Showing posts with label Constitution of India. Show all posts
Showing posts with label Constitution of India. Show all posts

Introduction:

The number of people who take their own lives has been gradually climbing over the past several years. Additionally, the number of people who die by suicide each year is 25 times larger than those who die by suicide attempts each year. The Mental Healthcare Act (MHCA), 2017, was passed into law by the Indian government around the end of the year 2018, possibly as an attempt to help the situation surrounding mental health. The Act, notablySection 115 of the act, removed the stigma associated with suicidal ideation and attempts, which reduced the stigma and the extended mental anguish experienced by a patient who survives a suicide attempt.

 

There were potential legal repercussions due to this Act given that it contradicts Sections 109, 116, 306, and 309 of the Indian Penal Code. Those individuals who have attempted suicide would have become eligible to receive free mental healthcare, treatment, and rehabilitation due to this piece of legislation.

 

Therefore, the end outcome places a significant financial strain on the government. Refreshing one's knowledge of mental illness and related skills is required for medical professionals, mental health professionals, and general and mental health institutions engaged in the treatment of persons who have attempted suicide to comply with the conditions of the act. In compliance with the criteria of the Mental Health Care Act of 2017, massive public education campaigns were also required to make treatment for mental health issues available to persons who have attempted suicide.

 

The structure of this study includes an analysis, from a comparative point of view, of the legal frameworks that exist in various countries on the right to commit suicide. After reviewing the available evidence, the author of this paper reviews the domestic state of affairs taking into account that the right to life includes the right to a good death. The final part of the paper includes a discussion of many different recommendations for future policy.

 

 

Indian Scenario:

The Indian legislature has enacted a significant number of legislations over the years. As a consequence of this, it should not come as a surprise that different regulations addressing the same subject may have contradictory interpretations. Resultantly, the Court is usually considered responsible for reviewing existing laws and providing a clear interpretation of them where there is ambiguity. This is done so that the Parliament may later settle any conflicts that exist between different pieces of legislation by setting it into law.

 

It seems like that is what happened when the Supreme Court raised attention to one of these irregularities, which is an issue that has not had a visible conciliation. By reading down Section 309 of the Indian Penal Code, the Mental Healthcare Act of 2017 effectively decriminalized suicide. As a result, the Supreme Court ordered an explanation from the Union government about this apparent contradiction in the law, and required the then Attorney General, KK Venugopal to oversee this inquiry.

 

There are a few facets to this comment that demand special study, not the least of which is the urgent need to weed out policies that are no longer relevant in today's world. IPC Section 309 is a provision that dates back to the colonial era, and it goes against the growing understanding that mental illness is a problem that has to be treated rather than discriminated against. For instance, mental illness frequently results in suicide, which is often considered a choice rather than a result of a health condition. On the other hand, the Mental Healthcare Act is a forward-thinking piece of legislation that promotes an ideation of suicide that is in keeping with the most recent scientific findings.

 

For example, Section 115 of the Act acknowledges the significant role that mental illness plays in people's decisions to end their lives by putting an end to their own life. This argument is of crucial value to the families of those who have committed suicide because of the stigma that is connected to mental illness.

 

People who are in need of treatment must have access to medical facilities, but it is also vitally necessary to challenge the deeply ingrained biases that taint public discourse on suicide and contribute to the taboo around suicide as well as the silence surrounding it. There is opportunity for legal change considering the direction that international law is moving in this day and age. Both Canada and Ireland removed the criminal penalties for suicide in 1972. The legal and public debate must take into account the fact that decriminalizing suicide might be an important first step in order to start a meaningful dialogue about preventing suicide. This is necessary in order to get the conversation started.

 

 

Study on Criminalization:

The International Suicide Prevention Association (IASP) policy released in May 2020 recommended that suicide attempts be decriminalized. Reducing societal stigma, increasing access to mental health treatment, and fostering suicide prevention activities can all be achieved by decriminalizing attempted suicide. Anti-suicide laws have subsequently eroded, especially in more secular regions of the world that allow for a wide range of non-religious and moral interpretations of suicide. In spite of numerous requests for the decriminalization of suicide, no comprehensive study or empirical evaluations have been conducted on the deterrent effect of anti-suicide legislation worldwide.

