The Hindu Editorial Analysis- 21st January, 2022 | Current Affairs: Daily, Weekly & Monthly - CLAT PDF Download

1. Drop the IAS Cadre Rules Amendments: States are Right in Perceiving the Planned Amendments to Rule 6(1) to be an Infringement of their Rights

Page 6/Editorial

GS 2- Issues & challenges pertaining to the federal structure

Context

• The Central Government has proposed four amendments to Rule 6(1) of the IAS (Cadre) Rules, 1954 dealing with deputation in December.
• The proposed amendments seek to change the rules for central deputation of IAS officers from different states.
• It has sought the views of State governments before January 25, 2022. Several states like West Bengal and Kerala have opposed the move.
• The existing Rule 6(1) states that a cadre officer may be deputed to the Central Government (or to another State or a PSU) only with the concurrence of the State Government concerned. However, it has a proviso which states that in case of any disagreement, the matter shall be decided by the Central Government.
• The DoPT is the cadre controlling authority of IAS officers. Similar letters have been sent for deputation of Indian Police Service and Indian Forest Service Officers (IFoS) after approval from the Ministry of Home Affairs (MHA) and the Environment Ministry respectively.

History and Importance of All India Services

• It was Sardar Patel who had championed the creation of the IAS and the IPS as “All India Services” (AIS) whose members would be recruited and appointed by the Centre and allotted to various States, and who could serve both under the State and the Centre.
  • He considered the AIS essential to knit the administrative framework of a vast and diverse country into an integrated whole and to provide a connecting link between implementation at the field level and policymaking at the top.
  • Speaking to the Constituent Assembly on October 10, 1949, Patel said, “The Union will go, you will not have a united India if you have not a good All India Service which has the independence to speak out its mind, which has a sense of security....”
• Healthy conventions earlier: AIS officers are made available for central deputation through a consultative process involving the Centre, the States and the officers concerned. In the past, certain healthy conventions were generally followed.
  • No officer was sent on central deputation against his/her own will.
  • Every year, the States would prepare an “offer list” of officers who had opted for central deputation without arbitrarily withholding any names.
  • The Centre would choose officers only from among those “on offer” from the States.
  • And, the States would relieve the officers picked up by the Centre at the earliest.
• When politics intruded: Unfortunately, both the Centre and the States have at times flouted these healthy conventions for political considerations.
• Intrusion from the Centre:
  • In July 2001, the Centre unilaterally “placed at its disposal” the services of three IPS officers of Tamil Nadu cadre.
  • In December 2020, the Centre did the same in respect of three IPS officers of West Bengal cadre.
  • In May 2021, the Centre unilaterally issued orders for the central deputation of the Chief Secretary of West Bengal just before his last day in service. In all these cases, the States concerned refused to relieve the officers.
• Intrusion from the states: Some States used to vindictively withhold the names of some of the officers who had opted for central deputation or delay their relief after they were picked up by the Centre.
• In 2014, A senior IPS officer who was not allowed to join the CBI despite earlier clearance and was suspended by the Government of Tamil Nadu in May 2014 when she relieved herself from the State pursuant to the Centre’s direction.

The Existing Rules

• Rule 3: Constitution of Cadres -
  • 3(1) There shall be constituted for each State or group of States an Indian Administrative Service Cadre.
  • 3(2) The Cadre so constituted for a State or a group of States is hereinafter referred to as a ‘State Cadre’ or, as the case may be, a ‘Joint Cadre’.
• Rule 4: Strength of Cadres-
  • 4(1) The strength and composition of each of the cadres constituted under rule 3 shall be determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these rules.
• Deputation of a Cadre officer(Rule 6): A cadre officer may, with the concurrence of the State Governments concerned and the Central Government, be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government or by another State Government.
  • Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.

The Proposed changes:  Four amendments are proposed to Rule 6.

• If the State government delays posting a State cadre officer to the Centre and does not give effect to the Central government’s decision within the specified time, “the officer shall stand relieved from cadre from the date as may be specified by the Central government.” Presently, officers have to get a no-objection clearance from the State government for Central deputation.
• The Centre will decide the actual number of officers to be deputed to the Central government in consultation with the State and the latter should make eligible the names of such officers. According to existing norms, States have to depute the All India Services (AIS) officers, including the Indian Police Service (IPS) officers, to the Central government offices and at any point it cannot be more than 40% of the total cadre strength.
• In case of any disagreement between the Centre and the State, the matter shall be decided by the Central government and the State shall give effect to the decision of the Centre “within a specified time.”
• In specific situation where services of cadre officers are required by the Central government in “public interest” the State shall give effect to its decisions within a specified time.

Two of the four Proposed Amendments are Disconcerting.

• A new proviso making it mandatory for the State government to provide a certain fixed number of IAS officers for central deputation every year.
  • This more or less compels a State government to offer IAS officers for central deputation even when these officers themselves may not wish to go on central deputation.
  • Poor working conditions in junior-level posts, an opaque and arbitrary system of empanelment for senior-level posts, and lack of security of tenure at all levels are the real reasons for the shortage of IAS officers, which the Centre should address.
  • With the Government of India itself enthusiastically promoting lateral entry to posts in the Centre and providing an increased share of central deputation posts to the central services, there is no need to push unwilling IAS officers on central deputation.
• other is a proviso that requires the State government to release such officers whose services may be sought by the Central Government in specific situations.
  • Based on experiences of the recent past, State governments have a justified apprehension that this proviso may be misused for political considerations.
  • What if the Centre unilaterally places at its disposal the services of the Chief Secretary, Principal Secretary to the Chief Minister and other key officers of a State ruled by a rival party or deputes them to other States?

