Indian Federalism Harmed in Mamata Vs Centre Over 3 IPS Officers

Why sending officers on central deputation legally but ‘forcibly’ is not the solution to issues of a federal system.

Mamata Banerjee’s TMC government and Modi government in Delhi lock horns over IPS officers’ deputation.  

Illustration: Kamran Akhter/The Quint

The ugly spat between the TMC government of West Bengal and the BJP government in the centre over the matter of three IPS officers has once again exposed the fault lines inherent in the fractious and fragile federalism of India.

Federalism on the Line

In our nascent zeal of ‘proving’ the idea of India to the world, its vast size and the regional, linguistic, ethnic, cultural diversities notwithstanding, we gave a unique and ‘watered down’ federal polity to ourselves. Its smooth functioning both presumed and demanded a certain level of maturity amongst the coordinate states towards certain common purposes, which we soon found wanting in both an ‘overbearing’ centre and ‘recalcitrant’ states.

As early as October 1949, many chief ministers had vehemently opposed the All-India Services (AIS) and wanted state civil services instead as they felt that the idea of All-India Service opposed the federal principle. However, rattled by the traumatic experience of the centrifugal tendencies in some princely states, Sardar Patel pitched in for continuity of the civil service, “You will not have a united India if you do not have a good All-India Service which has independence to speak out its mind”.

Given the respect, which his persona commanded, Patel prevailed but as the future was to unfold, the track record of the AIS belied his expectations and disproved his wishful thinking on both counts.

• The spat between West Bengal government and the Centre over the matter of three IPS officers has once again exposed the fault lines inherent in the fractious and fragile federalism of India.
  
• As early as October 1949, many chief ministers had vehemently opposed the All-India Services (AIS).
  
• The track record of the AIS belied Sardar Patel’s expectations and disproved his wishful thinking on both counts.
  
• After attack on JP Nadda’s motorcade in West Bengal, the BJP realised that no action would be taken against them by a favourable state government and the MHA issued the deputation order.the MHA issued the deputation order.
  
• The order is legally valid.
  
• Seeking the concurrence of the state government is a good practice in our federal system even if not strictly required.
  

Attack on J. P. Nadda’s Motorcade & Delhi’s Reaction

BJP chief J P Nadda had been travelling from Sirakol to Diamond Harbour to address a public meeting during his visit to the election-bound state on 9-10 December. Several cars in his motorcade were damaged and some BJP leaders and workers were injured when protesters carrying TMC flags threw stones at them.

The cars of BJP leaders were damaged in West Bengal attack.(Photo: Accessed by The Quint)

The centre must have desired action against Bholanath Pandey (SP, Diamond Harbour), Praveen Tripathi (DIG, Presidency Range), and Rajeev Mishra (IG, South Bengal) who happened to be posted as in-charges of the police district, range and zone respectively for negligence in duty. According to some media reports, BJP leaders accused them of having been ‘extremely pro-Trinamool’ for a long time and ‘almost cadres’ of the party. Action against them would have bolstered their charge of a bad law and order situation in the state.

Apparently, they realized that no action would be taken against them by a favourable state government and this frustrated them.

Maybe they were also irritated because the chief secretary and the DGP (director general of police) had declined their ‘summons’ to appear before the union home secretary stating that the state government ‘was already addressing the issue with utmost seriousness’.

A day after that, the MHA issued the deputation order. The three IPS officers have been assigned central organizations, namely, BPR&D (Bureau of Police Research & Development), SSB (Sashastra Seema Bal), and ITBP (Indo-Tibetan Border Police) respectively.

Is the Centre’s Order Legally Valid?

By the time of writing this article on December 18 evening, the state government had refused to relieve them for deputation and Mamata Banerjee had said that the state would not cower.

According to Rule 6(1) of the IPS (Cadre) Rules, 1954, the position since July 1985 has been that in case of any disagreement regarding deputation, 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.

Moreover, IG Mishra and DIG Tripathi have already been empanelled to hold IG and DIG level posts in the central government. There is no system of empanelment of SP level officers. This means that all of them are eligible for deputation. As such, the order is legally valid.

Deputation is NOT Punishment

There was a similar dispute between the centre and the state in May 2014. Archana Ramasundaram, then in the IPS in Tamil Nadu cadre, had received an order for deputation to the CBI. However, when she proceeded to join the CBI on a direct order from the centre, the same day the state government issued a suspension order for her delivered at her Chennai house. However, in December 2016, the Delhi High Court held that the decision of the Tamil Nadu government to suspend her was prompted by ‘legal malice’.

