NCTC - How Arrogance can Defeat Co-Operation

The Union Government’s move to establish the National Counter Terrorism Centre (NCTC) with the power to undertake search and seizure operations and to arrest persons who plan and execute terrorist acts, has raised the hackles of over a dozen chief ministers. At the outset, one may well wonder as to why the chief ministers are wary of this anti-terrorism initiative, when the Union Government and all the state governments repeatedly assert their resolve to unitedly tackle this menace that threatens the unity and integrity of India. On closer examination, one realizes that the problem does not lie in the idea of having a fully empowered counter-terrorism agency at the national level, but in the manner in which the union government and more particularly, the Union Home Ministry has sought to implement the idea.

There is a national consensus on the need for strong, coordinated action to prevent terrorist acts. All that the Union Home Ministry needed to do was to consult the states on the establishment of the NCTC and the empowerment of such a centre, instead of unilaterally announcing its decision. Obviously, the states were taken by surprise and were also put off by the “I know what is good for you” approach of the Home Ministry. This has resulted in such hostility that the establishment of the NCTC has been opposed by over a dozen chief ministers from across the political spectrum. The opponents include Odesha Chief Minister Naveen Patnaik, Bihar Chief Minister Nitish Kumar, Gujarat Chief Minister Narendra Modi and a host of others. It also includes chief ministers Like Ms.Mamata Bannerjee of West Bengal, who are part of the ruling United Progressive Alliance (UPA) at the Centre.

The attitude of the Union Government is inexplicable, because this is an issue on which one would expect the Prime Minister and the Home Minister to walk the extra mile and take every one along. Instead, the government has behaved as if this is still the era of single-party rule and it can ram down its decisions on the States, without consultation or notice. Over the years, thousands of citizens have died due to acts of terrorism and all states and political parties have a stake in rooting out this menace. Since the political class is wholeheartedly committed to stamping out terrorism, all that the Home Ministry had to do was to consult all stake holders. But, instead of bringing everyone on board, the ministry has generated divisiveness and displayed contempt for the intelligence and sagacity of several chief ministers, who have as much or even more political and administrative experience that ministers in the Union Government.

The objections from the states are manifold, but they all hinge on just one issue – that the Constitution has ordained that “public order” and “police” shall be exclusively within the domain of the states and that the Union cannot be allowed to intrude into this space.
The legislative powers of the Union and the States are delineated in three lists – the Union List, the State List and the concurrent List – in the Seventh Schedule in the Constitution. Entry 1 in the State List is ‘Public Order” (excluding use of the Union forces ‘in aid of the civil power”). Entry 2 in this list says: “Police (including railway and village police) subject to provisions in Entry 2A of List I).

For long years, entry 2 in the Union List placed “naval, military and air forces” and “any other armed forces of the Union” wholly under the jurisdiction of the Union Government. In 1976, the Constitution (42 Amendment) Act added entry 2A to the Union List. This entry gave the Union Government the power regarding “Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment”.

The Sarkaria Commission, which examined Centre-State relations said: “what was implicit in Entry 2 was later made explicit in Entry 2A. The only difference is that , under the latter entry, not only an armed force of the Union but also a force which is not an armed force (e.g., a force of technical experts), and which is subject to the control of the Union, may be deployed in a State in aid of the civil power”. This seems to indicate that the Commission had envisaged creation of Union forces (like NCTC) other than paramilitary forces like the Border Security Force or the Central Reserve Police Force.

A plain reading of the entries in the Union and State Lists in the Seventh Schedule of the Constitution implies that the deployment of Union forces in a State ought to happen only “in aid of civil power”, meaning thereby that such deployment ought to occur only when a state seeks such “aid” from the Union. In their memoranda, some states told the Sarkaria Commission that Union Forces can come in only on the request of a state. The Constitution says the Union can send such forces to “aid” the state. Nobody should have the power to thrust “aid” on another, was the argument.

Although the Sarkaria Commission comes out strongly in favour of the states and is often quoted by the votaries of stronger states and genuine federalism, this commission tends to tilt in favour of the Union when it comes to dealing with armed aggression, internal disturbance etc. Specific to these provisions, the Commission has said that there could be situations where a state is unwilling to suppress an internal disturbance or seek the help of the forces of the Union. In such situations, the Union Government, given its constitutional obligation, “cannot be a silent spectator”. The Union Government can deploy its armed forces suo motu to deal with the disturbance and restore public order. “The phrase “in aid of the civil power” in Entry 2A of List I and Entry I in List II signifies that the deployment is in aid of the instrumentalities of the State charged with the maintenance of Public Order. It does not necessarily imply that such deployment should take place only at the request of the State Government”.

