The discussion on Centre-State Relations could not have come at a more opportune time. The country has been through nearly six decades of independence during which every sinew of it being a sovereign, socialist, secular, and democratic republic has been tested and stretched. That it has survived has surprised a lot of people worldwide but it is time to face and address certain harsh realities. Also because the changes and frictions that are taking place both globally and in our neighbourhood have come to have an urgent bearing on us forcing us to take stock of the situation in order to measure up to these challenges.
The terms of reference of the Justice Punchi Commission are comprehensive and are a step forward from the Justice Sarkaria Commission set up in 1983. Unfortunately, despite the work put in by the Justice Sarkaria Commission, not much headway was made in facilitating better Centre-State relations. The relationship is like the typical Indian Mother-in-law and Daughters-in-law, where both think they are giving in a lot and the other side is not reciprocating. The very fact that the Government has had to appoint yet another Commission to deal with the issue within 20 years of the earlier Commission submitting its report shows that most of the issues that prompted the setting up of the earlier Commission have remained. This I suppose was primarily because of a lack of consensus at the national level. From the work that is being put in by this Commission, I am sure the report that will be submitted will help us resolve many of the contentious issues facing us. But, I hope that the recommendations of this Commission too don't end up the way the earlier Commission's views were.
This can be avoided, if the Commission were to divide its recommendations in two parts. One, the recommendations that require immediate enforcement. This could include - if you refer to the extract of the notification which is available here – issues like the role, responsibility and jurisdiction of the Centre vis-à-vis States during major and prolonged outbreaks of communal and caste violence. This category could also include issues like the need to set up a Central Law Enforcement Agency and deployment of Central forces in states. All these are interlinked and can't be seen in isolation and I will dwell on this in the next few minutes. These are imperatives that the global, regional and our own internal situation warrants. I remember that the Justice Sarkaria Commission too had dealt with some of these issues, though the issue of a federal agency was not a part of its terms of reference as terrorism mercifully was not then on the radar. Justice Sarkaria had in fact recommended that the Centre should consult the states before rushing its armed forces to a state, if the latter had not made a request for the same. That was perhaps for the best of times while now we are trying to come to terms with the worst of times.
The second category could include those recommendations, which have an even greater bearing on the way our Constitution has been framed. These relate to fiscal matters and other issues like river waters and minerals. To look into these the Commission may think of suggesting the constitution of a consultative legislative body on the lines of the mini-Constituent Assembly that framed the Constitution after Independence. This will ensure that the work of the Commission would be taken to its logical conclusion in Parliament. Otherwise, its recommendations, howsoever important they be, would be subject to the vagaries of the electoral outcome and political pulls and pressures.
I feel that the proposal to set up a Central Law Enforcement Agency to take up suo motu investigation of crimes having inter-state and / or international ramifications with serious implications on national security would be only a half-way house. This is primarily for two reasons:
One, what you require is not just a Central Agency to investigate crimes of a certain nature but an agency to pre-empt such crimes. What you have in mind is an agency like the Federal Bureau of Investigation in US prior to 9/11. It used to ensure that those involved in terrorist crimes were prosecuted and punished. This is what it did to the perpetrators of the bombing of the World Trade Centre in 1993. This is how some of the states understand the proposal when they say that their permission should be taken before transferring cases for investigation to the proposed Central Law Enforced Agency. But in actual fact, what you really require is an agency like the remodeled FBI, which pre-empts such incidents through a series of intelligence and security measures. If you go to the FBI site on the Internet, you will know what I mean.
FBI's whole approach to terrorism underwent a complete transformation. While before the incident, terrorism was viewed primarily as a criminal matter, after 9/11, the priority of the FBI was changed to preventing incidents of terrorism. This was done by nearly doubling the number of intelligence analysts and setting up outposts. Besides, FBI established a National Security Branch to coordinate the working of divisions responsible for intelligence, counter-terrorism and counter-espionage. Like the FBI, the federal agency that we have in mind must be able to identify, halt, and where appropriate, prosecute and punish suspected terrorists, drug peddlers, and those indulging in inter-state financial swindling.