 

If the act of taking one's own life is legally stigmatized, those who have attempted suicide and those who have survived a suicide attempt may feel humiliated and enraged. It logically follows that repealing any such legislation will have good long-term effects, including lowering the social stigma associated with suicide, increasing the number of individuals who seek professional care, and removing the burden of potential criminal prosecution from those who attempt suicide.

 

 

 

Global Review:

There are a number of countries in Africa that have legalized the act of suicide, while the vast majority of Asian nations, with a few notable exceptions like India, have decriminalized the act of attempting suicide. Even in the United States of America and the United Kingdom, scenarios are shifting lately.

 

USA:

In almost every state in the United States, both committing suicide and attempting suicide is allowed. Each year, there are over 40,000 people who take their own lives in the United States, which places suicide as the tenth leading cause of death in the country regardless of the method of death. On the other hand, the attempt to commit suicide was previously considered a criminal offence in several countries.

 

Today, it is quite unusual for charges to be brought against a criminal who is in the process of dying. In the case of Wackwitz v. Roy (1992), in which the question of whether or not suicide is legal, the Supreme Court of Virginia stated that it is conscious that it is legislative sanctioning that treats suicide as a crime. This statement was made during the course of the discussion regarding the legality of suicide. "No suicide should work a debasement of blood or forfeiture of an inheritance," as the law states in Section 55–4 of the US Civil Code. Yet, this does not mean that the crime itself has been eliminated. This is due to the fact that committing suicide is considered a crime in a number of common-law jurisdictions, including Virginia.

 

Policy Design:

The right to one's own life is one of the most fundamental rights, since it ensures that everyone may lead a respectable life. This right is more than just a requirement for the state not to interfere with the life or body components of an individual; rather, it is a fundamental right. The State was also given the responsibility of upholding the sanctity and dignity of human life, which constituted a positive obligation. As civilized jurisprudence changes its focus to the potential of State legislators decriminalizing suicide or attempts at suicide, the time has come to develop unambiguous legal norms on both the national and international levels. Regulation of physician-assisted euthanasia is necessary, at the very least in the United States, and the establishment of similar laws in other countries is just a matter of time. In the process of formulating policy, defining crucial terms related to mental illness and giving them an unmistakable meaning devoid of any room for interpretation ought to be given the highest priority.

 

 

Repercussions in India:

Under the Indian Penal Code, 1860, Section 309 makes it clear that attempted suicide is still considered a criminal act. Those who are accused of the alleged offense have the choice between being released on bail, not having their cases compounded, or having their cases heard by a magistrate. People who participate in illegal or risky behaviors that cause harm to society or another human being are frequently considered to be criminally liable, as this is one of the primary reasons why they are held accountable for their actions.

 

One of the reasons to press criminal charges against an individual is to serve as a deterrent for those who might be tempted to engage in behavior that is unethical or detrimental to society. Even though it is illegal to attempt suicide, that does not prevent people from going through with it and killing themselves in the end. Because of their mental state, those who are suicidal will not ask about the consequences of their actions or whether or not they will be punished for what they have done. The use of jails and other types of punishment does not seem to have the effect of discouraging suicidal behavior. On the other side, punishment will not assist a person who is suicidal since it may aggravate their situation without rehabilitating them, which in turn may drive them to take their life. There are a still a few countries in Africa, like Ghana, Kenya, and Uganda, that have made it illegal to commit suicide. It is for us to see whether India is a country that wants to be grouped with the aforementioned countries in terms of treatment of mental illness.

 

A few other Asian countries, including Bangladesh, Malaysia, Myanmar, Oman, Pakistan, Syria, and the United Arab Emirates, continue to criminalize attempt to suicide. On the other hand, physician-assisted euthanasia is only legal in China, hence the practice is illegal everywhere else. In the United States, only Guyana and the Bahamas have legislation that makes it illegal to attempt to take one's own life. On the other hand, euthanasia is illegal in most of the United States, with the exception of a few states. Although some countries prohibit physician-assisted suicide and euthanasia, the Suicide Act in the United Kingdom makes it such that attempted suicide is not a crime.

People who try to end their own life should not be subject to legal consequences of incarceration by the State since they are not causing any harm to anybody else or to society as a whole when they do this. John Locke believed that the state should not interfere with an individual's liberty provided that person's actions did not negatively impact the rights of another person.