Dealing with “deployment of union armed forces in a state for public order duties” in Chapter VII of its report, the Commission states categorically: “The superintendence, control and administration of a force (whether armed or otherwise) of the Union has necessarily to vest in the Union Government. While on deployment in a state in aid of the civil power, the force is subject to the command, supervision, control and direction of such authorities and officers as may be appointed by the Union Government. As such, the powers, jurisdiction, privileges and liabilities of the members of the force while on such deployment can be prescribed by the Union alone. These provide the requisite statutory cover to the various actions that the members of the force have to take while carrying out their duties and responsibilities. Some states had argued before the Sarkaria Commission that entry 2A in the Union List (List I) in the Seventh Schedule should be amended to curtail the power of the Union Government vis-à-vis central forces. This was rejected by Justice Sarkaria. The commission said “Deletion of the expression ‘powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment’ from entry 2A of list I will create an operational vacuum”. The commission was also of the view that the terms and conditions on which a force of the Union is deployed in a state in aid of civil power “have also to be determined by the Union”.

However, the commission puts in a caveat while granting these powers to the Union. It says the union cannot assume sole responsibility for dealing with internal disturbance “by superseding or excluding the state police and other authorities responsible for maintenance of public order”. Nor should the Union Government deploy its forces in contravention of the wishes of the state government, to deal with “relatively less serious public order problems”. Again, while discussing the deployment of paramilitary forces like the BSF, the commission said it must be ensured that “the various connected police functions are performed by members of the state police ……” When a Union armed force is deployed in aid of civil power, it “has none of the substantive characteristics of a police force”. The commission said “The state police continues to be responsible for maintaining public order and there can be no question of the Border Security Force or the Army encroaching on the jurisdiction and powers of the state government either in the field of `police’ or ‘public order’”.

Coming back to the Union Government’s Order announcing its decision to establish the NCTC, the chief ministers have objected to the power vested in NCTC under Chapter VII of the Unlawful Activities (Prevention) Act, 1967. This is a strong law which seeks to punish those who challenge the sovereignty and territorial integrity of India or cause disaffection against the country through acts of terror or formation of unlawful associations to achieve these purposes. These sections empower a central force to arrest suspects and conduct search and seizure operations. They also outline the procedure that a central force must follow which taking such action. Sections 43 A of this Act says any officer of the Designated Authority may authorise any officer subordinate to him to arrest a person or search a building. The chief ministers say that these provisions will undermine the constitutional right of the states to handle “public Order” and “police”, items which are exclusively in their turf. They feel that this is a cunning ploy by the Union Government to step into the domain of the states. However, this argument is only partly correct because it does not acknowledge the fact that the NCTC is also bound by the provision under Section 43 B, which says every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer in charge of the nearest police station. The officer in-charge of the police station is then expected to take necessary action under the provisions of the Criminal Procedure Code, so long as those provisions are not inconsistent with the Unlawful Activities (Prevention) Act.

Section 43 B has to be read in conjunction with 43 A, because the latter is not a stand alone provision. Every person arrested under 43 A “shall” be forwarded to the officer incharge of the nearest police station. This limits or even prevents the possibility of the NCTC carrying out arrest and search operations to the complete exclusion of the local authorities in states.

In other words, there does not appear to be an unbridgeable chasm between the view points of the Union and the States in this matter. But a degree of distrust has crept in because of the clumsy and haughty way in which the Union Government has sought to implement this idea. Much of this distrust can be removed if only the promoters of NCTC acknowledge that the chief ministers too have as much, if not more, concern for national security and unity.

The current face-off is strange for yet another reason. For over a quarter century those who argue for a more federal polity and stronger states have always sworn by the recommendations of the Sarkaria Commission, which examined Centre-State relations in the mid-1980s. On many key issues, this commission upheld the power of the states and came down heavily on the conduct of the Union Government and the frequency with which it trampled on the rights of the states. The commission was particularly harsh on the Union Government for the reckless use of Article 356 to dismiss state governments and for the manner in which it appointed Governors. Many of these recommendations have since become law after the Supreme Court endorsed them wholeheartedly in what is known as the Bommai Case. The commission’s report is therefore the Bible for all those who wish to see stronger states. Yet, this very commission, as explained earlier, is of the view that the Union should be fully empowered to carry out certain operations in the states in certain circumstances. If only the Union Government displayed greater sensitivity to the concerns of the states, it could fall back on the very book that the states swear by, to establish the NCTC.

