Federalism And Public Security In India
The National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order, 2012, proposing to establish a new body under the Intelligence Bureau to coordinate the anti-terrorism efforts of the Union government with and among the States, has elicited strong discordant voices from several non-Congress ruled States. The meeting organised by Union Home Minister P Chidambaram on Monday April 16, 2012 witnessed divergent and dissonant voices from Tamil Nadu Chief Minister Jayalalitha, Bihar Chief Minister Nitish Kumar, Odisha Chief Minister Naveen Patnaik and Gujarat Chief Minister Narendra Modi leading the anti-NCTC band. West Bengal Chief Minister Mamata Banerjee, an ally of the UPA, thought it too frivolous a meeting for her presence, she sent her Finance Minister Amit Mitra to proxy for her with a speech that he read out.
These CMs in fact have been expressing their disagreements in any case much before the meeting organised by the Home Minister. Mamata Banerjee has continued to be among the shrillest critics of any central initiative, whether or not it infringes ‘federalism’ and States’ domain. To be fair to the States, it must be underlined that this consultation was not planned initially and the Union Home Ministry not only drafted this order, it also decided to promulgate this order in March 2012. The Chief Ministers’ protests were clear and loud that it violated the principle of division of powers enshrined in the Constitution of India and was an infringement of their constitutionally ordained police powers. Though Prime Minister Dr. Manmohan Singh told the Chief Ministers that the idea was to create a framework for the Union and the States to work together, it did not satisfy those who had reservations.
In this context, it is also worthwhile to mention that the similar set of objections was raised on proposed changes in the Border Security Force (BSF) Act and Railway Protection Force (RPF) Act. In the former, the change being proposed is that the BSF could be deployed anywhere in the country in aid of civil authorities rather than only in border areas. In the latter, it is proposed to give the RPF the powers to arrest miscreants during their patrolling of railway properties. Currently, they are supposed to hand over the arrestees to the Government Railway Police (GRP), which is part of respective State government’s police organisation.
It is also worthwhile to recall that the controversy over Armed Forces Special Powers Act (AFSPA) in India’s North East and Jammu and Kashmir is still alive. Aside from Irom Sharmila’s ‘force-fed’ fast in Manipur since November 2000, there have been stirrings in the Kashmir valley too and state Chief Minister raised this matter in the Union Home Minister’s meeting on the NCTC.
Obviously, issues of public security involving States are drawing dissidence amongst the State governments, which the Union Government is being compelled to take note of. The question of state autonomy, more particularly its constitutional powers in the domain of policing and law and order, is coming in conflict with the Union Government’s perception of emerging federal role in new areas of public security such as terrorism, insurgency and protection of federal property such as the railways. Even while the State governments, more particularly those ruled by parties other than the ruling configuration at the Centre, have their right to protect their domain from federal intrusions, and the Union Government too is within its rights to take appropriate actions within the constitutional boundaries, three important questions arise. First, whether the parties in India should not develop a bipartisan approach to serious questions affecting the nation, increasingly turning multidimensional public security is an important one. Second, whether or not the Union Government should develop appropriate consultative mechanisms under the umbrella of the Inter State Council Secretariat as a continuous process on issues of federal nature in order to develop bipartisanism and give India’s federal façade more substantive foundation. Third, should the states too not develop a more constructive approach to critical issues of federal nature, rather than trying to score a brownie point or two against the Central Government just because another party or conglomeration is in power at the Raisina Hill?
The NCTC Debate
The debate needs to be seen in the perspective of issues that have been thrown open since the infamous 26/11 carnage in Mumbai in 2008. Soon after, India’s first federal counter terrorism organisation, the National Investigation Agency, was constituted. It indeed deserves a performance appraisal since terrorism and insurgency are dynamic situation. What then is the need to have a NCTC, which appears inspired by an agency of same name in US that was created post 9/11, at this stage? Why did the Union Home Minister stir a controversy when incidence of terrorism has ebbed? Should this have been a unilateral move? Should the states have reacted the way they did, without any concrete alternative suggestion?
Even as the horrors of 26/11 unfolded in Mumbai, exposing a vast hole in India’s internal security architecture involving the Mumbai police and a host of Union agencies before, during and after the event, the second Centre State Commission and its Task Forces were at work. Task Force 5 on ‘Criminal Justice, National Security and Centre-State Cooperation’ (http://interstatecouncil.nic.in/Suppl_VolI_Task_Forces.pdf) deliberated on the issue. Defining internal security as ‘security against threats faced by a country within its national borders, either caused by inner political turmoil, or provoked, prompted or proxied by an enemy country, perpetrated even by such groups that use a failed, failing or weak state, causing insurgency, terrorism or any other subversive acts that target innocent citizens, cause animosity between and amongst groups of citizens and communities intended to cause or causing violence, destroy or attempt to destroy public and private establishment(.)’, the Task Force underlined the need for a specialized agency. It said: ‘While such threats cannot be defined as falling either within the traditional law and order realm or military threats from across the border, they cause both kinds of threats simultaneously, aimed at causing detriment to societal peace and national security. Naturally, they cause a peculiar dilemma for an affected state and its agencies. This necessitates a clearly defined and delineated threat perception and a coordinated, synergized strategy implemented through a designated agency that is mandated to create a structure of cooperation with other concerned departments.’ It went on to propose a National Counter Terrorism Agency as a federal body to coordinate efforts in dealing with terrorism. It proposed that this Agency ‘should have criminal jurisdiction over all terrorist crimes and other scheduled offences covered in the NIA Act, as also activities like planning, preparation, financing, aiding, abetment etc. connected thereto’. However, it also prudently proposed as its duties (a) (t)o coordinate the work of, and function in tandem with, the state law enforcement and intelligence agencies, to prevent, and to take action against those who commit, the specified offences’; and (b) ‘(t)o provide the necessary assistance, support and guidance to the state agencies, in law enforcement functions relating to the specified crimes’. Obviously, federal character was kept in mind.
