SCOURGE OF COOPERATIVE FEDERALISM IN CONTEMPORARY INDIA

INTRODUCTION

India is a secular and democratic country having a diverse set of cultures, religions, language, and many more, and keeping this diversity into consideration, the framers of the Constitution drafted the most voluminous Constitution of the World which enshrined to India a Federal form of Government with Unitary Features, thus making it a quasi-federal nation. Since Article 1 of the Indian Constitution states that “India that is Bharat, shall be a Union of States”[i], it holds immense significance as India is a Union of States wherein, there is ‘Indestructible Union of the destructible States’ thus signifying a sense of cohesiveness and mutual cooperation among the States and the Union. So, in the pursuit of mutual cooperation, coordination, and the decentralization of powers, the ‘Federation’ plays a key role in a democratic country. In this article, I will throw some light on Cooperative Federalism along with the Scourges on Cooperative Federalism with the center of the debate being the discussion on the advisory changes in the IAS Cadre Rules.

FEDERALISM AND COOPERATIVE FEDERALISM

Federation has been derived from the Latin word ‘Foedus’ which means ‘Agreement, Pact or Treaty’. Thus, Federation is the division of powers between the Union and the States/Provinces wherein, powers, duties, and responsibilities are decentralized among the smaller entities of the government machinery of the nation as a result of which, the Union at the helm works independently on the National Interests whereas the State and the Local Authorities work independently on Regional Interests, thus assuaging administrative burden on both the States and the Union.

Federation works on the principle of Decentralisation of Powers and holds certain features which are as follows:

·       WRITTEN FORM OF CONSTITUTION- In a federal country, there always remains a written form of Constitution for fostering National Conscience and a sense of clarity wherein, the Constitution of a Subcontinent is the fundamental law of the land and is supreme over all the types of machinery of a nation. E.g- In India, the Constitution of India is considered supreme and is binding on all the entities of the nation.

·       DIVISION OF POWERS- A nation that follows the federal form of government is guided by the division of powers between the Union and the States, lessening the burden of the administrative machinery of both the divisions. E.g- Under Schedule 7 of the Indian Constitution, there are three types of lists- Union, State, and Concurrent List which divides the powers and the responsibilities of the Union and the States.

·       GOVERNMENT AT TWO LEVELS- The Federal form of government envisions the government at two levels- Union at the higher level and the States as well as Local Authorities at the lower level. E.g- In India, there is a Central Government at the helm of the Nation, State Government for the States, and Local Authorities like Municipalities and the Panchayats for different regions.

·       INDEPENDENT AND FEARLESS FORM OF JUDICIARY- A federal form of government ensures that an independent form of the judicial system happens to withstand to interpret the law, check and balance the 3 organs of the government and uphold the rights of the citizens as well as the disadvantaged sections of the society. E.g- In India, the Supreme Court and the High Courts are the courts of the land wherein, their administrative and judicial functions are performed within the ambit of the judiciary and independent of the incumbent government.

·       RIGID FORM AND AMENDMENT PROCESS OF THE CONSTITUTION-The federal form of government also ensures that the amendment process of the Constitution remains rigid so with the ultimate motive ofnot to fabricate the provisions of it every now and then, as the Constitution remains the fundamental and the natural law of the land. Eg- In India, according to Article 368 of the Indian Constitution, the amendment process is so rigid that the assent of 2/3^rdmembers present and voting as well as the assent of half of the State Legislatures is needed for the amendment of a certain provision to succeed.

Thus through these features, Federalism plays a key role in any form of governmental machinery making the governmental machinery less burdening, decentralized, and resilient to regional aspirations.