 

The majority of countries, including those that have decriminalized attempts at suicide, have laws that make it illegal to abet, aid, or encourage someone else to commit suicide. However, the nature of the actions that are considered illegal and the nature of the punishments vary greatly from country to country. There are 192 countries in the world, and 142 of them have laws that make it illegal to aid or encourage someone else to commit suicide. These prohibitions can include jail sentences. There is a lot of variety in the language of what is included in these Statutes, and once again, the level of enforcement varies widely from place to place. A sampling of the specific wording of what is deemed to be illegal in the laws provides some examples of the variety of descriptions of what is prohibited. For instance, "complicity in suicide" is prohibited in Bhutan and several other countries; "suicide pacts" are prohibited in Kenya; "direct provoking of a minor to suicide" is prohibited in Djibouti; "driving someone to suicide" or making a suicide attempt by way of threatening, cruel treatment, or systematic humiliation of human dignity.

 

Sociological implications:

Some people believe that the point of punishment is to teach people not to engage in illegal behavior in the future or contradict behaviors that have become normalized in society. It has not been demonstrated that threatening someone with jail time has a preventative effect on those who want to attempt suicide. In spite of the fact that one may anticipate that the number of suicide fatalities that are documented would be lower in nations where suicide is regarded as a taboo and criminal, the suicide rate is in fact, not lower in nations that have laws that penalize those who attempt suicide.

 

As a consequence of retribution theory, it is commonly believed that the criminal committed a purposeful act of will in order to warrant the application of punishment. According to Mishara and Tousignant (2004) and the World Health Organization (2014), it is generally accepted that individuals who attempt suicide have a mental disorder that makes it difficult for them to make decisions that are reasonable or "right." This is a theory that has gained widespread acceptance in recent years. Liberals, as a general rule, are of the opinion that penalizing people who attempt suicide is a reflection of society's animosity against individuals who go against predetermined social standards and/or religion.

 

A criminal may also be made to suffer public humiliation as part of their sentence in order to illustrate the level of disapproval felt by the general population. During the 18th century, the body of an inhabitant of Quebec, Canada who had committed suicide was paraded through the streets and hung in public. As a consequence of this, the bodies of suicide victims are frequently dishonored and buried in locations that are not within cemeteries in many civilizations in the modern world. Putting someone behind bars for having attempted suicide is a frequent tactic to humiliate and degrade both the person and their family in the eyes of other people, as long as they are living.

 

Recommendations:

It is necessary to push for the decriminalization of suicide in countries where it is considered as a crime rather than as a problem related to mental health. These countries include the United States and Canada. In addition, it would be useful to urge the formation of an international standard definition of "aiding, abetting, and assisting in suicide," which encompasses all of these activities. In some countries, it is only criminal to make plans to end one's own life, while in others, the concept of what constitutes illegal behavior is so broadly interpreted that even a passing remark to someone who is having suicidal thoughts might be construed as encouraging them to go through with it. Legislation and International law need to address the issue of aiding and abetting suicide in the cyberspace, as the internet is rapidly being used to encourage suicide and supply knowledge on different methods of committing suicide.

 

In countries where decriminalization of suicide has not taken place and is not going to take place, it is nevertheless vital to establish ways for giving mental health treatment to people who have attempted suicide. In the past, countries with liberal beliefs have been the ones to decriminalizesuicide by spreading the view that people who attempt suicide are not knowingly going against prevalent religious and cultural norms. This is done despite the fact that it is necessary to respect religious and cultural values.

 

The availability of empirical evidence demonstrates a common inability to make an informed and competent decision as a result of a mental illness, the use of substances, or being in a state of crisis. In addition, a person often makes an attempt at suicide when they are experiencing an intense amount of psychological suffering, and those who attempt suicide are more likely to have been under the influence of alcohol or drugs at the time of their attempt. The overwhelming majority of people who attempt suicide have a requirement for mental health treatment and support services (WHO, 2014). We have reached the conclusion that the course of action that is likely to be the most successful in the great majority of circumstances is to approach the problem of suicidal behavior as a psychological and mental health issue.

