India is a federal republic under Article 1 of the Constitution, as also Article 246 read with the Seventh Schedule of the Constitution, which gives the legislative jurisdiction of Parliament and State Legislatures. Nevertheless, this federation has strong unitary features, with residuary powers of legislation vesting in the federal parliament. In Germany and the United States, residuary powers vest in the Lands and the States. Many people try and explain away the strong unitary features by referring to the Government of India Act, 1935, which has been substantially carried forward by the Constitution. They thereby forget the famous speech made by the late Sardar Vallabh Bhai Patel in the Constituent Assembly when he pleaded for the inclusion of articles creating the All India Services in the Constitution.
Sardar Patel reasoned that India, because of its diversity, its multiple languages and ethnicity, its melange of religions and races and its past history had strong centrifugal forces which, unless countered, could lead to the break up of the Union. He, therefore, advocated the creation of countervailing centripetal forces, which could both create a strain of national unity and held the Union together when under pressure from breakaway forces. Our Constitution, therefore, has a number of such unifying structures built into it. The states, within Article 1 and List 2 of the Seventh Schedule, enjoy a degree of sovereignty because they have exclusive areas of legislative competence. However, the Governor of each state is appointed by the President under Article 155 of the Constitution. Under Article 156, he holds office during the pleasure of the President and is accountable only to him. This accountability achieves special significance under Article 356 of the Constitution, when it is the Governor who advises whether or not there is a failure of constitutional machinery in the state over which he presides.
Another unifying force is the judiciary. There is a hierarchical link between the courts ranging from the lowest court of civil judge class II and magistrate II class, as also the executive magistracy, going all the way up through the district and sessions court, High Courts to the Supreme Court. There is no separate federal and state judiciary and any judge can try any case both under state laws and under federal laws. In the United States, the state judiciary is completely separate from the federal judiciary and each tries cases respectively under state and federal laws. It is only at the level of the Supreme Court that both judicial streams come together. The Indian system ensures uniformity of justice and the creation of unifying forces within the Union.
The Armed Forces, the Comptroller and Auditor General and other similar institutions are also a binding force. However, the uniqueness of the Indian Constitution lies in Article 312, which creates the All India Services, which man the senior posts in both state and federal governments. I do not know of any other federation in which a civil service holds posts under both types of government, though the ultimate cadre controlling authority is the union government. Sardar Patel argued very strongly and vehemently, to the extent of threatening to quit if his proposal was not accepted that India needs a strong and independent civil service which, while faithfully carrying out the policy laid down by the elected representatives, would nevertheless be impartial in implementation and fearless in rendering advice because of the security of service that it enjoyed. It is in this context that the Indian Administrative Service, the Indian Police Service and later the Indian Forest Service has been created.
What is the job of a civil servant? Under Articles 53 and 154 of the Constitution, the civil services help the President or Governor to exercise the executive powers of the state. Because the President or Governor is required to exercise such power only on the aid and advice of his council of ministers under Article 74 and 163 of the Constitution, in effect the civil services are there to exercise executive power as directed by the ministers. About this there is no doubt in anyone's mind. Trouble arises when the ministers decide to exercise the executive power themselves and the civil servants are reduced to the level of clerks. The ministers will naturally exercise their powers in a partisan manner because they have a political constituency which they have to please. Democratic government under a system of laws, however, requires that laws and rules are administered without prejudice and without showing undue favor to anyone. There can be no partisan application of laws, rules or policy. That is why we have strong civil services which are, theoretically, accountable to the law for its application and to the ministers for their conduct and their impartial functioning. However, as things have now developed, the civil services are being decreasingly rendered ineffective and politicians have begun to whimsically apply policy and to implement it in a highly partisan manner.
Under normal circumstances, such a situation leads to a regime of favoritism and disfavor. Unless a citizen falls in line with the political requirements of the politicians temporarily in power, he cannot expect a fair deal from the state. Therefore, in order to curry favor he bends over backward to please the politicians. Since nothing pleases the politicians more than a hefty bribe, the next phase is the introduction of a regime of corruption in addition to a regime of favoritism.
However, the worst effect of the emasculation of the civil services is felt during an emergency, whether it be a natural or man made calamity or it be a law and order situation. The law is clear. If there is a breach of peace, violation of law or a situation of collective violence, the Code of Criminal Procedure and the Police Act enjoin the executive magistracy and the police to take preventive action, including the arrest of the likely trouble makers, corrective action such as deployment of adequate police force and coercive action, which includes use of even lethal force to disperse unlawful assemblies. This has to be followed by punitive action in which perpetrators of crime are arrested and arraigned before a court of law. The executive magistracy and the police are not to seek orders from anyone because they derive their powers from the law and not from the ministers. Similarly in a calamity the lowest executive officer is supposed to take immediate remedial measures and neither budgetary constraints nor issues of jurisdiction should hinder him. However, neither the executive magistracy nor the police actually follow the law because they await orders from above in an act of abdication of their lawful functions.
Two of the most shameful examples of the above are the 1984 anti-Sikh riots and the 2002 Gujarat riots. In 1984 after the assassination of Mrs. Indira Gandhi, the police, especially the Delhi Police, stood by as a mere spectator whilst rampaging mobs slaughtered thousands of Sikhs. Whether in exercise of the right of private defence or in performance of his duties under the Code of Criminal Procedure and the Police Act, every single policeman from constable upwards is required to intervene the minute he sees an offence being committed. Murder is the most heinous offence of all in the Indian legal lexicon. Despite this, the police did absolutely nothing (the American vulgarism, Sweet Fanny Adam, is the expression which comes to mind) and stood by watching the fun. No policeman was punished for this gross dereliction of duty.
In 2002 when communal riots wracked Gujarat, one found a very similar administrative paralysis, with a few honorable exceptions. The Police Commissioner of Ahmedabad permitted two ministers to take over his control room and ensure police inaction for three days. In Vadodara, the Police Commissioner did not activate his force for a number of days. The honorable exceptions were the Collectors and SSP of Bharuch, Junagadh, Bhavnagar and Kutch. They were all transferred for their pains, without arousing any great public protest. It must be understood that the inaction of the executive magistracy and the police has resulted in thousands of innocents being killed, which is a heavy price paid for establishing political supremacy over the executive even in the matter of implementation of laws.
A regime of favoritism coupled with a regime of corruption, in which the bureaucrats are abused morning, noon and night as servants of red-tape, obstructers of development, bumbling, officious nincompoops, has totally demoralized the civil services. They have become partisan, ineffective and corrupt. The partisanship has even reduced their efficacy as a binding force of our nation. This has degraded the administration to such an extent that one wonders if there is any administration left at all.
The civil services must follow the rules and implement them. If the rules hinder development let the policy makers, i.e, the elected representatives, change the rules. But for heavens sake do not give the civil servants the discretion to decide whether or not they will implement policy, the law and the rules. That opens the twin gates of inefficiency and corruption. India must insist on a restoration of the civil services of a type envisaged by Sardar Patel so that each government servant does his duty and there is never a repetition of Gujarat.