The proposed NCTC purported to be created in exercise of the Union Government’s executive powers under Article 73 of the Constitution that entitles its domain to States too, also considers it ‘necessary and desirable that the proposed National Counter Terrorism Centre should not duplicate the roles of other agencies and that it should work through the existing agencies in the country(.)’. This Centre has been put under the Intelligence Bureau and shall be headed by an officer titled Director but of the rank of Additional Director IB. Though the Director NCTC is proposed to be Distinguished Authority under section 2(e) of the UAPA, 1967, there is ambiguity regarding the linkage between the Directors of IB and NCTC. Clauses 3.2 ‘power to arrest and the power to search under Section 43A’ of the UAPA, 3.5 empowering it to seek information and 5.1 directing all civil authorities of the Union and the States to aid the NCTC appear to be what are causing consternation amongst the States.
BSF and RPF
Border Security Force was created in the wake of the Indo-Pak war of 1965 and is mandated to be deployed for the security of the borders across the country. Given the fact that in the past few years the Government of India had had to deploy the BSF in counter insurgency operations and for internal security duties, an amendment has been proposed in the Act to make it available for deployment for internal security duties in aid of civil authorities. The Border Security Force (Amendment) Bill, 2011 has been put through Department-Related Parliamentary Standing Committee on Home Affairs, where the Government had reply to probing questions on why this amendment is needed. The general tenor of the arguments put forward is that like the CRPF, the BSF too would be deployed only on demand of States in aid of civil authorities. Generally, there was no proposal for suo-motu deployment of the BSF. However, the States continue to be restive.
Railway Protection Force was created in 1957 for the protection of railway properties across the country under the Ministry of Railways. It gives powers to its officers to arrest anyone causing harm to railway properties and search without warrant. However, under the existing Act, once a person has been arrested, he has to be handed over to the local police, in case of railways the GRP, at the shortest possible time. However, finding the process not sufficiently conducive for securing the railways, the Union Government is proposing an amendment that would give the officers of the RPF to not only arrest, but they would also have the powers of the SHO of a police station and act according to the Criminal Procedure Code in arresting, filing FIR and so on. This has naturally not gone to well with the State governments, who are crying hoarse over their powers being infringed and federalism in danger. Railway Ministry being under the All India Trinamool Congress, party chief and West Bengal Chief Minister Mamata Banerjee has directed the Railway Minister not to pursue this amendment.
The Union Government appears to have beaten a hasty retreat and clarified that the proposed amendments would be taken further only if States want them.
Issues at Hand
However, several issues arising out of these three initiatives remain unattended at both the ends. Both the timing and the structure of the NCTC are questionable. It has been considerable time since the second Centre State Commission submitted its report, which was carried out at considerable cost. Aside from the main report, there is a wealth of analyses in Task Force Reports and research studies. The Task Force 5 on internal security not only attempted to define internal security, a first in the country, it also proposed an internal security doctrine, which needs to be sufficiently debated and tweaked if necessary. The NCTA proposed by it is a comprehensive one and keeps the sensitivities of the States too in mind. The question of accountability missing in the proposed NCTC too is taken care of in the NCTA.
The objections to the RPF amendment Act are of substantive nature as two policing authorities at the same level would lead to jurisdictional clashes. The BSF amendment Act does not appear to be a major federal issue. It appears just a resource multiplier to the CRPF and State Armed and reserve police. Yet, there is no harm discussing it.
Interestingly, the Chief Ministers objecting to these three have only been objecting to the Centre’s move and crying hoarse over the infringement of their rights and powers. Each one of these, more particularly the question of counter terrorism, needed an alternative State version. The agency that would come into existence would not be scrapped should the UPA lose the next election. Similarly, both the BSF and RPF needed discussion rather than objection. Chief Ministers and their governments are not part of or an opposition to the Union Government or the party ruling it, they are part of the federal design created by the Constitution of India. Thus, they need to discuss the proposals and offer options to solve a problem that is spurring the Centre to a particular move instead of just summarily rejecting it.
It is surprising that the Union Government discussed the issues only when the States objected. Had the Prime Minister taken initiative to put these proposals through the Inter State Council Secretariat, it would have added sheen to his leadership and a sense of purpose to these initiatives.
By Ajay K Mehra