 

Since the Mental Healthcare Act of 2017 has been passed into law, there have been debates and discussions on the fact that Section 309 of the Indian Penal Code, which was passed in 1860, may resultantly be repealed. Many people now believe that Section 309 is no longer in effect as a consequence of the Mental Healthcare Act of 2017, which was passed in 2017. However, this new law did not result in the repeal of the aforementioned Section 309; rather, it restricted the applicability of that section. According to Section 115 of the Act, a person is deemed to be suffering from excessive stress when they attempt suicide; as a result, they are not liable to prosecution or punishment in accordance with Section 309 of the Indian Penal Code, 1860.

 

It is crucial to notice that the Act does not explicitly repeal Clause 309 or make it applicable to all attempts at suicide. The only exception to this is the portion that presumes the individual who attempted suicide was under "severe stress."

 

Conclusion:

In spite of the fact that suicide is now legal, we continue to make a distinction between the act of attempting suicide by oneself and the act of having another person assist, provoke, or encourage suicidalbehaviour. Even in jurisdictions that make euthanasia and assisted suicide legal for persons who are suffering from a terminal illness or a condition that has no end in sight, the act of assisting another person in taking their own life is controversial. When dealing with this reality, it is crucial to be able to differentiate between a person's psychological or emotional anguish and a medical condition that is becoming worse or has been going on for a long time.

 

Regardless of one's religious or utilitarian allegiances or one's Western liberal orientation, there is general consensus that supporting and aiding a suicide is morally wrong and ought to be punished. This is the case even if one is a Western liberal. However, there is no consensus that the person who is being assisted has a wounded conscious will. Cooley (2007) found that only a small number of rational suicides were respected. Hence, there is much ambiguity on which philosophy of punishment is more enlightened when considering our strong desire to punish those who help and abet those who commit crimes. It does not matter how we look at it; whether it is an act of retribution or an attempt to control the free and logical decision-making capacity of another individual, is a hard problem.

This Blog is Authored by Shruti Avinash, a third year student of the NALSAR University of Law.

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Introduction

We are all familiar with the phrase "constitution," which refers to the supreme law of the land, a set of rules and regulations for governing a country, and many more definitions.”“It is possible to have both a written and an unwritten constitution.”“India has a written constitution, whereas the United Kingdom has an unwritten one.”“However, the majority of us are unfamiliar with the phrase "constitutionalism."” “Constitutionalism is a philosophy or ideology that advocates for the rule of law.”“To put it another way, constitutionalism is a goal, and the constitution is a tool for achieving it.”“Constitutionalism has evolved into a critical component of any state's political life that can no longer be overlooked.”“It carries out its conflict prevention and resolution responsibilities.” “It is the belief that the government's power should be limited, and that its authority is contingent on the government's adherence to those constraints.”“The Constitution is just a legal and moral framework that establishes or establishes these constraints.”“According to constitutionalism, the constitution not only grants powers to the government's various organs, such as the executive, legislative, and judicial branches, but also seeks to limit those powers. A country may have a constitution, but that does not mean it is constitutional.” “In other words, Constitutionalism opposes concentrating all authority in a single organ and instead favours limiting these powers.”“As a result, constitutionalism is also known as "Limited Government," and the "constitution" is the source of these power restraints.[i]

The emancipatory goal of transformative constitutionalism is based on the belief that large-scale social transformation within a democratic system can be achieved through the process and instrumentality of the law.”“Transformative constitutionalism promotes a reading of the constitution that avoids formalism, pure positivism, and legalism, and instead recognises and responds to the realities of hierarchical structures and power relationships within a society.[ii]

Concept of Transformative Constitutionalism

We live in a rapidly evolving world that changes on a regular basis. As a result, in order to keep up, society must undergo some modifications.”“These amendments must be made to the country's constitution.”“The Constitution is a text that aims to bring about societal change.”“To put it another way, the constitution needs to change to keep up with the pace of civilization.

Transformative constitutionalism is an idea that has been around for a long time.”“It has been around since 1998 and was initially detailed in an article by American Professor Karl Klare titled Legal Culture and Transformative Constitutionalism.””[iii]The study of the South African Constitution and the freedom movement inspired the concept of transformational constitutionalism.”“He described transformative constitutionalism as a "long-term endeavour" that altered political and social institutions through the Constitution's enactment, interpretation, and enforcement.”“He also stated that the theory was futuristic in nature, implying that the goal was to develop the existing democracy and better it in the long run.

