NCTC and RPF Act: Not Compatible with Federal Relations

by HAMID HUSSAIN

The recent controversies on setting up a National Counter-terrorism Centre (NCTC) to operate under the Intelligence Bureau and the proposed amendment of the RPF Act, 1957 have thrown open the Centre-State issue once again. The credit for this goes to the charismatic leader, Naveen Patnaik, the three-time Chief Minister of Odisha, who took the lead in raising the issue of the NCTC with the Prime Minister and garnered support of ten more Chief Ministers such as Nitish Kumar, Jayalalitha, Mamata Banerjee and almost all the BJP Chief Ministers and a few others—all of whom subsequently sent letters to the Prime Minister on the issue on identical lines.

The latest one in the reckoning to extend support, apparently, is Omar Abdullah, whose father ironically is a Union Minister in the UPA Government, cryptically remarking that his State (J&K) has not been consulted on the issue. Mamata Banerjee’s avoidance of attending a meeting in Kolkata with Chidambaram, made the matter appear murkier, as her party is an ally of the Congress-I. As Naveen Patnaik retorted back on Chidambaram’s remark at Kolkata that national security was a joint responsibility of the Centre and the States, saying that if that were so, the Centre need not send hefty bills to poor States like Odisha for deployment of BSF and CRPF troops to tackle the Naxal menace; this added another twist to the vexed issue. It is another matter that the NCTC has certainly added to the worries of Chidambaram who already has the loads of concern on the 2G spectrum issue, Home Ministry versus Finance Ministry issue on the bugging (chewing-gum) case and many others. However, the moot point does not centre around the Home Ministry but on whether there is lack of trust and compatibility between the Centre and States in a system of ‘cooperative federalism’ and whether the cracks within the UPA are widening, signalling the creation of new possibilities in the 2014 general elections.

Together with these issues there are other issues as to whether the NCTC undermines the federal features of the Constitution, whether there was any urgency to set up the NCTC without consulting the States, whether strengthening the counter-terrorism mechanism inescapably the necessitates the Centre’s alleged infringement on State subjects of policing and public order, whether the NCTC should be placed under an agency called the Intelligence Bureau without any legislative control, and whether the formation of the NCTC with the proposed provisions is the only course of action left with the Central Govern-ment to effectively manage the counter-terrorism efforts. Almost an equal number of questions can be posed in regard to the proposed amendment of the RPF Act, 1957. The issues in regard to the Centre-State tiffs are numerous and these two are mere tips of the iceberg.

The genesis of the problem in regard to the NCTC and RPF lies in overlooking the distribution of powers between the Centre and States as stipulated in Schedule VII of the Constitution. The State List contains ‘public order’ and ‘police’ vide Entry 1 and 2 respectively. Entry 2, that is, matters concerning police, is subject to Entry 2a of the Union List which stipulates ‘deployment of armed forces’ to States, understandably, as and when emergency arises. The functioning of the NCTC or RPF has nothing to do with ‘deployment of armed forces’ in the normal situation.

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AS regards the NCTC, its powers are drawn from the Unlawful Activities (Prevention) Act, 1967, as it stands amended in 2004 and 2008. The amendments were mooted in view of the terrorist attacks on Parliament and Mumbai in the last decade/recent years, which empowered the Centre to search and arrest suspected persons and seize their property. Therefore, no wonder, senior Ministers in the UPA Government contend that the powers proposed to be entrusted with the NCTC are already vested with the Central Government and contained in the amended UAPA. Their argument, that there was no objection from any quarter at that time when amendments to the UAPA were moved, may have some teeth, but the issue is much more complex and there is much more to it than meets the eye. The States per se were not consulted at that time on the issue, as it was hurried up in an emergent situation without any ‘cool-headed approach’. There are instances when even constitutional amendments have been invalidated by further amendments. The 44th Amendment of the Constitution, for instance, had undone many of the provisions of the 42nd Amendment passed during the Emergency period. Hence, neither mere approval of Parliament nor existence of some provisions under an Act make it sacrosanct forever, least of all justifying its existence under the Intelligence Bureau which is a non-constitutional body and beyond the purview of parliamentary control.

