The vociferous objections of some States
to the proposal for establishing a “ National Counter Terrorism Centre ” (NCTC) have raised questions about the term
“federalism.”
The crux of the objections is that the
sovereign power of the States is violated in the ‘federal structure.’
We have to examine:
(a) Whether the NCTC violates the basic
structure of federalism and deprives the States of their sovereign rights under
the Constitution;
(b) Whether the States (units) in India
claim the same sovereign rights of the ‘States’ as in the American Constitution
and;
(c) Whether the NCTC will be efficacious
in combating terrorism.
The founders of our Constitution declared
unequivocally in the very First Article itself that ‘Bharat’ shall be a Union of States.” It is significant that the term
“federal” is conspicuously absent in Article No I supra.
The Drafting Committee led by Dr. Ambedkar examined carefully the ‘federal’ aspects
and their implication for the battered Indian States left by the British rule
in 1947. It preferred the term ‘Union’ in the first article. It found the
advantages in describing India as a Union of States supra rather than as
‘federal’. The sagacity of framers lies in recognising the unity and integrity
of India. That is why Dr. Ambedkar
explained emphatically in the Constituent Assembly that he applied the term UNION so that the States (units) will have No Right to Secede
from the Union.
Federalism in U.S.
The United States of America is a classic
example of ‘federalism’ in the world. Now, the analogy is focused only on the
position of the States of India in its Constitution and their status cannot be
equated with the States of America though the Indian Constitution is said to be
a ‘federal forum’ or ‘quasi-federal’ in nature.
The States in the U.S. have got the right
to make their own Constitutions and they have got ‘dual citizenship.’ But in
India, the States have only ONE citizenship. Further, residue powers have been
vested only with the States in the U.S. whereas in the Indian Constitution, the
“Residue Powers” are only in the hands of the “Centre.”
The Centre is placed in a dominant
position with a ‘unitary spirit.’ Though the Constitution is supreme,
Parliament has been empowered to pass ‘valid and just law’ on the State
subjects (State List) under Articles 3 and 245 to 254.
The position of the Centre and the States is dilated in the following aspects.
Thus, the objections of some States to the establishment of the NCTC do not
hold water on the ground of ‘federalism.’ According to Article 3, Parliament
has got powers to enact laws on the formation of States thus:
a) To form a new State by separation of
territory from any State or by uniting the States
b) To increase the area of any State
c) To diminish the area of the State
d) To alter the boundaries of any State
and
e) To alter the name of any State
Further, the 18th Amendment, 1966 was
made to strengthen the powers of Parliament under Article 3 for deciding the
rights of position of the States.
Legislative relations
Articles 245 to 254,
pertaining to the powers of Parliament, manifest without any ambiguity that the
Centre has been empowered to control the acts of States under the DOCTRINE OF REPUGNANCY particularly in the Concurrent List . Further, the doctrine of
occupied field and the Doctrine of Severability play a vital role in overriding
the role of the States in the law making process in the Concurrent List ( AIR
1979 SC 898 (M. Karunanidhi vs. Union of India) and AIR 1996 SC 2384
(T.K.V.T.S.S. Medical and Educational Charitable Trust vs. State of Tamil
Nadu).
Apart from that, ‘President’s Rule’ under
Article 356 speaks of the power of the Centre over
the States in case of failure of the constitutional machinery (AIR 1994-SC-1918
(Bommai’s case).
NCTC and its Necessity
The people of India have not yet
recovered from the trauma of terrorist killings in Mumbai in 2008. The attack
was quelled by the anti-terrorist forces of the Centre with great difficulty
after a prolonged struggle.
Thus, to combat terrorism effectively,
the Centre proposed the NCTC on the lines of the NCTC in the U.S. The fact of
lack of intelligence inputs and lack of prompt coordination among intelligence
agencies during the Mumbai attacks cannot be ignored.
The NCTC derives its powers from the Unlawful Activities (Prevention) Act 1967, in respect of ‘searches’ and the issue of arrest warrants
throughout India to prevent terrorist attacks. It is needed for curbing terrorism
in a full-fledged way.
The safety of people is at stake in most
of the States: extremism and a separatist movement in Jammu and Kashmir, ULFA
and Bodo Extremists in the North-East, Naxalites in eastern India and some
parts of Maharashtra and Andhra Pradesh, terrorist organizations, i.e., Indian
Mujahideen (SIMI).
Though objections raised by the States to
the NCTC are not tenable, they seem to be well-founded in respect of the powers
given to the agency under the Union Home Ministry as per section 43(A) of the
Unlawful Activities (Prevention) Act 1967.
They are:
1) As wide powers are given to the NCTC,
the agency could be directed solely at the behest of Home Ministry without
taking the consent of the State concerned. So, there will be political mileage
to be generated in respect of searches and arrests against opponents.
2. The clear-cut consent or concurrence
of the State concerned for launching probe in the event of a terrorist attack
has not been spelt out.
3 .The mode of appointment of the
investigating officers and the nature of accountability of the officers in the
NCTC are not specified.
4. Whether the NCTC is bound to inform
the State concerned of the stage or progress of investigation is not specifically
stated (regarding coordination, information and documents with the other
intelligence agencies of the States).
5. It is not clear whether the States
concerned are entitled to get the relevant information at any stage of
investigation from the NCTC.
Conclusion
1) According to Articles 3, and 245 to
254 of the Constitution, the Centre is placed in a dominant position as to the
formation of the States and the law-making powers in State subjects as also in
the national interest. Hence, the NCTC, to be established for curbing terrorist
attacks by itself, will not be construed as a violation of federalism under the
Constitution.
2) The objections and reasonable
apprehensions raised by the States, particularly on the role of the NCTC with
the ample powers of Section 43(A) of Unlawful Activities (Prevention) Act 1967
have to be examined carefully without any political colour.
( The writer is president, District
Consumer Disputes Redressal Forum, Chengalpattu, Tamil Nadu. ( The Hindu ) )
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