 

Constitutionalism encompasses the concept of adhering to the basic structure of values defined by a system of government.”“Transformation refers to a structured method of bringing about change, whereas constitutionalism refers to the concept of adhering to the basic structure of values defined by a system of government.”“The term transformational constitutionalism refers to the combination of these two ideas.”“Transformative constitutionalism is a subjective interpretation process.”“There isn't a single definition or understanding of it.”“In truth, each definition is hotly debated and as of today, there is no consistent grasp of the notion.

Transformative constitutionalism has taken on numerous meanings now, as it does with all successful endeavours, and much more so now that it has become a notion of comparative law.”“"If there is a philosophy that embraces the goal of constitutions as society's new moral and political base, this concept is transformative constitutionalism," says one of the most well-known definitions.”“Many countries, including Europe and the United States, have constitutions that serve to establish a new political and moral foundation for their societies, particularly when they emerge from the victory of a revolutionary movement, as in the early French constitution, or when they are adopted in response to past horrors, as in Germany and many Eastern European states.[iv]

Different interpretations of Transformative Constitutionalism

Transformation from a colonial rule to self-governance

This is regarded as a sort of transformative constitutionalism in the sense that a new framework for the Indian government was adopted in a systematic manner.”“When India attained independence from British colonial rule on August 15, 1947, an example of transformative constitutionalism was seen, according to this interpretation.”“The shift occurred not only in terms of government, but also in terms of the entities in charge of running the country.”“India was converted from a country ruled by foreign colonisers to one ruled by its own people, who were able to choose their own government and leaders.

Although the Government of India Act 1935 adopted a majority of the British rulers' framework, the change prepared the way for a new government that was formed by the people, for the people, and by the people.”“The Constitution introduced new values, such as dharma and justice.”“The system's transition to support these ideals was a constitutional requirement.”“As a result, transformative constitutionalism can be defined as the methodical acceptance of a new framework for the Indian government and the creation of the Indian Constitution.

Transformation of society and state

This interpretation is less event-specific and instead focuses on the country's ever-changing legislative and administrative changes.”“According to interpretation, the way a state acts in connection to the way society functions, and vice versa, is constantly changing.”“Both the state and society are influenced by one another, and both are evolving and changing.”“This is also known as transformational constitutionalism, in which the Constitution's essential values are upheld through change, such as in the judicial system.

One contemporary example is the 2018 case of Navtej Singh Johar versus Union of India, in which a component of Section 377 of the Indian Penal Code was decriminalised because it prohibited consenting acts of sex between members of the LGBT community.”“After more than 70 years of independence, the demands of society evolved, prompting this transformation.”“This type of transformational constitutionalism can be found in a number of other places.

Transformative Constitutionalism in India

Transformative constitutionalism was implemented in India as well, beginning in 1933.”“In 1933, the British established communal prizes, which required distinct representatives in Hindu, Muslim, and Christian languages.” “The depressed classes were also given a number of seats, but only the depressed classes were allowed to vote for them.” “MK. Gandhi reacted by going on a hunger strike, which ended with the Poona Pact, a pact between M.K. Gandhi and B.R. Ambedkar.”“Some rules were relaxed as a result of the agreement. M.K. Gandhi saved the country at the moment, but he had no idea what would happen in the future; the reservation system would just become a means of increasing the vote bank.

Similarly, important reforms such as the repeal of Articles 370 and 35(A) have occurred.”“These adjustments may have imposed a financial strain on Pakistan and Kashmir, but they were compelled by the dire situation.”“One example of transformational constitutionalism is the legalisation of the LGBTQ committee.”“This is how the dynamism of a constitution contributes to the development of a country and its people.

Our constitution is 73 years old, yet it is the legal profession's or legislature's responsibility to keep it up with the times.”“We are all aware of the annual dispute between India and China, which also needs to be settled.” “Since 1950, the constitution has undergone a number of modifications, but there are many more on the way.

In some of the most important judgments in Indian society over the last two decades, there are various examples of transformative constitutionalism.”“These are an attempt to bring about good change and provide a glimpse into how the legal structure and mechanisms may develop and improve in the future.” “One such example is the Ayodhya verdict.