Cooperative Federalism, being a subset of Federalism, is the working of the Center and States with mutual cooperation and with harmonious construction, to bring out the best results for inclusive welfare and growth of the nation as well as its regions in many aspects be it Social, Economical, Financial, etc. The term ‘Cooperative Federalism’ was emphasized in the Indian Subcontinent by the case of the State of Rajasthan v. Union of India.[ii]

CONSTITUTIONAL PROVISIONS ON COOPERATIVE FEDERALISM-As far as India is concerned, ‘Cooperative Federalism’ is not only found in the Indian Judgments but is also found in the Indian Constitution itself where a plethora of the provisions of the Indian Constitution bring out the notion of ‘Cooperative Federalism’ between the Centre and the States. Article 245 of the Indian Constitution talks about the legislative powers of the Centre and the States and their jurisdiction and states, “Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”[iii]

Article 246of the Indian Constitution talks about the powers of the Centre to make laws on matters mentioned in the ‘Union List’ whereas the States have the power to make laws on matters mentioned in the ‘State List’ and also, the Center and the States have the power concurrently to make laws on matters mentioned in the ‘Concurrent List’.[iv]Article 249 of the Indian Constitution also cherishes the idea of ‘Cooperative Federalism’ where it states that when the Rajya Sabha by having a consent of 2/3^rd majority that it is expedient in the national interest to make laws on matters mentioned in State List, then it may do so.[v]

Article 256 of the Indian Constitution talks about the parity of relations between the Centre and the States and states, “The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.”[vi]Likewise, the Indian Constitution while depicting that the Centre is vested with broad responsibilities, so it discusses such responsibilities in Article 355 and states, “It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.”[vii]

Not only on the legislative front but the Indian Constitution alsoenshrines some provisions dispute related matters to be solved amicably through the coordination between the Centre and the States and Article 262 of the Indian Constitution states, “(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).”[viii]Similarly in financial aspects, Article 282 of the Indian Constitution states, “The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws.”[ix]

One of the most classical examples which can be thought of as far as ‘Cooperative Federalism’ is concerned is the ‘Goods and Services Tax’ (GST), introduced by the 101^st Amendment Act, 2016[x]which centralized the tax pool of the States in the Union’s lot barring Alcohol, Petroleum Products, Tobacco and others. According to Article 279A of the Indian Constitution, there would be a GST Council established which would consist of the Union Finance Minister, Minister of State for Finance as well as the Ministers of Finance in each State Government and the duty of the Council would be to ascertain the slabs of taxes to be attributed to which goods and commodities, divisibility of surcharges and cesses, etc.[xi]Thus, Article 279A also proves to be a classic example of the ‘Cooperative Federalism’ with the inclusion of Union and State Finance Ministers for better productivity with better inclusion of diversified minds, and better outcomes.

SCOURGES ON COOPERATIVE FEDERALISM

With the evolution of society and the National Political Agenda, the spirit of Cooperative Federalism has faced a brunt owing to various issues in different aspects. When the tussle between the Centre and the States starts emerging to an all-time high, the very notion of ‘Cooperative Federalism’ transforms into ‘Competitive Federalism’ and thus, the ultimate output of such a confrontation becomes cumbersome to the citizens as many policies and programs get delayed in its implementation.

·       GST COMPENSATION CESS

GST, the comprehensive taxation system introduced in 2016 by a Constitutional Amendment Act, was brought into implementation just with a notion that all the divisible tax pools would be consummated in a single lot which will increase the revenue of the center due to its direct control on the institutional taxing policy and would also help in bringing an easy and customer friendly taxation measure with a consolidated and a comprehensive taxation provisions. But the idea faced the brunt of the competition between the Centre and the States when the revenue collection made by the loss of same revenue from the side of the States happened not to be recompensated by the Center under the GST Compensation Cess Policy.

GST Compensation Cess is a fixed tenure for repayment of tax revenues which has been fixed for 5 years till 2022, and the Centre under this policy was to compensate the loss of the tax revenues which was to come in the States pool but got diverted into the Centre’s fiscal account. Even before the advent of the Covid-19 Pandemic caused havoc on the fiscal conditions of the States, it was reported that the compensation cess collection increased on a year-to-year basis during 2017-18 and 2018-19, but the adequate compensation even upon an increase in the collection was not made,[xii]thus disturbing the spirit of ‘Cooperative Federalism’ since the States are largely dependent on the Centre for financial assistance and after the wroth of the Pandemic, the situation has become worse.

