Current Public Administration Magazine (April - 2016) - Anti-Terror Measures and Federal Balance in India

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Law Administration

Anti-Terror Measures and Federal Balance in India

INCREASING SCOURGE of terrorism over the years in India has presented a complex conundrum of evolving a fine and consensual policy of its effective control and management. Such a strategic plan of action not only needs to take into consideration all the critical concerns lying at the root of the problem, it should also minimally upset the basic constitutional design and political conventions of the country. However, both seem to be at a loss in so far as anti-terror measures in India are concerned. As for the first, indeed, the anti-terror strategy is mired into the competing claims of two contending approaches: contextualist and confrontationalist. While the contextualists seek to locate the origin and development of terrorism in the complex historical socio-economic and political factors lying beneath deprivation and consequent alienation of the people, the confrontationalists take terrorist activities as ‘misconceived causes espoused by the misled and crime-prone individuals and groups whose sole purpose is to disturb the social order as that is the only way they know how to express themselves’.

Accordingly, the two advocates’ differing strategies to deal with the challenge. The former argues for a concerted and long-drawn strategy of planned socio-economic development coupled with effective political empowerment to dispel the sense of deprivation and alienation. That is the only way these people can be encouraged to give up arms and abjure violence to join the mainstream of peaceful and constructive life. On the contrary, the latter unhesitatingly takes terrorism as nothing more than a law and order problem and calls for preponderant use of force to counter the menace. Clearly, the confrontationalist approach seems to have been the dominant approach in the echelons of decision-making in the Central Government.

On the second proposition, the situation appears to be more precarious with far-reaching consequences for the constitutional foundations of federalism, given the original constitutional mandate and recognisable political conventions in the country. As such the constitutional scheme stipulating distribution of responsibilities between the Centre and states, the latter has primarily been vested with power and responsibility of maintenance of law and order in the state. For this purpose, police has specifically been placed under the primary jurisdiction of states presumably not only to emphasise the primacy of the states functional domain but also to indirectly rule out any explicit overlapping jurisdiction of the central government.

In the course of working of the Constitution for over six decades, the sanctity and viability of these stipulations have been recognised to a great extent. Sporadic attempts to undermine and violate the constitutional mandate on the part of the Centre have met with stiff resistance from both the constitutional luminaries as well as the states that eventually repelled all such moves, to a large extent. Thus, a political convention has also emerged that recognises states’ ordinarily inviolable jurisdiction over the matters of law and order, and police. Nonetheless, over the years, the country has witnessed a massive growth of centralised paramilitary forces which are increasingly deployed in localised conflict management, along with a centralisation of intelligence functions.3 Above all, with the rise and growing menace of terrorism, a sense of disdain has sought to be created that terrorism is an exceptional threat to public order, and the states are unable to cope with it. Resultantly, a natural space exists for the Centre to be dominant and proactive partner with the states in tackling the threat of terrorism. However, such an assertion is a usurpation of states primary domain as per the constitutional provisions and political conventions. Moreover, any domineering move to upset the federal balance in Centre’s favour is likely to go against the spirit of cooperative federalism that underpins federal structure of the country. For, “only the spirit of ‘cooperative federalism’—not an attitude of dominance or superiority—can preserve the balance between the Union and the states, and promote the good of the people”.4 It has, therefore, been argued here that anti-terror measures shall tend to bother the federal balance of Indian polity unless the states are taken as the primary stakeholder in all such measures.

Constitutional Framework

Bearing out the wisdom and farsightedness of founding fathers on critical issues of Indian polity, Austin contends that the ethos of decisionmaking by consensus was manifested most in drafting the federal provisions of the Constitution.5 Evidently, at the time of finalising these provisions, certain doctrinal tenets of federalism appeared so axiomatic to the members of the Constituent Assembly that they agreed to make them part of the Constitution even without a summary debate on the subject. One such principle, inter alia, seems to be the subject of public order in the scheme of division of administrative powers and responsibilities between the Centre and states. Taking the maintenance of law and order as a routine matter, the fathers of the Constitution probably did not think twice in assigning this responsibility to states with minimum explicit role visualised for the Central Government. Even when a demand was made to give control over the railway police to the Union Ministry of Railways, it did not find favour with the drafters on the plea that it directly compromised with the power of the states. Moreover, it was strongly felt that the states should have overall operational control over the police.6 As a result, the subjects of public order and police were placed in the State List with states having extensive power to take appropriate legislative and administrative measures to discharge their prime responsibility in this regard.

