The central government is attempting to assert the superiority of the Union over the states through direct interventions in executive matters related to All India Service officers posted in states. Can the federal structure of the country withstand this new reality? No, not without compromising on the Constitution, writes NEERAJ MISHRA.
NCE again, former prime minister Indira Gandhi is the talk of the town. She, it is said, dismissed chief ministers with phone calls placed to governors in the middle of the night. However, the first time a federal government sought to dismiss a dozen elected state governments was in April 1977, right after the Janata Party won the general election and formed the first non-Congress government.
The home minister at the time, Chaudhary Charan Singh, wrote to all Congress chief ministers asking them to recommend the dissolution of their assemblies to the governors and seek fresh mandates.
Several state governments approached the Supreme Court. The main issue in State of Rajasthan and others etc vs Union of India was whether the Union Home Ministry can issue such directions to states under Article 256 of the Constitution. The court considered the letter from the home minister as not a clear direction but a suggestion in the context of the massive mandate in favour of the Janata Party.
Thus came into play the assertion of the Union Home Ministry vis-a-vis the states, and its authority to give directions to the provinces, bypassing the elected chief ministers.
Now, the election result in West Bengal seems to have created a similar situation, except that the Union party has lost the poll against the state party! So, now the Union wants to assert its superior role. Accordingly, there was a flood of reminders in the media from right-wing spokespersons about the importance of Articles 256 to 261, which are being interpreted as almost a parallel mandate to rule the state from Delhi. (These articles fall in Part XI of the Constitution, which deals with centre-state relations.)
The assertion of Article 256, in their view, is a natural precursor to the imposition of Article 356, as non-compliance can mean there is a “breakdown of state machinery”.
Do Articles 256 and 257 support such a conclusion?
Article 256 says: “Every state shall utilise the executive powers in conformity with the laws made by Parliament and with all pre-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.”
Article 257 and 258 say, “the states shall not impede or prejudice the exercise of executive power of the Union,” while the Union may “give such directions as it deems necessary for that purpose”.
The founding fathers, therefore, intended to make the states subservient to the Union in India’s federal structure and borrowed these articles from the Government of India Act, 1935, accordingly.
That Article 256 is almost a reproduction of Article 122 of the Government of India Act only shows that the Constituent Assembly visualised a relationship between the Centre and the states to be of more or less at the same level as in pre-Independence days.
Similarly, Article 257(1), which empowers the Union over the states in certain cases is a near-reproduction of Article 126A of the Government of India Act.
In various decisions, the Supreme Court has amplified that the central government’s power to give directions to the states operates at two levels. First, when a state fails to ensure compliance with a central law and second when the state uses its executive power to impede or prejudice the authority of the central government.
Hence, the focal point of Article 256 is to ensure compliance with a central law and Article 257(1) empowers the Centre to remove obstructions that come in the way of this.
Articles 256 and 267(1) intend to deal with ‘existing laws’ and only when the ‘state fails to comply’ with it, and only to the extent of ‘removal of such obstruction’.
There is another twist, though. Executive powers are divided based on subjects between the State, Union and Concurrent lists. However, under Article 258(1), the president may, with the consent of the state government, entrust to a state government any executive functions of the Centre.
Article 258(2) entitles Parliament to use the state machinery to enforce central laws, and confer powers and entrust duties to the state.
How can this play out in Bengal?
The Union Home Ministry can send a directive to All India Services officers, whom it can control directly. Such an order may make the state uncomfortable, but if it is within the ambit of the above articles, it will be forced to comply.
A Union government itching to prove a point can go several steps in the wrong direction. It could use Article 356, and a governor can claim non-compliance of central orders as the basis for a breakdown of administrative machinery in the state.
It can be argued that the All India Services, which were specifically created to serve the Centre, violate the principle of federalism. But the intention behind the arrangement cannot be doubted. A person in the All India Services is expected to bring cooperation and continuity in administration at the state and Centre. He or she is expected to implement a unified administrative policy and programmes.
Article 263 was envisaged for just such a situation where the federal structure of the nation could be preserved amicably through dialogue. An Inter-State Council formed in 1990 has met intermittently and its discussion agenda have revolved around time-bound clearances of Bills referred to the President, the state share in central taxes and, of course, the misuse of Article 356.
An All India Services officer is expected to bring cooperation and continuity in administration at the Centre and state. Yet, some individuals recently became targets of a tug-of-war; the IPS officers Parambir Singh and Rajeev Kumar, and the retiring chief secretary of Bengal, Alapan Mukhopadhyay, for example.
None of these issues was concluded to the satisfaction of all parties. The Centre has still not adhered to several recommendations of the GST Council, several Opposition-ruled states have complained that their bills are deliberately kept pending or sent back for reconsideration, leading to delays.
Through years of Opposition pressure and media interventions, the rampant use of Article 356 has abated but its shadow is still long. Now the right-wing is egging the government to use ‘options’ it believes the Constitution offers.
Such tactics are undesirable and will not meet the exigencies of the new political realities. Already, we have seen early morning oaths (Maharashtra) and innovative twists in the anti-defection laws (Madhya Pradesh, Karnataka, Goa, Sikkim, Tripura and Bihar), If the system is further tweaked in the case of Bengal, it will only undermine the Constitution.
(Neeraj Mishra is a senior journalist, farmer, and lawyer based in Raipur, Chhattisgarh. The views expressed are personal.)