M Siddiq (D) The Lrs vs. Mahant Suresh Das & Orswas a complicated case centred on a land dispute between two religious communities.”“The contested site is located near Ramkot, Ayodhya, and Hindu devotees believe it to be the birthplace of Lord Ram.”“The Babri Masjid, a mosque erected under the command and authority of Mughal Emperor Babar, was constructed on the same plot of land.” “Several Hindus felt insulted because the Mughals had taken over the region they venerated as the birthplace of their deity during their reign.” “During a political protest on December 6, 1992, Hindu extremists demolished the Babri Masjid.”“Following this, a complaint was filed with the Allahabad High Court, which determined that the land should be divided into three equal sections and distributed among the aggrieved parties.” “It went on to say that the contested property was Lord Ram's birthplace at the time, and that the mosque was built after the demolition of a Hindu temple, which was in violation of Islamic beliefs.” “The participation of historical facts as well as traditional and religious beliefs was the key issue in this case.

When their mosque was demolished by Hindu fundamentalists, many Muslims felt betrayed.”“Hindus felt betrayed because a hallowed place of worship was taken over by a foreign Mughal Emperor for the construction of a mosque.”“Each group had its own grievances and points of view, and the subject was exceedingly delicate.”“In 2019, the Supreme Court heard the case for the final time after all parties appealed to it.”“The Supreme Court of India handed down its final decision in this matter on November 9, 2019.” “The Court based its decision on a report by the Archaeological Survey of India, which stated that there were remains of a "non-Islamic" building beneath the demolished structure of the Masjid, and that the disputed land should be given to a trust set up by the Government of India for the purpose of constructing a Hindu temple.”“The Court also ordered those 5 acres of land be given to the Sunni Waqf Board for the purpose of constructing a mosque, stating that the mosque's demolition was illegal.

This is one of the most recent examples of transformational constitutionalism, in which efforts were taken to guarantee that neither religious community was offended, and that rather than being split over religious problems, communities were brought together.”“In this context, transformative constitutionalism refers to a systematic journey toward a society in which all religions can coexist without discrimination or inequities, a process that the Constitution has advocated for from its inception.”“This decision has elicited a variety of reactions, but it is evident that it was made with a futuristic mindset in mind, emphasising national unity over religious differences.[v]

Conclusion

For more than two decades, the phrase "transformative constitutionalism" has been used.”However, it has been around for much longer as a procedure, and it will continue to exist under the existing legal situation.”“As has been noted, several of India's most important judgments in recent years have revolved around the concept of transformative constitutionalism and have placed a high value on it, using the Constitution as a tool to improve the country's existing human rights, legal rights, and other constitutional rights.”“Although difficult to explain or define, transformational constitutionalism is a process and an event that has played a significant part in establishing the nature of democracy and a constitution within it.

This Blog is written by Aryan Mohanty2nd year student from Symbiosis Law School, Nagpur



[i]Arushi Negi, CONSTITUTIONALISM AND TRANSFORMATIVE CONSTITUTIONALISM, Lexlife India, https://lexlife.in/2021/06/03/constitutionalism-and-transformative-constitutionalism/

[ii]Mayank Bhandari, Transformative Constitutionalism, Legal Service India, https://www.legalserviceindia.com/legal/article-2275-transformative-constitutionalism.html

[iii]Sharanya Ghosh, Transformative Constitutionalism, iPleaders, https://blog.ipleaders.in/transformative-constitutionalism/

[v]Meera Emmanuel, Constitution Day 2019: Transformative Constitutionalism and the Indian Supreme Court, Bar & Bench, https://www.barandbench.com/columns/constitution-day-2019-note-on-transformative-constitutionalism#:~:text=%E2%80%9CThe%20whole%20idea%20of%20having,%E2%80%9C

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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 2/3rdmembers 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 246 of 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 2/3rd 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 101st 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


[i]India Const. art 1

[ii]State of Rajasthan v. Union of India, AIR 1977 SC 1361

[iii]India Const. art 245

[iv]India Const. art 246

[v]India Const. art 249

[vi]India Const. art 256

[vii]India Const. art 355

[viii]India Const. art 262

[ix]India Const. art 282

[x]India Const. art 279A amended by The Constitution (One Hundred One)Amendment Act, 2016

[xi]India Const. art 279A

[xiv]Ibid