However, Central Government could not resist the temptation of carving out a role for itself. Accordingly, subtle but schematic amendments have been made in the relevant provisions of the Constitution. Currently, therefore, a conjoined reading of Entries 1 and 2 of State List with Entries 2 and 2A of the Union List clearly points out that states’ jurisdiction over the subjects of public order and police has not remained absolute. It has, in fact, been made a qualified general jurisdiction subject to specific laws, legislations, stipulations and directions of Central Government. Such an overlapping scenario is grounded in the jurisprudential axiom which lays down that in case of two concurrent jurisdictions on the same subject—one specific and the other general in nature—the former would prevail over the latter in case of any discrepancy.

So, in case of the subjects of public order and police, states have now been bestowed with a general competence whereas in select but related matters, Central Government has been given specific responsibilities. Hence, to the extent of those specific competences, the state’s general jurisdiction over the given domains becomes subjected to the specific responsibilities of the Centre. In other words, until and unless Centre steps in to discharge its specified obligations, states retain a general competence over public order and police. But once a specific move is contemplated by Central Government, to that extent, the functional space of states shrinks in the matter. Summarily, thus, in contemporary times, public order is construed as “a joint responsibility requiring joint management and joint policing”.7 Of late, maintenance of public order and social control of disorder have challenged democratic societies across the world. But in the federal polities like India, equally complex issue of explicating proper constitutional domain of the stakeholders also becomes a vexed question. In other words, the rise of unconventional threats to public order like terrorism has added newer dimension to the constitutional provisions affording contingent role for the Centre in a sphere placed in the State List.

Hence, as Singh reasons out, “Public order’, ‘internal and national security’, ‘territorial integrity’, and maintenance of constitutional political order when read together with ‘terrorism’ blur boundaries of jurisdictions between federal and state governments. Organisationally and in its effects and ramifications, terrorism is local, national and international, hence a shared responsibility, requiring better coordination of policing, intelligence and resources”.9 Amidst such a complexity, it is important to understand that the constitutional rationale of ordaining public order and police for states rests on the territoriality principle of federalism whereby states are given competence to maintain public order with their operational control over police in the specified area of jurisdiction under them.

But the ever changing dynamics of terrorism has been argued to have radically altered this scenario. In reality, “the potential for, as well as actual incidents of, terrorism have not only increased but have also become relatively more global, often conducted by transnational and non-state actors.”10 To put it differently, the newer threats like terrorism generally defies the logic of territoriality thereby obtaining a leg space for federal government to join states in discharging a responsibility basically vested in states. Underscoring peculiarity of the threat presented by terrorism, Singh writes succinctly: As terrorism is maintained through a spiral net of ‘cadre and cache’, therefore, constitutional principle of ‘territorial nexus’ loses its relevance in determining power domain under the constitutional competence called ‘policing’. What is emphasised here is that policing have extraterritoriality in terms of specifying powers of the federal and state governments. Extraterritoriality produces concurrency of jurisdictions and actions with constitutional privileging of federal powers.

In the face of such intricacies, the concurrency of Centre and states jurisdiction over public order on account of grave threats of terrorism has been subject to intense judicial scrutiny as well. Through its judgements in various cases, the Supreme Court has added an altogether new dimension to the discourse by proclaiming that tackling terrorism patently falls within the amorphous sphere of residuary powers of Centre. Deciding on the nature and extent of ‘public order’ and the related issue of Parliament’s competence to enact anti-terror laws, among others, the court held: Having regard to the limitation placed by Article 245(1) on the legislative power of the Legislature of the State in the matter of enactment of laws having application within the territorial limits of the State only, the ambit of the field of legislation with respect to ‘public order’ under Entry 1 in the State List has to be confined to disorders of lesser gravity having an impact within the boundaries of the state.