As can be seen, the principles enunciated by the Sarkaria Commission in Chapter VII of its report are in line with the provisions in Section 43A and Section 43 B of the Unlawful Activities (Prevention) Act. Needless to say, all that is needed is a harmonious construction of these two recommendations in order to enable the NCTC to operate effectively and yet remain within the constitutional scheme.

Apart from the controversy surrounding the creation of NCTC, there is another issue brewing alongside this one, relating to the powers of the Railway Protection Force (RPF). Until now crimes committed on trains and in railway stations are handled by the Government Railway Police (GRP) which is controlled by state governments. The RPF’s responsibility is limited to protection of railway property. The Union now proposes to amend the Railway Protection Force Act, 1957, in order to arm the RPF with policing powers including the power to investigate crimes such as robberies, dacoities etc on trains and in railway stations and to edge out the GRP. The Railway Minister Mr.Dinesh Trivedi seems to believe that this dual responsibility is not a good idea. The Railways feel that there should be a uniform force to protect the Railways and passengers.

Coming as it did on the heels of the NCTC controversy; it has naturally raised the hackles of some chief ministers. The Gujarat Chief Minister, Mr.Narendra Modi, has taken the lead on this issue. He has said that the Union Government has gone “berserk” and it is “trampling over the jurisdiction of states”. In his view, the move to grant policing powers to the RPF, a paramilitary force, is not in consonance with Article 246 of the Constitution. Article 246 (3) gives the states the exclusive power to make laws in respect of all items listed in the State List in the Seventh Schedule. Entry 2 in the State List says “Police (including railway and village police)……………” Therefore, this will amount to usurping the power of the state legislature. Further, since “public order” and “police” are state subjects, the proposed amendment amounts to creating “a state within a state”.

The Sarkaria Commission is of the view that deployment of RPF, which became an armed force in 1985, for protection of railway property is legitimate. The commission says, apart from dealing with situations like internal disturbance etc, there is another situation where in the Union Government may deploy its armed forces, “even suo motu”. That is when Union property (installations, factories, buildings etc) situated in a state needs special protection “which the State Government is not able to provide”. The commission has said that “the protection of property is a function which is ancillary and incidental to the relevant subjects in the Union List to which the ownership of the property pertains. Such subjects would be Railways, Ports, Airways, Posts and Telegraphs.

Even more significant is the commission’s views on the powers that can be exercised by such armed forces. It says “the Union Government is not precluded from conferring on the members of the armed forces so deployed, such powers of a police officer as would be essential for the purpose of carrying out the function”. Further, “The members of the armed force can then exercise these powers not only for the protection of Union property but also for dealing with the public disorder in the proximity of the property if it directly or indirectly endangers the safety of the property or the employees working there. It has to be noted that conferment of such powers is only incidental to the implementation of this main purpose, in this case, the protection of Union property”. Also ….exercise of such powers does not mean superseding or excluding the jurisdiction of the state police”.

These observations indeed amount to a carte blanche for deployment of RPF in times of disturbance and specifically for the purpose of safeguarding railway property. But, as the commission has repeatedly noted, these are options that the Union Government can exercise in extreme situations. In the normal course, the Union must consult with the states and armed forces of the Union should not take over policing responsibilities, which is the responsibility of the local administration. To that extent, the proposed amendment to the RPF Act, 1957 violates the recommendations of the Sarkaria Commission.

The RPF Act amendment proposal could become another contentious Centre-State issue in the coming days. Apart from Mr.Modi, the other chief ministers who have objected to the move are the Odisha Chief Minister Mr.Naveen Patnaik and the Tamil Nadu Chief Minister J.Jayalkalithaa. The Railway Minister feels that if the Act is not amended to empower the RPF, “it will dilute the Railways’ powers in protecting its properties and passengers”. However, sensing trouble, he has chosen to avoid a confrontation approach with the states and declared that the RPF Act will not be amended “if the states do not want it”.

The Union Home Ministry has only tied itself in knots because it has failed to observe basic etiquette while dealing with states, many of which are today run by very efficient and much-admired chief ministers. The Home Minister Mr.P.Chidambaram has said that counter-terrorism is of national importance and therefore, it must be kept out of parties and politics. “All of us are agreed that terrorism is a grave threat to our country and our way of life. Countering terrorism is, therefore, a shared responsibility” he says.If this is indeed a shared responsibility, why were chief ministers not consulted. Why did the Union Government act unilaterally? Mr.Arun Jaitley, the Leader of the Opposition in the Rajya Sabha summed up the attitude of the Union Government leading to this controversy when he said “statecraft and statesmanship have become alien to this government”. That is why, instead of forging a united front against terror, the Union Government has ended up promoting divisiveness. It must quickly make amends.