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Mainstream, VOL L, No 20, May 5, 2012

Spirit of Federalism in India: The Need for NCTC

Sunday 13 May 2012

by TAMANNA KHOSLA

Federalism requires that States need to be given equal respect and powers as provided by the Constitution of India. In any kind of consultation States need to be involved in any kind of dialogue. Dialogue and deliberation between the Centre and States are a must in a federal democratic set-up. However there has been lot of controversy revolving around the formation of the National Counter-Terrorism Centre. Federalism in this case has been in a flux to deal with the tensions between the Centre and States.

The Home Ministry had, in February, notified the formation of an NCTC which was to become operational from March 1. But a number of Chief Ministers from non-Congress State governments strongly objected to the NCTC in the manner it was envisaged, saying that it encroached on the federal structure. A meeting of Chief Secretaries and DGPs of the State governments earlier this month was not able to resolve the differences.

Mamata Banerjee, who is the leading ally of the Congress in the UPA coalition at the Centre, is one of the most bitter critics of the NCTC in its current form. The main objection of the State governments has been that the current provisions in the NCTC give officers power to search, seize and arrest anywhere in the country. According to them, law and order being a State subject, such powers will erode the authority of the State governments.

According to the Bihar Chief Minister, another critic of the NCTC, the Centre should also respect the federal spirit of the Constitution and not take decisions that violate the spirit of federalism. According to him, the truth is that the police in States have been providing valuable operational support to the Central agencies. There has been no instance where a State Government has not cooperated with the Centre with all the resources at its disposal. If the Centre tries to usurp the powers of States, they can do so only at the expense of federalism.

The NCTC, according to these Chief Ministers, will impinge on the powers guaranteed by the Constitution to the States. Police and law and order are State subjects and the State Police should be allowed to handle law and order and internal security issues. Thus several Chief Ministers have already told the Prime Minister that the decision to create the NCTC was taken unilaterally and hastily. When it comes to protecting federalism, all the States, irrespective of party affiliations, should stand together.

But the fact is that federalism requires coordinated efforts between the State and Centre.

The Central and State governments have always co-operated for tackling extraordinary challenges to the security and integrity of the country. The current challenge should also be turned into an opportunity to provide a statutory basis and an independent oversight mechanism for the intelligence agencies to keep pace with the emerging developments.

The decision, to establish the NCTC, needs to be understood in the prevailing internal security environment in which terrorist organisations are able to strike at will.

After the terrorist attack on Mumbai on 26/11, the Central Government felt the need to build up our counter-terrorism capabilities. At present the Intelligence Bureau is the nodal agency for all counter-terrorism activities. Parliament is competent to legislate both on the Central Bureau of Investigation and Intelligence Bureau. The IB, therefore, has been set up by executive order, but it has no legal authority to investigate an offence, arrest persons or detain them, ask for remand or prosecute people in court. The complaint is that because the IB has no legal powers, it functions in grey areas where it exercises extra-legal powers but is not accountable for its actions. All governments throughout the world have secret intelligence units and organisations, but in most cases they work under some law. For example, in the United States both the FBI and CIA have been created by law. If the IB does not have any legal jurisdiction, certainly no agency created under the aegis of the IB can have any legal jurisdiction. The Government of India, however, has decided that it will set up a National Counter-Terrorism Centre (NCTC), which will have the powers of search, seizure and arrest. It is argued that this organisation will be created under the Unlawful Activities (Prevention) Act, 1967 as amended from time to time.

LET us now come to the subject of federalism and the Indian Constitution. In their wisdom our founding fathers made the police a State subject. The Central Government cannot acquire police powers so long as the Constitution stands unamended. Criminal law being in the Concurrent List, Parliament has the right to legislate on the issue of criminal justice and criminal procedure, but in doing so it cannot encroach upon the powers of the State enshrined in List II of the Seventh Schedule. In other words, the Code of Criminal Procedure can prescribe how all police forces in India will investigate and prosecute penal offences. It cannot, however, create police powers, nor can the Central Government acquire police powers. The only circumstance in which this can be done is if the Central Government, with the consent of State Legislatures, legislates on the State List subject of the police under Article 252. We are not talking here about a temporary legislation for a prescribed period under Articles 249 and 250 of the Constitution because both relate to extraordinary situations calling for immediate action at the national level. Any attempt by the Central Government to bypass the provisions of Article 246 and the Seventh Schedule would be a direct attack on the federal structure of India.