Activities of a more serious nature which threatens the security and integrity of the country as a whole would not be within the legislative field assigned to the states under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary powers conferred on Parliament under Article 248 read with Entry 97 of the Union List.12 However, the questions on Parliament’s competence to make antiterror laws were finally put to rest in the case of People’s Union for Civil Liberties v. Union of India.13 Challenging the constitutional validity of Prevention of Terrorism Act, 2002, PUCL contended that Parliament did not have jurisdiction to legislate the law as it substantially dealt with public order stipulated under Entry 1 of List II. But, dismissing the petition, Court reiterated that tackling terrorism does not fall within the rubric of public order or security in so far as it effects or relates only to a particular state. Fight against terror is not a regular crime control endeavour as terrorist activities take the shape of an undeclared war against the nation by the epicentre of terrorism. With massive support of well-organised and resourceful terrorist organisations, terrorism poses a formidable challenge to the edifice of sovereignty and integrity, constitutional principles, secular fabric and the democratically elected government of the country.

That way, the totality of terrorist activities cannot be meaningfully confined to the domain of public order or any other entries in List II. Therefore, concluding that terrorism obtains an uncommon phenomenon to be a fit case for inclusion under the residuary power of Centre, the court upheld Parliament’s competence to make anti-terror laws. In brief, the existing provisions of the Constitution reflect the modified version of the original intent of the founders. In the aftermath of substantial amendments, Constitution seems to afford excessive operational space to Centre in an area that conventionally falls under the general domain of states. To put it differently, in spite of public order and police being placed in the State List, these entries have been unambiguously qualified with an inexplicable role for Central government that does not permit them to remain absolute. Hence, it is not astonishing to find that despite vehement contestations from states as well as the civil liberties organisations, Supreme Court has categorically taken the position that Centre does have an important, if not formidable, role to play in the maintenance of public order in extraordinary situations. What, however, seems more significant in this context is the virtuous hope of the founders that the constitution is meant to be worked, to the maximum feasible extent, in as normal and general framework as possible. The emergency, abnormal and exceptional provisions of the constitution need to be as minimally used as possible.

Arguably, the same canon of constitutional wisdom applies to the federal template of anti-terror measures in which the primary operational domain must be ordained for states. In sum, as the veteran constitutional luminary Noorani points out, “Public order is exclusively a state responsibility unless: (a) central aid is sought by the state government, or (b) the breaches of public order have become so grave and prolonged as to amount to the ‘internal disturbance’ contemplated by the founding fathers”.

Scale of Federal Matrix

Enthusiastic conceptualisation of the ingenious constitutional provisions by Central Government, backed by their radical judicial interpretation, appears to have put the normal federal scheme on public order and police in a precarious situation. Provisions that have declaredly been placed in the Constitution to deal with extraordinary circumstances with their most judicious application have apparently been overused as if they are for mandatory implementation. When such insalubrious tendencies were sought to be stemmed by judicial interventions, the petitioners were in for a jolt. The court, instead of being considerate to their concerns, seemed to have even jumped the constitutional threshold. Thus, overstepping Centre’s moderate contention that anti-terror measures are a shared responsibility, it ruled that it is a subject under residuary powers with Centre having full operational control over it. But thanks to imperatives of coalition politics, on one hand, and indomitable resistance mounted by states, on the other, tackling terrorism has well been accepted as a joint responsibility of both Centre and states. However, on a critical examination of the spirit and the operational dynamics of constitutional provisions, it becomes obvious that states do have primary and clearly identifiable role in tackling terrorism. “The central security forces and the Army come in when the situation is beyond the control of the police”.15 Interestingly, in the original scheme of constitution, reflecting the mindset of the founders, public order and police were generally ordained as eminent domains of states with minimum or no overlap with the Centre’s jurisdiction. Later on, certain qualifying provisos have been inserted in the relevant provisions ostensibly to obtain a supplementary role for the Centre in maintenance of national security, internal peace and order, territorial integrity and constitutional arrangements in normal times. This move itself has had the potential of dislocating the constitutional scale of federal matrix in so far as states’ eminent domains are concerned. However, it was tolerated at that time presumably with the understanding that these are provisions for abnormal times, and states’ primary jurisdiction over public order and police would remain unfettered during such times.