·       INTER-STATE RIVER DISPUTES

Article 262 of the Indian Constitution talks about the Inter-State River Council instituted by the Parliament for amicable settlement of river disputes, but many river issues like the Cauvery River Issue, Narmada River Issue, etc. have not been solved till date even when the Council had been institutionalized for these issues and yet the issue has not been resolved, thus destroying the fabric of ‘Cooperative Federalism’.

·       MGNREGA

Mahatma Gandhi National Rural Employment and Guarantee Act, 2005 and its subsidiary MGNREGA Scheme was implemented in 2005 to provide 100 days of wage employment to at least 1 member of the rural households for unskilled manual work. The basic intention of this Scheme is to ensure the notion of ‘Right to Work’ and works towards ensuring equitable access through wage guarantee work which works on the large assistance of the Centre but employment being guaranteed in different regions of the States, reflecting the idea of ‘Cooperative Federalism’. But the same scheme has become susceptible to the financial implications in light of the static allocation of funds when at the same time, the fund allocation for the MGNREGA Scheme in Budget 2022-23 has been decreased by 25%, thus ravaging the idea of ‘Cooperative Federalism’.

·       IAS CADRE RULES, 1954

Finally coming down to the central point of debate of this Article, the IAS Cadre Rules, 1954 has to seem some proposed amendments made out by the Central Government to curb the autonomy of the States in referring the All India Service (AIS) Officers to the Centre for their deputation. Before moving to the concerned amendments proposed for the IAS Cadre Rules, 1954, let’s first discuss the background of the concerned provision of the Cadre Rules.

BACKGROUND

Apart from the atrocities committed by the British Empire, one of their contributions to Independent India was the institutionalization of the Imperial Civil Services (ICS) and its transformation by the UPSC to the Indian Administrative Service (IAS). Basically, there are 3 All India Services- 1) Indian Administrative Service (IAS)

 2) Indian Police Service (IPS)

 3) Indian Forest Service (IFS)

IAS Officers have their cadres allotted by the Department of Personnel and Training (DOPT), IPS Officers by the Home Ministry, and IFS Officers by the Environment Ministry. As far as IAS Officers are concerned, their deputation is done under the Indian Administrative Services (IAS) (Cadre) Rules, 1954.[xiii]The Deputation of IAS Officers is done under Rule 6(1) of the IAS (Cadre) Rules, 1954 which reads as under, “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.”[xiv]

In toto, the IAS Officers are deputed by the Centre under the Department of Personnel and Training (DOPT) and are recruited in Cadres of different States, thereby depicting the federal nature of the IAS Officers where they can serve the Centre as well as the States.

Generally, the Central Government issues an ‘offer list’ every year of the 3 All India Service Officers (AIS) which works according to the Central Deputation Reserve (CDR) with a sanctioned strength of 40% of the total cadre strength. When there remains a tussle between the center and the states regarding the central deputation of the officers, the States have the autonomy to reject the demand of the Central Government and also, there is a note of caution that is mentioned in Rule 6(2) that the deputation cannot happen without the explicit consent of the officer itself.

PROPOSED AMENDMENTS

Since there always remains a political scuffle between the center and the states when the State on consultation disagrees to transfer the officer to the central deputation, the center has proposed the contended amendments before the States to fill the vacuum in the Central Administrative pool which is lagging behind from many years.

Firstly, if the State government delays posting a State cadre officer to the Centre anddoes 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. Secondly, 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.

Thirdly, 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. Fourthly, in specific situations 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.[xv]

The Department of Personnel and Training came up with these amendments with the ultimate motive to fill the plethora of vacant seats that are lying vacant in the Central Government’s administrative wing due to the scuffle between the center and the states in light of the clause of consultation between them.

