Understanding the Problems
The state of WB is going to have state assembly elections in 2021. For this, each party is competing to strengthen their political base in the state. TMC is the ruling party in the state whereas BJP is ruling the center. BJP’s national president J.P Nadda was on a political visit to the state. When traveling to Diamond Harbor, some people started pelting stones on his congregation. His staff has sustained a few injuries. Later on, the WB Police tweeted negating the occurrence of any such attack. This further infuriated the Centre which would have anticipated a responsible response.
This attack was castigated by BJP as a “disgusting” practice of an “autocratic” TMC. The incident has manifold political biases and therefore couldn’t be divorced in the public domain. Between abuses and accusations, a legal step was taken by the Central government. The MHA summoned the officers involved in the security of J.P Nadda and ordered their deputation in Delhi. The officers are Bholanath Pandey (SP, Diamond Harbor), Rajeev Mishra (ADG, South Bengal), and Praveen Tripathi (DIG, Presidency Range). The center has already provided their positions in Delhi. The deputation shall be of five years for Tripathi and Mishra and of four years for Pandey.
Such a move was called out as “illegal” by the WB Chief Minister Mamta Banerjee. Let us delve into the legal aspects now.
What is the Legality of Such Transfer?
MHA cited its powers under the IPS Cadre rules, 1954 to depute the officers. The rules vest power with both states and centers to depute the officers. Rule 6 says that in case of any disagreement, the center’s power shall prevail. The state government shall be bound by the orders of MHA. The deputation is therefore legal. The central government, though, cannot penalize the civil servants posted under the State government. Rule 7 of the All-India Services (Discipline and Appeal) Rules, 1969 says that an action against the civil servants, both center and state need to agree. The deputation, but, is not a punitive action. But can the centre “force” the state to send officers? The subject is not clear but the precedents answer is negative.
In 2001, a similar kind of situation happened. The then central government summoned the IPS officers of the state of Tamil Nadu. But the state refused to send the officers. Even after repeated calls from MHA, the state government denied any compliance. The same kind of tactic has been displayed by Mamta Banerjee. She has also refused to send her officers. Both Tamil Nadu and WB have received support from other states in their attempt to “strengthening federalism”. The exercise of Rule 6 is thereby severely halted.
In 2017, IPS Archana Ramasundaram had won a long legal battle against the Tamil Nadu government’s “disciplinary action” against her. The Central Administrative Tribunal (CAT) ruled in her favour. Archana was suspended by the Tamil Nadu government after she joined the Central Bureau of Investigation (CBI). The state govt. wanted her to serve in the state only. Centre denied approving any such suspension. Tamil Nadu moved Delhi HC against the centre. The court rejected the plea of the state. Meanwhile, Archana won the case in CAT and the suspension was quashed.
This, however, is an emergency provision and has been very rarely used by the center. This is the first such exercise after the 2001 crisis. The states with very disturbing law and order situations have seen such discords. The rules also do not provide any per se existence of an emergency. Thus, the center need not provide a rationale behind its decision. But, as said above, the center does not have any power to reprimand the state for not following its orders.
Does Such a Deputation Attack Indian Federalism?
In the opinion of the author, it does not. Indian federalism is different from “absolute federalism”. India is a quasi-federal country. Our constitution is deeply inclined towards a strong center. It furthers the India of the “union of states” and not a federation. All-important subjects are put inside the Union List and States are given somewhat lesser powers. Secondly, when it comes to uniform laws, states should be bound by the central commands. As IPS Cadre rules, 1954 apply uniformly throughout India, a harmonious implementation requires strong central command.
Law and Order have for long been a serious issue in the WB. Human Rights Commissions have consistently remanded the state to maintain peace. The civil servants -IAS, IPS, and IFS-form the bedrock of the Indian administration. Their above-board conduct is essential for Indian executives to function. Thus, to maintain such transparency, the central rules and regulations are formed. But to avoid any collusion of state and center, CAT is given the responsibility to hear the cases. As in both the cases discussed above, CAT generally decides cases on facts. There is very little to be discussed on the law as they are silent on any such confrontation. In any case, central is presumed to be a superseding state. This was done in the case of Tamil Nadu in 2001 as well as in IPS Archana’s case. The WB govt. by denying sending the officers has created yet another conundrum. There are chances that the matter is placed before the CAT. The WB also reached the Supreme Court. Looking at the prospect, the Supreme Court would direct the state to the appropriate authority- the CAT. Hence, another fierce litigation in CAT is highly anticipated.
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