Hence, despite the fact that terrorism has posed a serious challenge to the peace and order in certain states, that need not be alarmingly construed as an insurmountable threat to the national security and territorial integrity of the country. The basic responsibility of meeting the challenge must, therefore, remain with the states. Only when states find themselves at a loss, and seek legal or logistical assistance from the Centre, must the latter assume upon itself the responsibility of enacting appropriate laws and arranging required logistics to help states overcome the challenge. Thus, tackling terrorism undoubtedly remains a shared responsibility with the frontal charge resting with the states. For, “in India’s federal system, it is extremely important that local intelligence units and state police forces are put to good use to generate ‘intelligence from below.”

Even in case a more prominent role for the Centre is visualised in the anti-terror operations, such role is precisely that of coordination than control, given that the Constitution “provides for a framework unity where federal units have a coordinate authority and responsibility in the maintenance of national unity, security and integrity with the Centre”.17 Clearly, this coordinating role in no case should be construed as negating the prime responsibility of the states. As he explains eloquently: ...national coordination on counter terrorism does not mean usurping the authority of states but a consensual interaction which can mutually respect the constitutional domain of each structure of India’s federal polity. Coordination never means subordination or subjugation of sub-national jurisdiction to national jurisdiction. Contextually, coordination refers to a networked effort. Also, if terrorism is a shared responsibility, then no one can dispute states’ legitimate claims to decision by consensus.

He further adds:

Consensus never means subordination; cooperation does not mean subjugation of state policing to central policing.19 In view of so succinct normative explication of the nature of the role of Centre in tackling terrorism, it would be undesirable on the part of the Centre to usurp a prized constitutional domain of the states. Rather than taking proactive measures such as enactment of anti-terror laws, and creating new supranational intelligence and operational agencies, Centre needs to encourage and strengthen state endeavours in coping with terrorism by providing solid backup support and inputs to them. In crux, therefore, on matters of maintaining public order and exercising operational control over police, “the Union Government has only the enabling authority where consent of the state has to be constitutionally manufactured. Consent is the prerequisite of the working of federalism, and in the instant case states are protesting their federal right, i.e., consent right, therefore, objection to unilaterality of Centre’s decision”.20 Indeed, Centre does neither have pragmatic sanction nor conventional rationality in initiating any unilateral measure towards tackling terrorism. In case it discerns an inevitable contingency where a state government is unable to take on an imminent danger to public order, normally its response to such threats should strictly be in accordance with the overt consent of the state government. Only in the rarest of the rare cases where the conduct and disposition of the state government itself appears inimical to the general public order or the unity and integrity of the country, that Central Government may take unilateral action. But to deal with such cases, adequate arrangements have been made under emergency provisions of the Constitution. Hence, in the final analysis, the federal balance regarding public order and police indisputably remains tilted in favour of the states. Objectively disagreeable interpretation of constitutional provisions, both judicial and otherwise, in the matter need not be bestowed finality except in a constitutional emergency subject to judicial review, for, that might inflict irreparable dent on the vision of the founding fathers.