Crucial will be the structure of the proposed federal agency. If it is agreed to have such an agency, should it be a new agency or should the Intelligence Bureau, which is a premier intelligence agency, be remodeled? Or should the Central Bureau of Investigation (CBI), which primarily investigates corruption and special cases referred to it from time to time, be remodeled? Or should both these be amalgamated and made into one agency on the lines proposed? The last option will ensure that we don't add yet another agency to the plethora of central agencies that already exist. Even the FBI in US that it is today traces its origin to 1908.
This is one question. Second, should the composition of the force consist of new recruits or should lower and middle level functionaries be taken from the states? I would favour co-opting people from states, especially those who have experience in fighting terrorism. This will also ensure that the states opposing creation of such an Agency are taken on board through their men. Third, who should head it? Since the head of the agency would not just have overriding powers but require legal knowledge, should it be headed by a senior police officer or a sitting Judge of the Supreme Court who would not be amenable to pulls and pressures of the government of the day? Since such a measure would not fit into the division of powers of the different pillars of the government (executive, legislation and judiciary), the appointment of a sitting Judge may perhaps require a Constitutional amendment.
But like in the US, in India too, setting up of an agency itself will not be sufficient. Besides strengthening the FBI, the US created a new Department of Homeland Security by realigning the patchwork of as many as nine major departments. This included National Guard, coast guard, customs and border protection, secret service and civil air patrol into a single department. In fact, more than 20 disparate agencies and programmes were merged into a cohesive department with centralized leadership but with decentralized operations. This enabled one regional reporting structure for multiple field posts.
Interestingly, the US Secret Service, which protects the President, the Vice President and other public officials besides currency and financial integrity, is also under the Department of Homeland Security.
Although both the FBI and the Central Intelligence Agency (CIA) are outside the purview of the Department of Homeland Security, a National Counter-terrorism Centre coordinates all terrorist related information and activities. Besides, homeland security functions are coordinated at the White House by a Homeland Security Council. On the other hand, despite India openly alleging a foreign hand in destabilizing it since early 1980s, few, if any, steps were taken to secure the homeland.
This means that in response to today's asymmetric threats from terrorists, cyber criminals and foreign counterintelligence operatives, we need to restructure our functioning at various levels, especially that of the Union Home Ministry. The National Security Advisor has too much on his desk. For external security, we should go in for a Chief of Defence Staff (CDS) System, which has been hanging fire for long. The National Security Adviser should be redesignated National Internal Security Adviser.
All these changes would bring about a conflict between Article 355 and Article 246 – the first provides for Central "help" (which is seen by states as intervention and interference) in states and the second that puts public order and policing under in the state list.
In the light of our own experience, we need not go in for all the measures that US or other countries have taken. US have brought in the controversial Patriot Act, which allows snooping on people's telephones. You know how such a provision would be used here – politics they say is about having strange bed fellows and this would be literally used to find out who is sleeping with whom! While going in for such drastic steps, there would be need to have equally drastic and stringent safeguards - with perhaps a provision for dismissal from service to prevent misuse.
This conflict on security issues is not peculiar to India. Even in US, since the 1930s, the process of Centralism in certain spheres has continued. The centralization process gained momentum in 1960s and by 1980 the federal role had become even bigger. After 9/11 of course, it is predominant. The very fact that US has managed to prevent any incident on its homeland since 9/11 with a series of steps is creditable. In our context, there are other changes that would become necessary. For example, there is need for an All India Police Act to replace the earlier act of 1861, with certain provisions which are applicable nation-wide. Similarly you need an All India Prison Act. Unless you have this, you can't ensure the role, responsibility and jurisdiction of the Centre vis-à-vis States to check outbreaks of communal and caste violence. Nor can you deploy Central Forces in states if the situation so demands. This would require major changes in the Constitution.