The attempt to confer the Railway Protection Force with the power to ‘arrest’ and ‘investigate’ through an amendment of the RPF Act, 1957 is also facing stiff resistance. Naveen Patnaik, Jayalalitha and Narendra Modi have already asked the Centre to refrain from giving police powers to the RPF as it is not only in gross violation of Article 246 of the Constitution, laying down the area of jurisdiction between the Centre and States, but is also in violation of the Indian Police Act, 1861. The amended version would cut down the powers of the GRP. The allegations made specifically by the Odisha Government that some provisions of Schedule VII of the Constitution like Entries No. 22, 30 and 93 of the Union List and Entry 2 of the Concurrent List are ‘used’ to infringe upon the State’s rights, seem rational and justified. While on this issue many States are up in arms, Mamata Banerjee may not join hands this time, as the Railway Ministry is in the basket of the Trinamul Congress in the UPA conglomeration. However, the RPF issue is likely to have strong backing of many States and Opposition parties, as the State List at Entry 2 clearly entitles the States to have jurisdiction over police matters including ‘railways and village police’. The Centre’s misadventure on this account is there-fore not understandable.

The NCTC in its present proposed form vide section 43(A) will have the power to search and arrest suspected persons and seize their property. Besides the fact that it is debatable whether this is juxtaposed against Articles 19, 21 and 311 of the Constitution, that is, the right to freedom, right to life and liberty, and right to natural justice respectively, it by and large seems to be in gross violation of the basic federal principles and allocation of powers between the Centre and States as enshrined in the Constitution. Let there be no dispute about it. The only area of dispute should normally be on the Concurrent List on which both the Centre and States can legislate or on the residuary power which lies with the Centre. There are constitutional provisions stipulated in Article 131 entitling the Supreme Court to deal with disputes between the Centre and States/State and between States under its ‘original jurisdiction’. In the past, certain landmark judgments on the aspect of jurisdiction have gone in favour of the States. Notable among them are International Tourism Corporation vs State of Haryana (AIR 1981 SC 774) and Prem-chand Jain vs R K Chabra (AIR 1984 2SC 302). The instant issue has all the potentialities to be a landmark if moved to the Court, like the famous Bommai case, whereby the Supreme Court laid down parameters within which the Central Govern-ment has to operate in regard to Article 356, that is, imposition of President’s Rule in a State. Federal principles and fundamental rights are immune from being overridden by legislation or any law. The Supreme Court is the custodian of both. The famous Gopalan vs State of Madras is a glaring example whereby the Supreme Court, as the custodian of these, had invalidated Section 14 of Preventive Detention Act, 1950.

If the Centre wants to enjoy certain powers contained in the State List for some sound reasons, that can only happen with the consent of the States or when the Centre assumes emergency powers contained in Articles 352 to 360 of the Constitution. The Centre probably knows that it has entered into a difficult terrain by hurrying up with the NCTC, thanks to the typical bureaucratic approach of the Home Minister. Realising this, when Naveen Patnaik shot his second letter to the Prime Minister expressing his surprise on the lack of response to his first letter either by the Prime Minister or Home Minister, despite the matter being sensitive as far as federal relations are concerned, the Prime Minister took pains to write to seven Chief Ministers attempting to clear the air on the issue, but the air is far from being clear and the issue is refusing to die down. The RPF case adds to the apprehension that the States’ rights are systema-tically attempted to be curtailed, and that is detrimental to the federal functioning of the nation.

The Prime Minister’s contention through his letter on the NCTC that the Central Government’s ‘intent is not to affect the basic features of the Constitution’ and ‘allocation of powers between the Centre and States’, however genuine he may appear, seems to have few takers, more so after the RPF issue having been raised by a few Chief Ministers, specially Naveen Patnaik, who is spearheading the crusade against the erosion of the States’ rights. Whether the ‘intent’, in these cases, is in question or not, its possible resultant effect definitely is! After opening a hornest’s nest, Chidambaram possibly will not invite further trouble by inviting Chief Secretaries and Director Generals of Police of the States for discussion to look into the feasibility and technical aspects, without having it followed at the political level, that is, at the Chief Ministers’ Conference scheduled in April. For, once the matter has taken a political turn and compelled the Prime Minister to write to several Chief Ministers on the issue, it needs to be finally addressed at the political level.

What probably makes the Home Ministry overconfident on the whole issue is the Supreme Court judgment of 1994 on Kartar Singh vs State of Punjab, a case related to TADA, wherein terrorism is construed to be part of a ‘Defence’ related issue, it being detrimental to the sovereignty and integrity of the nation. In case of the NCTC, if that logic is advanced, the matter would come under the purview of the Defence Ministry instead of the Home Ministry. This is also seen in the light of Justice Hidayatullah’s opinion in Jayaprakash Narayan vs State of Bihar, differentiating between ‘law and order’, ‘public order’ and ‘national security’—from lesser gravity to higher gravity and then to still higher gravity, in that order. All these pertain to the technical domain of the issue. Naveen Patnaik’s focus shrewdly is on the ‘conceptual’ and ‘mechanism’ aspects of it and on the issue of ignoring the States, rather than on technicality which can have arguments both ways. His protest is just and substantive, as vindicated by the PM’s assurance that the States will be consulted and the Home Ministry’s indication of possible efforts on this count.