Trajectory of Anti-terror Laws

Given the mosaic of diversities and concomitant political, social, economic and ethnic cleavages that characterise India as a nation, it is not surprising to find genes of terrorism shortly after Independence. Owing to several internal as well as external factors, the emergence of the country as an independent nation was marred by the sowing of the seeds of terrorism in one form or the other, though the threat did not appear to be as severe as it has become in the contemporary times. The original field of terrorism in India happens to be the North-East where the urge for creation of certain separate or independent states led few people to pick up arms to wage an armed struggle against the Government of India.21 What has, however, been disquieting is the way the policy makers have sought to deal with the quandary by enacting one after another draconian laws. As a veteran critic of these laws suggests: A history of these legislations show that any Government of any political party and by whomsoever headed has a tendency to conjure up a sense of panic in order to make its position stronger, notwithstanding that the authors of these statutes were persons apparently committed to the freedom and rights of the individuals and the liberties of the citizens.22 In a way, the spree for passage of anti-terror laws and regulations began with the enactment of The Punjab Security of State Act and The Assam Maintenance of Public Order (Autonomous Districts) Act in 1953. This was followed by The Assam Disturbed Areas Act, 1955 and The Armed Forces (Special Powers) Regulation, and later, The Armed Forces (Assam and Manipur) Special Powers Act, 1958. Subsequent decades of 1960s and 1970s were witness to The Unlawful Activities (Prevention) Act, 1967 and The Maintenance of Internal Security Act, 1971. Enactment of sweeping legislations gained further momentum during 1980s and 1990s, each having a total of five and two such acts respectively, the most dreadful of which has been The Terrorist and Disruptive Activities (Prevention) Act, 1987. The cycle of such laws was assumed to be complete with the passage of the Prevention of Terrorism Act, 2002, followed by the National Investigation Agency (NIA) Act, 2008, that perfectly made India “a security state”.23 Nonetheless, what has revived the debate on ascertaining the scale of federal balance on anti-terror laws in the country has been the idea of establishment of the National Counter Terrorism Centre (NCTC). Circumstantial dynamics, nature and content of these laws from the perspective of their implications for Centre-state relations lead to certain unmistakable pointers that cannot be said to augur well for Indian federal polity. Curiously, the circumstances of enactment of many of these laws were portrayed in such a schematic way in the public domain as if the unity and integrity of the nation is going to shambles. For, “the image of the ‘nation under siege’ provides the handle by which the Centre seeks to wrest control in matters which are primarily seen as falling within the domain of the state...”.24 Moreover, the undue haste of getting these laws passed appeared so clamorous for their proponents that they did not have any qualm even in circumventing the ordinary procedure of parliamentary enactments like referral to select committees and clear passage by each house of parliament. Rather, an extraordinary joint session of Parliament seems to be the preferred course to get such legislations enacted, as in case of POTA, a move considered by many ‘as a subversion of federalism’25 due to the sidestepping of the vote of Rajya Sabha. What has, however, been most appalling is the judicial endorsement of constitutional validity of these federally upsetting laws that eventually tends to pave the way for gradual advance of Centre even in those areas that are constitutionally and conventionally reckoned as legitimate sphere of states. Apart from the legislative intent, the execution component of antiterror laws has also carried ominous portents for the federal matrix of Indian polity. In view of constitutional ordainment of law and order within the rubric of states competence, even the normal implementation of these laws is “to be largely determined by the specific political contexts of different states, the relationship of the ruling regime with that in the Centre, and the electoral calculus”.26 Such a seemingly propitious situation for the states is illusory given the provisions of Articles 256 and 257 of the Constitution that leave no scope for any aberrant conduct on the part of the states. Notwithstanding the apparent complexities in invoking the anti-terror laws in selective cases of political vendetta and witch hunting, what is probably more startling are the provisions and procedures relating to the withdrawal of these laws. On a matter pertaining to arbitrary withdrawal of the charges framed under such laws by a state government, the Supreme Court held that a state government is not within its powers to take a decision on a central law. As a result, consent of central government is mandatory on revocation of charges framed under the laws enacted by Parliament. In fine, thus, the underlying feature of anti-terror laws “is the extraordinary powers of initiation of proceedings that it gives to the executive, making it the sole decision-making agency in the matter... This prerogative of the executive has played itself out in ways that shows interplay between legality and politics, with significant ramifications for coalition politics and federal principles”.27 On the whole, the trajectory of anti-terror laws demonstrates an unambiguous ‘quest for hegemonic centralism’28 that presumably seeks to alter the sensitive federal balance in the name of national security and fight against terror.

