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.
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 organisations, 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.
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.
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. Email: email@example.com)