This brings me back to the second point - setting up of a Consultative Legislative body for bringing about comprehensive changes in our Constitution. It is not something without precedent. A nation's Constitution is a vibrant and dynamic document that is a Darwinian and not a Newtonian affair. It must change with the times, of course retaining the basic fundamentals. Our own Constitution has undergone more than 100 amendments. Then why not give it a major re-read, without changing its basic structure of it being a sovereign, secular and democratic republic. The US Constitution, for example, was first adopted in 1777 as Articles of Confederation and Perpetual Union of only 13 Colonies. It was in 1789 that it was formulated as a Constitutional document – from being a confederation and a league of Colonies to a union of states. It was perhaps this revision because of which the number of amendments to the US Constitution has been only about 30 or 31 in over 200 years. There are other examples. The Constitution of Switzerland, for example, which was first formulated in 1848, underwent a major revision in 1874 – in less than 30 years. This revision enabled the Swiss Government to gain centralized command over its security forces.
On the other hand, we have had more than 100 amendments in less than 60 years and yet we are riddled with an uncomfortable relationship between Centre and states on umpteen fronts. These mainly relate to governance and fiscal matters. There is in fact a need to do a little balancing act – while Centre gets more powers on the security front, it loosens its financial purse to the states. Perhaps not just the financial purse, the Centre needs to revert back some of the subjects it has usurped from the Concurrent to the Union list.
In fact, the spadework for a major re-read or revision of the Constitution is already there. You have the Justice Sarkaria Commission Report, a voluminous documents in two parts. Then you have the Justice M.N. Venkatchaliaiah Report of 2002 on Constitution Review, with as many as 250 recommendations on various fronts, including Centre-State Relations. In fact, there is a common thread in both Commissions – Justice R.S. Sarkaria was a part of this Commission too. Setting up of a Consultative Legislative Body will also take the matter to a different level. As of now, most states will take up positions which are partisan in nature and which are based on party lines. This will help address their concerns and at the same time meet national threats.
I remember once interacting with Justice Sarkaria many years ago. While discussing his Report, he lamented that despite inheriting the Parliamentary form of Government from the British, we had paid no heed to conventions and that political expedience has overtaken basic courtesies and conduct. This is an unfortunate reality today, which requires constitutional and written safeguards to dictate our day-to-day conduct.
The terms of reference of the Justice Punchi Commission are comprehensive and are a step forward from the Justice Sarkaria Commission set up in 1983. Unfortunately, despite the work put in by the Justice Sarkaria Commission, not much headway was made in facilitating better Centre-State relations. The relationship is like the typical Indian Mother-in-law and Daughters-in-law, where both think they are giving in a lot and the other side is not reciprocating. The very fact that the Government has had to appoint yet another Commission to deal with the issue within 20 years of the earlier Commission submitting its report shows that most of the issues that prompted the setting up of the earlier Commission have remained. This I suppose was primarily because of a lack of consensus at the national level. From the work that is being put in by this Commission, I am sure the report that will be submitted will help us resolve many of the contentious issues facing us. But, I hope that the recommendations of this Commission too don't end up the way the earlier Commission's views were.
This can be avoided, if the Commission were to divide its recommendations in two parts. One, the recommendations that require immediate enforcement. This could include - if you refer to the extract of the notification which is available here – issues like the role, responsibility and jurisdiction of the Centre vis-à-vis States during major and prolonged outbreaks of communal and caste violence. This category could also include issues like the need to set up a Central Law Enforcement Agency and deployment of Central forces in states. All these are interlinked and can't be seen in isolation and I will dwell on this in the next few minutes. These are imperatives that the global, regional and our own internal situation warrants. I remember that the Justice Sarkaria Commission too had dealt with some of these issues, though the issue of a federal agency was not a part of its terms of reference as terrorism mercifully was not then on the radar. Justice Sarkaria had in fact recommended that the Centre should consult the states before rushing its armed forces to a state, if the latter had not made a request for the same. That was perhaps for the best of times while now we are trying to come to terms with the worst of times.