Defending the Turf

Attempts at undermining the vision of the founders and fine constitutional provisions governing Centre-state administrative relations have been in vogue for long. But states have been equally resolute in defending their constitutional turf. Unsurprisingly, for each of the arguments made to shore up Centre’s case for a proactive and unilateral action in the domain of ambivalent matters listed in State List, particularly public order and police, equally forceful counter arguments have been advanced by states. For instance, during 1960s when a few states witnessed the advent of communist governments, Central Government sought to appropriate states eminent domain of public order. It argued that given the pro-workers outlook of these governments, they might not be able to maintain public order and protect the central offices and properties located in the states. Hence, Centre gets a consequent right to unilaterally dispatch Central Paramilitary forces to a state to protect its offices and establishments. However, such a move was countered with strident argument that Centre had no business of anticipating deterioration of public order in a state. Moreover, it must obtain the consent of the state government before sending central forces to a state. Since no consent of the state government was sought before dispatching central forces to Kerala, it was considered as an encroachment upon the states’ jurisdiction.29 Conceptually, an implied notion of distinct territoriality is inherent in each state’s jurisdiction over the subject of public order. In other words, each state is endowed with its authority to maintain public order in specified geographical area forming the physical sphere of the state. On the contrary, jurisdiction of Centre spans over the whole geographical regions forming part of India. In such marked division of territorial domains, states have been steadfast in guarding their valued spatial possessions. The major bone of contention between Centre and states in this regard has been the occasional moves on the part of the former to create intelligence or security agencies having national or interstate operational jurisdictions.

This has been considered as an affront to the exclusive and cherished territorial reach of the state governments. It has been argued that setting up of interstate intelligence units under central agencies is tantamount to usurping the legitimate rights of state governments.30 Probably, such vociferous postures of the states might have precisely been the reason that many, if not all, of the anti-terror laws enacted by the Centre pertained to specified regions or states. Moreover, even the laws that have been passed with national or interstate coverage, the implementation of such laws have been left to the discretion of the state governments.

As this long term tacit understanding between Centre and states is attempted to be ruptured now, states have stood in vehement opposition to these moves. A fine but sure intrusion in their domain that states have remonstrated in recent times pertains to the power of central agencies to carry out clandestine operations of search and arrest in their geographical spheres. In fact, central intelligence and security agencies have continuously been carrying out surreptitious operations in various parts of the country to detect anti-national activities and nab people involved in such activities. But as a matter of operational convenience, if not federal principle, in all such operations, the local intelligence and security agencies have invariably been taken into prior confidence. However, this conventional prudence in anti-terror operations has sought to be sacrificed by law to arrogance of the central agencies like NIA and the proposed NCTC. Vested with sweeping powers of search and arrest, these agencies are supranational in reach and unaccountable to the constitutional functionaries of the government. What has, however, not gone down well with the states are the federally stinging stipulations that empower the officers of these agencies to carry out their covert operations of search, seizure and arrest of papers, properties and persons without any prior information or consent of the state government. Clearly, this has stoutly been opposed by the states on the plea that “the primary concern of the states lies in the modalities and details of the operational coordination with the NCTC. The need to make the states an effective stakeholder in all aspects of counterterrorism domain and in the proposed NCTC format was a general view expressed by most states”.

In brief, despite being foundation stones of the federation, regrettably, states have gradually been divested of most, if not all, of their eminent domains by appropriation of the constitutional provisions by successive central governments. Presently, the only vital subjects they are left with are public order and police. Hence, it is natural for them to be extremely agitated when sinister plans are hatched to take even that away from them. As a stakeholder articulates grudgingly: Excessive interference from the Centre in matters of day-to-day governance is against the spirit of the Constitution. Over the decades subsequent to independence, central government has slowly but surely extended its control over a large number of developmental and fiscal activities in the states ostensibly for serving larger public interest. The significant area of control left with the states under the Constitution, i.e. law and order and policing, is now increasingly under attack from the Centre.32 Thus, the states seem to have become excessively vigilant in warding off any more central initiative in disenfranchising them from their constitutional privileges. Grave challenges falling within their domains like terrorism do not propitiate central intrusion in their turfs. At the most, what they are likely to oblige is a coordinating role for the Centre, and that too with their willing consent and amiable cooperation. To an extent this new reality is an antifact of federal coalitional governance, in which regional parties have had a decisive balancing role in formation and termination of governments in New Delhi, the interpretation offered here may well be contested in a changed balance of political forces in the national and state party systems.