CONCERNS

Though the Central Government has come up with these amendments for a boonful cause of filling the vacant seats, the amendments because of their arbitrary nature subsist with a list of concerns that nullifies the positive effects of these amendments-

Firstly, the Center has arbitrarily disrobed the States of the consulting power through which, the Center used to depute the officers at the Central level’s Administrative Wing. Going with the current legislation, the State has the power to refuse the deputation of any All India Officer when the State’s concurrence according to Rule 6(1) is needed but with the proposed changes, the State will no more be left with any autonomy to reject the proposal and will have to concur with the Central Government’s demand as and when the need arises and ‘within a specified time’.

Secondly, the proposed amendments will ward off the State’s political control over the bureaucracy. Bureaucracy is the pillar of any nation that binds the Regional Administration and plays a pivotal role in policy formulation and program implementation and when the same institution is given a centralized flavor, it will hamper effective disposal of services and would ultimately weaken the administrative setup.

Thirdly, and the most important concern, it will hamper the spirit of cooperative federalism. As stated above, cooperative federalism ensures that the Centre and the States work in cooperation and in a well-synchronized manner, and ultimately, it would lead to the development of the nation. On the contrary, when the Deputation can only be done by the Centre with the States having no say in it, it will lead to a political scuffle between the Center and the States due to which, the administrative setup will remain at the backlog and ultimately, the citizens would be the sufferer. Also, due to this, there will remain a situation that the political shadow will always be inflicted on Bureaucracy which in turn will lead to corruption.

SUGGESTIONS

As the number of IAS officers on Central Deputation Reserve (CDR) has gone down from 309 in 2011 to 223 as ofthe date and the percentage of CDR utilization has gone down from 25 percent in 2011 to 18 percent, the fulfillment of vacancies according to the CDR pool is the need of the hour but doing it with the above-mentionedamendments can lead to serious implications. Instead, some other measures can be taken into consideration which can ensure the spirit of cooperative federalism and at the same time, can fulfill the central reserve pool.

Firstly, instead of disrobing the state of its consultative powers, the Center can come up with a proposal that the IAS Officers in lieu of their service, will have to mandatorily serve in the Central Government for 2-4 years in order to secure the highest-level position (Chief Secretarial Post) in the State Bureaucracy. This model will work in a two-way process wherein, the officers will have their deputation at the central level, the problem of vacancies in the State will be assuaged to a great extent and the officers will also be provided a State to serve till their retirement because the IAS Officers aspire for longer service in the States for want of better perks and benefits.

Secondly, a model should be created by the stakeholders wherein, the seats sanctioned for the deputation of IAS officers should be increased artificially and in a phased manner as in a prototype model and then, the same should be transformed into real test model which will ultimately increase the deputation of officers for efficient and inclusive administration.

Such measures can be undertaken as a prototype model in a phased manner in order to know the nitty gritty of the root causes that creates the vacancies at the Central level and assuage such concerns in a time bound manner, which can ultimately facilitate the cause of ‘Cooperative Federalism’.

CONCLUSION

There are many aspects in India which attract the attention of the stakeholders and many a times, hamper the spirit of ‘Cooperative Federalism’ and among these aspects, the amendments related to IAS Deputation is the centre of the debate. Even if the Center has come up with such amendments with the ulterior motive to fulfil the vacancies of the IAS officers at the Central level, the need should happen to be fulfilled in a way that it does not erase the spirit of ‘Cooperative Federalism’ and undertaking such measures can be boonful to some extent. Thus, ‘Cooperative Federalism’ is very necessary for the functioning of a Democratic Government which binds the Center and the States to work hand in hand which ensures greater transparency, better governance and better accessibility and thus the Center needs to ensure the spirit of ‘Cooperative Federalism’ at the first hand.

 AUTHORED BY: YASH SINGH