The second category could include those recommendations, which have an even greater bearing on the way our Constitution has been framed. These relate to fiscal matters and other issues like river waters and minerals. To look into these the Commission may think of suggesting the constitution of a consultative legislative body on the lines of the mini-Constituent Assembly that framed the Constitution after Independence. This will ensure that the work of the Commission would be taken to its logical conclusion in Parliament. Otherwise, its recommendations, howsoever important they be, would be subject to the vagaries of the electoral outcome and political pulls and pressures.
I feel that the proposal to set up a Central Law Enforcement Agency to take up suo motu investigation of crimes having inter-state and / or international ramifications with serious implications on national security would be only a half-way house. This is primarily for two reasons:
One, what you require is not just a Central Agency to investigate crimes of a certain nature but an agency to pre-empt such crimes. What you have in mind is an agency like the Federal Bureau of Investigation in US prior to 9/11. It used to ensure that those involved in terrorist crimes were prosecuted and punished. This is what it did to the perpetrators of the bombing of the World Trade Centre in 1993. This is how some of the states understand the proposal when they say that their permission should be taken before transferring cases for investigation to the proposed Central Law Enforced Agency. But in actual fact, what you really require is an agency like the remodeled FBI, which pre-empts such incidents through a series of intelligence and security measures. If you go to the FBI site on the Internet, you will know what I mean.
FBI's whole approach to terrorism underwent a complete transformation. While before the incident, terrorism was viewed primarily as a criminal matter, after 9/11, the priority of the FBI was changed to preventing incidents of terrorism. This was done by nearly doubling the number of intelligence analysts and setting up outposts. Besides, FBI established a National Security Branch to coordinate the working of divisions responsible for intelligence, counter-terrorism and counter-espionage. Like the FBI, the federal agency that we have in mind must be able to identify, halt, and where appropriate, prosecute and punish suspected terrorists, drug peddlers, and those indulging in inter-state financial swindling.
Crucial will be the structure of the proposed federal agency. If it is agreed to have such an agency, should it be a new agency or should the Intelligence Bureau, which is a premier intelligence agency, be remodeled? Or should the Central Bureau of Investigation (CBI), which primarily investigates corruption and special cases referred to it from time to time, be remodeled? Or should both these be amalgamated and made into one agency on the lines proposed? The last option will ensure that we don't add yet another agency to the plethora of central agencies that already exist. Even the FBI in US that it is today traces its origin to 1908.
This is one question. Second, should the composition of the force consist of new recruits or should lower and middle level functionaries be taken from the states? I would favour co-opting people from states, especially those who have experience in fighting terrorism. This will also ensure that the states opposing creation of such an Agency are taken on board through their men. Third, who should head it? Since the head of the agency would not just have overriding powers but require legal knowledge, should it be headed by a senior police officer or a sitting Judge of the Supreme Court who would not be amenable to pulls and pressures of the government of the day? Since such a measure would not fit into the division of powers of the different pillars of the government (executive, legislation and judiciary), the appointment of a sitting Judge may perhaps require a Constitutional amendment.
But like in the US, in India too, setting up of an agency itself will not be sufficient. Besides strengthening the FBI, the US created a new Department of Homeland Security by realigning the patchwork of as many as nine major departments. This included National Guard, coast guard, customs and border protection, secret service and civil air patrol into a single department. In fact, more than 20 disparate agencies and programmes were merged into a cohesive department with centralized leadership but with decentralized operations. This enabled one regional reporting structure for multiple field posts.
Interestingly, the US Secret Service, which protects the President, the Vice President and other public officials besides currency and financial integrity, is also under the Department of Homeland Security.
Although both the FBI and the Central Intelligence Agency (CIA) are outside the purview of the Department of Homeland Security, a National Counter-terrorism Centre coordinates all terrorist related information and activities. Besides, homeland security functions are coordinated at the White House by a Homeland Security Council. On the other hand, despite India openly alleging a foreign hand in destabilizing it since early 1980s, few, if any, steps were taken to secure the homeland.