Working of Centre-State Relations

Contestations on the appropriate constitutional mandate and operational command regarding public order and police have been part of federal discourse in India for long. Given the dominance of politics than constitutional precepts in demarcating the functional authority over these items, early years of working of Indian federalism did not witness much acrimony over the issue. For, prevalence of Congress governments both at Centre and states ensured a harmonious and respectful attitude towards each other. Hence, despite the occurrence of a number of turbulent and violent incidents in states, the situation was managed with cooperation and coordinated action on part of the both Centre and states concerned. But the things started taking an ugly turn with the transformation in the political texture of some state governments. As a result, the much required cordiality and considerate outlook between the Centre and those states evaporated, and the fine constitutional edifice of fledging and delicate Centre-state relations appeared set for tumult. The first standoff on the matter came in 1968 when the Central Government employees called a strike in Kerala.

Taking the strike as a routine matter, E. M. S. Namboodiripad led Kerala government did not foresee any problems to law and order. But the Central Government dispatched Central Reserve Police units to Kerala for protection of its offices and property from the striking employees.33 However, the central action was chided by the state government on the ground that since Centre sent its forces without consent of the state, it amounted to undue interference in the jurisdiction of the state. Interestingly, in the field of anti-terror legislation, right from the independence till a long time, centre-state relations did not witness much acrimony despite the enactment of a number of such legislations by Parliament. The reasons for smooth sailing of these laws might have been two-fold. One, most, if not all, of such legal instruments were enacted on the basis of the felt needs of the time. What is of prime significance in this context is that the need and urgency of these laws were equally shared by both Centre and states.

Two, notwithstanding their enactment by Parliament, the basic responsibility of execution of these laws rested with the state governments, with Centre providing only back up strategic and logistical support. Thus, the crucial factor during this time had been strong sense of mutual understanding and cooperation between the Centre and states in dealing with the challenges to public order and national security. Neither any attempt seemed to be made by the Centre to debilitate the distinguished constitutional domain of the states, nor were the states suspicious of the Centre’s move so as to mount formidable challenge to that. Political dynamics of the time might have a role to play, but what appeared to have carried the day has been a genuine shared concern on the part of both Centre and states to deal with terrorist and disruptive activities in a truly cooperative, collective and coordinated manner. Nonetheless, the first redoubtable attempt at dislocating the delicate federal balance vis-a-vis public order and police was made in 1976 during peak of the internal emergency clamped by Indira Gandhi. Unfortunately, this was the time when the virtues like democracy and federalism became alien to Indian polity. So, while authoritarianism became the sacred mantra of governance, sweeping run of the central dictates all over the country without any hitch turned out to be the paramount desire of the government. Moreover, instead of taking recourse to persuasive and democratic methods of securing obedience of the people, the more direct and stern methods like use of police and paramilitary forces were heavily relied on. In such a scenario, the placement of vital subjects like public order and police in the State List seemed extremely awkward for the Centre. Had sanity not prevailed in certain quarters of the government, the two subjects would have tersely been transferred from State List to either Union or the Concurrent List without any murmur from the states. But presumably an understanding dawned on the Centre that its purpose would be served just by inserting certain qualifying provisos in the two subjects. Accordingly, through Constitution (42nd Amendment) Act, 1976, such provisos were superimposed on the two subjects that their nature and content were drastically altered. Thus, severe erosion of states’ exclusive jurisdiction on the two crucial subjects not only left them in a precarious situation, it also afforded jurisprudential rationale to courts to interpret the said provisions in favour of the Centre. In the post-emergency period, the overall political texture remained fluid in the country. Hence, no major volatility was discernible in the federal matrix. However, with the growing sting of terrorism in time and space, a need was felt by the Centre to create certain supranational antiterror bodies like the NIA and NCTC that turned into the latest round of acrimony between the two layers of governments. In this spat, despite having legal edge, Centre decided not to bulldoze the states owing to its precarious political position. Moreover, what appeared remarkable has been the collective vociferousness and coordinated strategy of states to guard their fortress.

