States should not be tolerated and, if need be, coercive powers be used to call recalcitrant States to account. Right now federalism is not in danger through Central activism. The fact is that the Centre, by failing to assert itself is failing in its duty and this can be fatal because as satraps break away the Centre itself would wither away. What price then this Union of States?