It is no one’s case that countering terrorism, both externally sponsored and home grown, is not vitally important for national security and ensuring the integrity and the sovereignty of India. The United States has a stronger federal structure than India because there all residuary powers vest in the States, whereas in India under Article 248 residuary powers vest in Parliament. However, when there is a matter of vital national interest a compromise is found between the State autonomy and federal authority. The Federal Bureau of Investigation was set up as a counter to the criminal gangs which operated in the United States in the early part of the twentieth century and which, because of the inter-State ramifications, could not be controlled by the State and local police. The Federal Bureau of Investigation was set up by an Act of Congress, to which no State objected and was given jurisdiction to investigate any matter in which State boundaries were transgressed. By interpretation and practice the FBI acquired jurisdiction where, for example, telephone calls were made across State boundaries or where the postal system, which is federal, was used for carrying information about a crime. When the tragedy happened on September 11, 2001 with aircraft crashing into the twin towers of the World Trade Centre in New York and the Pentagon in Washington D.C., a Department of Homeland Security was created with far-ranging powers which cut across State boundaries, a National Counter-Terrorism Centre was set up and the government vowed to insulate the United States from future terrorist attacks. Every American applauded these moves and the States welcomed them. In India, on the other hand, because of highly partisan politics, the State governments are opposing every move of the Centre to create a nationwide network of counter-terrorism units and organisations.

Our States are extremely wary of increasing the coercive powers of the Central Government because the track record of the Intelligence Bureau and DSPE in its avatar as the CBI is so bad as to completely erode all trust and confidence. The CBI has been used selectively for political witch-hunting and the IB has been shamelessly used to further the political interests of the ruling party. This is in keeping with the manner in which the Income Tax Department has also been used against political adversaries. It is the duty of the Central Government to enter into an open dialogue with the State governments and convince them that it is in the national interest to have an NCTC with certain over-riding powers in the limited area of counter-terrorism operations. There should have been a series of consultations between senior civil and police officers of the Centre and States, followed by high-level discussions at the political level. The Central Government should have in advance prepared a manual giving the bounds within which the NCTC would operate, the standard operating procedures for any operation and the role of the State Police before, during and after the operations. This would have built mutual trust and confidence. Obviously the Union Home Ministry did not think any of this was necessary. The net result has been a complete breakdown of confidence and almost obstinate opposition to the very idea of centralised action, with at least eight States combining to oppose the Centre in this matter. This is not a very happy situation, especially because uncertainty would only encourage the anti-national elements. We cannot risk that.

The Prime Minister must show true leadership in now ensuring that there is consultation and consensus, followed by action. The system has been damaged but the situation can still be retrieved.

The spirit of federalism in a democratic country is that State governments should indeed complement the efforts of the Centre (in tackling terrorism). The creation of the NCTC is not an attack on the federal structure of India. In fact it will go a long way to safeguard our national security interests in conjunction with the State Police apparatus. Therefore federalism, in practice, goes beyond just sharing powers between the Centre and States. It means sharing powers in a way that the units can express themselves poli-tically without feeling marginalised or suppressed. As was noted earlier, federalism is not practised the same way all over the world. All Unions need to experiment and form their own federal structure. The Union Government thus must ensure that States do not feel neglected, especially when they are ruled by Opposition parties. A consensus needs to be arrived at between the Centre and States so that national security is ensured in the present difficult times. The complaints of Chief Ministers need to be taken care of so that a strong and flexible federal structure is formed in India. The trust deficit between the Centre and States on the issue needs to be resolved. The NCTC should not be viewed by the States as a means of usurping powers from them. States need to be brought on board, a dialogue in the true sense must be established so that the States do not feel insecure. We should learn from the US and other countries which have established intelligence agencies to deal with terrorism; but the federal structure in India cannot be compromised.

Any kind of trust deficit between the Centre and States in the federal structure needs to be taken care of. National security is a priority but it can be ensured only when the Centre and States come together to deal with it. The NCTC is essential but only when both the Centre and States join hands to deal with the grave situation.

Dr Tamanna Khosla did her Ph.D from Jawaharlal Nehru University, New Delhi on multiculturalism and feminism. She is now working with Women in Security, Conflict Management and Peace (WISCOMP).

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