Way Ahead

The course of Centre-state relations vis-a-vis measures against terrorist and allied subversive activities, like all other aspects, has arguably been influenced more by political dynamics than imperatives of mutual cooperation, coordination and support. It is precisely for this reason that the trajectory of anti-terror measures has been marked more by the turf war between Centre and states than by evolving a foolproof framework and strategy that would have wiped out terrorism from the country. Given the overall centrist disposition of the Constitution, it is obviously the Centre that has been destined to gain an upper hand in the standoff. But what transformed the basic contours of Centre-state administrative relations beyond even the imagination of the founding fathers has been the fundamental changes effected in the provisions ordaining primary role to the states in the domain of public order and police. The judicial pronouncements guaranteeing almost unfettered powers to Centre in the area of anti-terror measures sprang presumably out of the retro-fitments carried out in the relevant provisions during emergency. Thus, in a sphere that has perfectly been assumed to be the core concern of states in the original constitutional scheme ultimately turned out to be completely out of their reach. Nevertheless, effective handling of the menace of terrorism remains an unprecedented challenge not only to the unity and integrity of the nation but also to the mundane realm of public order and tranquil life of the common people. Despite its unrestrained powers and enthusiastic activism, Centre might never be able to tackle terrorism single-handedly. Being the first response point, states will have to be involved in that endeavour. At the outset, tackling terrorism need not turn out to be a turf war between the two constituent stakeholders of the Indian federation. Complexity of the conundrum is that while the ultimate accountability to cope up with the challenge of terrorism is that of the Centre, it is the spatial domain under immediate access of states that becomes the theatre of mindless violence. Therefore, it is out of question to conceive that terrorism can be tackled by either of the two exclusively. Consequently, what seems sine qua non is a cooperative, coordinated and strategically supplemented approach of eliminating terrorism involving both the Centre and states. Clearly, the two levels of governments must perform the tasks for which they are best suited. With a view to nip in the bud the cache and cadre of the terrorists, Centre needs to be best equipped in intelligence and connoisseur activities. Logically, therefore, field operations to bust the terror plans and nab terror operatives should lie with the states. Reports suggest that all-encompassing central anti-terror agencies like NIA have not been able to serve the purpose substantially.34 Experiences elsewhere in the world have also shown that remarkable positive changes in the antiterror operations have been brought about by ensuring a collaborative and cooperative relationship between the national intelligence agencies and the local police.35 Hence, the need for a dedicated national intelligence unit in the overall counter terror operations cannot be ruled out. But at the same time, such a move must not only be permitted to be construed as undue penetration in the conventional domain of the state, efforts must also be made to remove their genuine apprehensions on such moves.36 In any earnest attempt to stamp out the strands of terrorism, manifest need for a sound legal framework has long been advocated. But such legal framework needn’t be reduced to the modicum of linear and frictional bodies like the NIA. Instead, a comprehensive legislative enactment stipulating the role and responsibilities of various stakeholders and operating units of the federal system must be put in place. At the core of such a framework may lay a nodal anti-terror agency. Indeed, such an agency must be formed after comprehensive consultation with and taking into confidence all the states as well. Above all, in no way, the central endeavour at anti-terror measures may look like creeping into the prime domain of the states by the Centre. Being the dominant partner in the federal set up, the onus of responsibility in this regard rests with the Centre to be considerate and sensitive to the concerns and apprehensions of the states. Once the infallible mantra of mutual trust and cooperation between the two layers of the federation is operationalised, anti-terror measures are in all probability likely to prove a nemesis of terrorism rather than the federal balance of the country.

(Courtesy- Rajendra Kumar Pandey)

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