Other Long-Term Damage

• Might lead to Confidence in governance: The contemplated changes have grave implications for the independence, security and morale of IAS officers.
• Reduction of IAS in the long term: If States begin to doubt the loyalty of IAS officers, they are likely to reduce the number of IAS cadre posts and also their annual intake of IAS officers. They may prefer officers of the State Civil Services to handle as many posts as possible.
• In course of time, the IAS will lose its sheen, and the best and the brightest candidates will no longer opt for the IAS as a career. Short-sighted decisions can do long-term damage to the polity.

Way Forward - Think cooperative federalism

• In the words of jurist Nani Palkhivala, “A national consensus should clearly remind the Centre that it has not inherited the Viceroy’s mantle of paramountcy... The Centre would have no moral authority to govern unless it displays a sense of constitutional morality, particularly a sense of justice and fairness towards the States”.
• In S.R. Bommai vs Union of India (1994), the Supreme Court held that “States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre”.
• In a federal setup, it is inevitable that differences and disputes would arise between the Centre and the States. But all such quarrels should be resolved in the spirit of cooperative federalism and keeping the larger national interest in mind.

2. The Question of OBC Reservation in Local Bodies

Text & Context - I
GS 2: Laws, Schemes for vulnerable sections

Context: The apex court’s latest order in Rahul Ramesh Wagh v. State of Maharashtra &Ors. makes it mandatory that the principles laid down by the Supreme Court for providing reservation to OBCs in local bodies shall be scrupulously followed across the country.

• The latest order arises out of the challenge made to the ordinance promulgated on the teeth of the Supreme Court judgments by the Governor of Maharashtra to conduct the local body elections by providing 27% reservation to OBCs.
• Reservation to Other Backward Classes (OBCs) in local body elections sans empirical base can no more be sustainable in law.

The Constitution Bench Decision

In the five-judge Constitution Bench decision in K. Krishnamurthy (Dr.) v. Union of India (2010), the Supreme Court had interpreted Article 243D(6) and Article 243T(6), which permit reservation by enactment of law for backward classes in panchayat and municipal bodies respectively, to hold that barriers to political participation are not the same as that of the barriers that limit access to education and employment.

• However, for creating a level playing field, reservation may be desirable as mandated by the aforementioned Articles which provide a separate constitutional basis for reservation, as distinct from what are conceived under Article 15 (4) and Article 16 (4) which form the basis for reservation in education and employment.
• Though reservation to local bodies is permissible, the top court declared that the same is subject to empirical finding of backwardness in relation to local bodies as fulfilled through the three tests as follows:
  1. “To set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State;
  2. To specify the proportion of reservation required to be provisioned local body-wise in light of recommendations of the Commission, so as not to fall foul of overbreadth;
  3. and in any case such reservation shall not exceed aggregate of 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.” The 50% ceiling specifically relied on the ratio of the historic Indra Sawhney judgment (1992).
• The 2010 judgment was not acted upon and the constitutionality of the enacted reservation was challenged. This resulted in the 2021 judgment of a three-judge Bench of the Supreme Court.

Vikas Krishnarao Gawali v. State of Maharashtra &Ors. (2021)

• In the above case, the Supreme Court read down the provision of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, which mandated for 27% reservation to OBCs in local bodies.
• The court observed that the reservation for OBCs was just a “statutory dispensation to be provided by the State legislations” and is different from the “constitutional” provisions which mandate reservation to the Scheduled Castes and Tribes (SC/ST).
• While insisting on the triple test, the court observed that the reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed 50% of the total seats reserved in favour of SCs/STs/OBCs taken together.
• The Supreme Court quashed notifications issued by the Maharashtra Election Commission, which provided more than 50% reservation to OBCs and SC/STs in some local bodies. However, the political decision was to take the usual route of ordinance to overcome an adverse judicial decision.

The Wingless Ordinance

• Maharashtra had constituted a Commission to ascertain the backwardness of OBCs in June 2021.
• But without waiting for an empirical report, as mandated by the court, an ordinance was promulgated to amend the Maharashtra Zilla Parishads and Panchayat Samitis Act and the Maharashtra Village Panchayat Act so as to conduct local body elections while ensuring OBC reservation.
• Problems with the ordinance:
  • Though the ordinance was portrayed to be in compliance with the order of the apex court without breaching the 50% ceiling as mandated by the triple test, other parameters had been transgressed.
  • It was challenged before the Bombay High Court; but the election process was not stalled, citing which the petitioner reached the Supreme Court by filing appeal by special leave and the election process qua the reserved seats was stayed.
  • The OBC reservation and notification for the local body election in Madhya Pradesh also were deemed to fall foul of the Supreme Court order, as was found by the apex court, on challenge.
•  Supreme Court directed the re-notification of the reserved seats as belonging to general category in both the States on the basis of which the election process may proceed.

Legislative Resolve

• 23, the Madhya Pradesh Legislative Assembly passed a resolution to keep the local body elections without OBC reservation at abeyance.
• A political cue from Madhya Pradesh, the Maharashtra Legislative Assembly also passed a resolution to stall the local body elections in the wake of the judicial interference.

Judicial Response

• The last order of the apex court records that “In case, the State or Union Territory is not in a position to fulfil the triple test requirement and the election to any of its local body cannot be postponed beyond the statutory period, the (State) Election Commission (concerned) ought to notify proportionate seats as open category seats, and proceed with the elections of the local bodies.”
• The governments stuck to the law as mandated by Article 141 of the Constitution, this quandary wouldn’t have arisen. Rule of law is not just a set of letters, but it has to be followed in spirit.