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ALL said and done, terrorism is an important issue. If there is no option but to retain certain pro-visions in question contained in the UAPA, there has to be a place for accommodation of inherent federal constraints. For instance, as the PM categorically stated that the NCTC is to co-ordinate counter-terrorism efforts, so the nomenclature may be changed to “National Counter-terrorism Co-ordination Centre” (NCTCC) instead of “National Counter-terrorism Centre” (NCTC), as it would not sound or appear as an over-brooding institution. In case it is felt inescapable to set up the NCTC, Section 43(A) which empowers it to search, seize and arrest, which are essentially the States’ subjects, should be done away with. If at all it is provided for, a clause should be suffixed to read “with the approval of the designated State authority, as the case may be”, so that States have the discretion to have a veto, if any such proposition is devoid of merit. This will keep the federal features and allocation of powers between the Centre and States intact and provide a mechanism of check on excesses on this account. The federal spirit demands accommodation and consensus on politically sensitive issues. It is also advisable to have the entire matter debated in Parliament as well as in the Chief Ministers’ Conference or the Inter-State Council (ISC), including a re-look at the UAPA provisions, setting up of the NCTC, provisions for minimising or ruling out excesses on this account and placement of it under the Intelligence Bureau—a non-constitutional and non-accountable body. That would be in pursuance of the federal sprit.

What is intriguing in the whole issue is that there are a host of intelligence agencies at the Centre—Intelligence Bureau (IB), Research and Analysis Wing (RAW), National Technical Research Organisation (NTRO), Aviation Research Centre (ARC), Joint Intelligence Committee (JIC), Defence Intelligence Agency (DIA), three services intelligence agencies—each one for the Army, Navy and Air Force—and a number of financial intelligence units. In 2008 the Multi-Agency Centre (MAC) was also set up and efforts began to set up a NATGRID to create a data base. With all these, the intelligence system in the country still falters and is not at all in an envious position. Often we need inputs from MOSSAD, KGB, FBI and others on sensitive issues. The NCTC would merely add up to the number of intelligence agencies or bodies. The need is not for mere structural changes, but for enhancing functional efficiency. It calls for modernisation, provision of latest equipment, adequate training, upgradation of technology and methodology, and, on top of it, ensuring accountability.

There can be a host of arguments in favour of setting up the NCTC or amendments to the RPF Act, 1957 or against these. Even in cases where proposals are procedurally and technically correct, in a federal set-up such proposals need to be politically conducive and correct to allow them sail through. What is the use of an Act or law which gets altered with the change of government? A law or an Act must be framed with four princi-ples in view—uniformity, acceptability, utility and capacity for survival. Both the proposals are unlikely to pass this litmus test. Arrogance of ‘majority-ism’ and ‘short-cut processes’ become counter-productive in federal democracy. This is evident in the present-day federal world encom-passing eleven countries. It is imperative to involve States or the constituents of a federation in decision-making processes on sensitive federal issues.
Federalism filters democracy. Federal functio-ning must attach due importance to dialogue, consultations and consensus as mecha-nisms to address issues of national and federal importance. Our federal set-up is like a ‘salad bowl’ with varieties of colours and flavour; efforts to put them in a ‘melting pot’ will be counter-productive. Efforts should be on harmonious existence on the basis of ‘shared rule’ and ‘self-rule’. Coupled with these are the twin issues of economic deprivation and regional disparities in terms of development which provide a fertile ground for fissiparous tendencies including terrorism, insurgency and the Naxal menace. The Centre must address these issues. However, whenever reasonable demands have come from poorer States—like the demand for ‘special package’ or ‘special status’ or increase in royalty rates from mineral ores—for the States, the Centre has lent a deaf ear. That is unfortunate. Undoubtedly terrorism is an important issue, but that is not the only important national issue. The Centre must give up its unilateralism, step-motherly attitude and lack of adequate concern for poorer regions. For, the nation cannot progress if all the regions and all sections of people do not develop. As far as terrorism is concerned, the Centre cannot counter this menace alone, as the States are inherently partners in the play, and therefore it would not be wise to thrust anything unilaterally upon the States—be it the formation of the NCTC or the changes in the RPF Act or any other measures.

Dr Hamid Hussain, an Executive Member of the Biju Janata Dal in power in the State of Odisha for long years, is the author of the book Indian Federalism: Emerging Trends.