Though her circumstances were a little different from those of the West Bengal officers in the sense that she had applied for deputation with the consent of the state government, the fact remains that, in the end, the centre prevailed over the state.

A section of the media has wrongly projected it as ‘action against the trio’. This is plainly wrong. Deputation, in case of willing officers, is mostly regarded as a reward, not a punishment.

Is this a Good Practice in our Federal Polity?

No. Seeking the concurrence of the state government is a good practice in our federal system even if not strictly required.

The state government can argue that no special purpose in the central organizations would be served by these three officers. After all, there is no evidence that they had ever demonstrated any special aptitude for the works in the domain of BPR&D, SSB and ITBP. What miracles are expected from them?

In fact, the centre has itself been expressing concern over the deteriorating law and order situation in the state since long. For the Nadda incident also, Governor Jagdeep Dhankhar accused the bureaucracy of ignoring his warning about a potential threat to law and order.

Given this, it cannot be claimed that deskwork in the BPR&D or border guarding duty in the SSB/ITBP (which, in any case, have substantial strength of all ranks) is more important for the nation than maintenance of law and order in the state, which affects the public directly? In any case, extremely few SP level officers go on deputation to central organizations other than IB (Intelligence Bureau). Therefore, what is so special about this SP?

What is the Usual Procedure for Sending IPS Officers on Deputation?

The usual procedure for officers in the state seeking central deputation is that they must place their names in an ‘offer list’. After that, it is subjected to a screening process in the centre.

More importantly, once the state government has forwarded the offer list to the MHA, it means that the state government has no objection to their being relieved for deputation in case it comes through.

For the sake of argument, it can be said that in terms of Rule 6(2)(ii) of the IPS (Cadre) Rules, 1954, the consent of officers themselves is not required except for deputation to an international organization, an autonomous body not controlled by the government, or a private body.

In any case, the officers cannot be held responsible for any action like debarment from future deputation and foreign assignment/training if the state government refuses to relieve them at all.

What Will the Centre Achieve?

However, this legalistic view aside, the fact remains that officers’ willingness has generally been sought. Doubts shall therefore be raised as to what was the extreme urgency and provocation for issuing deputation orders for the three IPS officers. May be the centre just wanted to show the chief minister as to who is the boss in the matter of IPS officers.

This would, however, be childish because if a chief minister really wants to do something in furtherance of political one-upmanship, it can very well be done through a very large number of state police service and subordinate officers also—IPS officers are not the only ‘tool’ at their disposal.

Can the Centre punish the three officers?

No.

While on deputation, no disciplinary action can be taken against them by the centre for something that happened when they were under the state government.

If somebody wanted to harass them for their past, the DIG/IG rank officers might be given postings at places, which are ‘inconvenient’ to them from the point of view of keeping families with them or education of their children. We will have to wait and watch.

If Neither Mamata Nor Delhi Backs Down

We do not really know because such a situation had never arisen in future. So far, both sides have exhibited a remarkable lack of maturity. Making three IPS officers pawns in their proxy war is laughable at best and dangerous for our federal polity at worst.

The very fact that such a situation has arisen shows that we had plunged into our unique federal structure without thinking what would happen if the states or centre refused to behave responsibly.

If the centre tries to argue that some states have not been sending the prescribed number of IPS officers on deputation, this should be discussed with the chief ministers at national level.

If the majority does feel that they cannot afford to send officers on deputation, it is high time we had a serious rethink on the very existence of the AIS.

Historically, the scheme of the All-India Services under Article 312 of the Constitution provided that they would, by default, be allotted to various states but they would also be eligible to take up posts in the Union in matters of common interest. Why keep the All-India Services, if the officers want to, or are forced to serve in the states all their lives?

The constitutional scheme of AIS clearly fails if state or central government maliciously refuse to take action against guilty officers simply because the officers are aligned with certain political parties.

In any case, trying to send officers on central deputation ‘forcibly’ is not the solution to such systemic issues of a federal system.

We adopted democracy in procedure without inculcating democratic values; similarly, we adopted a federal structure without inculcating cooperative attitudes. Petty politics of one-upmanship and obduracy of both sides threaten to rip apart even the façade we have.

(Dr. N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. He tweets @NcAsthana. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)