This means that in response to today's asymmetric threats from terrorists, cyber criminals and foreign counterintelligence operatives, we need to restructure our functioning at various levels, especially that of the Union Home Ministry. The National Security Advisor has too much on his desk. For external security, we should go in for a Chief of Defence Staff (CDS) System, which has been hanging fire for long. The National Security Adviser should be redesignated National Internal Security Adviser.
All these changes would bring about a conflict between Article 355 and Article 246 – the first provides for Central "help" (which is seen by states as intervention and interference) in states and the second that puts public order and policing under in the state list.
In the light of our own experience, we need not go in for all the measures that US or other countries have taken. US have brought in the controversial Patriot Act, which allows snooping on people's telephones. You know how such a provision would be used here – politics they say is about having strange bed fellows and this would be literally used to find out who is sleeping with whom! While going in for such drastic steps, there would be need to have equally drastic and stringent safeguards - with perhaps a provision for dismissal from service to prevent misuse.
This conflict on security issues is not peculiar to India. Even in US, since the 1930s, the process of Centralism in certain spheres has continued. The centralization process gained momentum in 1960s and by 1980 the federal role had become even bigger. After 9/11 of course, it is predominant. The very fact that US has managed to prevent any incident on its homeland since 9/11 with a series of steps is creditable. In our context, there are other changes that would become necessary. For example, there is need for an All India Police Act to replace the earlier act of 1861, with certain provisions which are applicable nation-wide. Similarly you need an All India Prison Act. Unless you have this, you can't ensure the role, responsibility and jurisdiction of the Centre vis-à-vis States to check outbreaks of communal and caste violence. Nor can you deploy Central Forces in states if the situation so demands. This would require major changes in the Constitution.
This brings me back to the second point - setting up of a Consultative Legislative body for bringing about comprehensive changes in our Constitution. It is not something without precedent. A nation's Constitution is a vibrant and dynamic document that is a Darwinian and not a Newtonian affair. It must change with the times, of course retaining the basic fundamentals. Our own Constitution has undergone more than 100 amendments. Then why not give it a major re-read, without changing its basic structure of it being a sovereign, secular and democratic republic. The US Constitution, for example, was first adopted in 1777 as Articles of Confederation and Perpetual Union of only 13 Colonies. It was in 1789 that it was formulated as a Constitutional document – from being a confederation and a league of Colonies to a union of states. It was perhaps this revision because of which the number of amendments to the US Constitution has been only about 30 or 31 in over 200 years. There are other examples. The Constitution of Switzerland, for example, which was first formulated in 1848, underwent a major revision in 1874 – in less than 30 years. This revision enabled the Swiss Government to gain centralized command over its security forces.
On the other hand, we have had more than 100 amendments in less than 60 years and yet we are riddled with an uncomfortable relationship between Centre and states on umpteen fronts. These mainly relate to governance and fiscal matters. There is in fact a need to do a little balancing act – while Centre gets more powers on the security front, it loosens its financial purse to the states. Perhaps not just the financial purse, the Centre needs to revert back some of the subjects it has usurped from the Concurrent to the Union list.
In fact, the spadework for a major re-read or revision of the Constitution is already there. You have the Justice Sarkaria Commission Report, a voluminous documents in two parts. Then you have the Justice M.N. Venkatchaliaiah Report of 2002 on Constitution Review, with as many as 250 recommendations on various fronts, including Centre-State Relations. In fact, there is a common thread in both Commissions – Justice R.S. Sarkaria was a part of this Commission too. Setting up of a Consultative Legislative Body will also take the matter to a different level. As of now, most states will take up positions which are partisan in nature and which are based on party lines. This will help address their concerns and at the same time meet national threats.
I remember once interacting with Justice Sarkaria many years ago. While discussing his Report, he lamented that despite inheriting the Parliamentary form of Government from the British, we had paid no heed to conventions and that political expedience has overtaken basic courtesies and conduct. This is an unfortunate reality today, which requires constitutional and written safeguards to dictate our day-to-day conduct.
No comments:
Post a Comment