Events & Issues

New Delhi, 5 March 2012

NCTC Controversy

SORRY STATE OF POLITICS

Dr.S.Saraswathi

(Former Director, ICSSR, New Delhi)

The raging controversy over the National Counter Terrorism Centre portrays a sorry state of politics in the country, indeed. Recommended by the Justice Punchhi Commission on Centre-State Relations (2010) to quell disturbances in States, the NCTC is facing problems in birth itself. Its inauguration shelved with most non-Congress Chief Ministers including some important allies of the Congress opposing it. When threat to internal security is real and needs to be rooted out, the way we go about finding mechanisms and strategies raise many doubts regarding intentions and agencies. This is an instance in which Union-State relations and party politics dominate however serious is the problem awaiting action.

Maintenance of law and order in the States excluding use of military, naval, and air forces is a State subject under the distribution of powers between the Union and States in the Constitution of India. The Home Ministry has been pointing out this constitutional position whenever it can be conveniently used to put the responsibility and the blame on any State Government for shortcomings and failure in checking the operations of militant terrorist groups fighting like an army of an enemy country.

Certainly, it is the duty of the Union Government to protect the country from external aggression and internal disturbance, and ensure that the Government of every State is carried on in accordance with the provisions of the Constitution under Article 355. However, at which stage a law and order problem becomes a threat to security and needs more than police action remains vague giving great scope for political interpretations. Thus, a matter of common concern for governments, people, and every political party which involves protection of lives and property of the people is transformed into debating topics on Union-State relations and the federal system.

One must read the existing Unlawful Activities Prevention Act 1967 in force for many years in which one can find a provision for establishing such a centre, which is now resurrected for the setting up of the NCTC. The trouble with law-making in India is that the full import of various provisions of a Bill in all its dimensions is not exhaustively debated when laws are made. Sometimes, some provisions remain dormant for a long time and when they are invoked long after the legislations are adopted, they appear new and raise fresh issues. The timing and the manner of renovation of dormant ideas betray elements of politics mixed up with governance. 

The proposed NCTC as provided in the aforesaid Act will be empowered to search, seize, and also make arrests without reference to the States. It is mainly this clause that has angered friends and foes of the Congress smelling scope for misuse of the provision to persecute political dissenters. Evidently, the relations between political parties are not based on a spirit of cooperation, but on mutual distrust and ill-will. Strangely, even coalition partners who present a united front to acquire and retain the power to govern the nation also have no faith in one another.

This is not the first instance of this kind of unilateral action on the part of the Union Government in a matter vitally affecting the states in recent years. In 2009, the National Investigating Agency (NIA) was set up and all “Hindu terror” cases were brought under its purview. Security concerns may necessitate such measures, but the way they are accomplished smacks of immaturity and a certain highhandedness lacking the essential spirit of cooperation necessary to manage a federal system.

The National Counter-Terrorism Centre in the US may be the model adopted by India, but in the US, it appears to be a joint venture of the federal and State powers. There is no suspicion expressed by any State of federal intrusion into its domain. This Centre in the US has no power to interrogate and make arrests.

The NIA in India created to fight terrorism-related crimes is also empowered to deal with inter-State crimes relating to counterfeit currency, human trafficking, narcotics and illicit drugs, organized big crimes, etc. The NIA, CBI, and State police have powers to investigate, interrogate, and prosecute. One more agency is now added with similar powers to add to the already prevailing confusion and overlapping of powers. In view of opposition from many States, the inauguration of the NCTC originally scheduled to take place on 1^st March has been shelved till clearance of the questions raised by the States.

Absence of consultation with the State governments before announcing the decision to set up the NCTC is a major grievance of many State governments. There are in existence the Inter-State Council and the National Development Council to discuss issues of inter-State significance, but these have not been convened to discuss this matter.  The attempt to take unilateral decisions on the part of the Union government when consultations with State governments seem appropriate and necessary cannot but provoke resistance from the States and shut the doors for constructive ideas.

To fight terrorism-related crimes, the Centre needs the support of States as much as States need the support of the Centre. Instead of promoting a coordinated approach between the Union and the States, and leading discussions on the modalities of operation, the proposed overarching central structure – the NCDC – has helped us to dilute the problem of terrorism we are trying to fight.

The present controversy over the setting up of the NCTC has shifted the nation’s attention from seeking an apparatus to fight terrorism to safeguarding the rights of the States in our federal polity. Strongly worded criticisms come from the CMs of various States that it is a draconian Act, an encroachment on the powers of the States, usurpation of States’ authority, a danger to the federal system, a tendency to arrogate power without responsibility, and so on. All writings in journals and debates in the national channels focus on Union-State relations and ignore the details of the structure, functions, and powers of a suitable organization to fight terrorism in the country.

The fear that the proposed Centre could be used against political opponents cannot be brushed aside as imaginary.  The charge that this is an attempt to introduce some amount of Central control over State police and anti-terror bodies has to be addressed to the satisfaction of the States before the inauguration of the centre. 

The Indian Constitution is not a flawless document.  The authors had not visualized the possibility of the rise of several regional parties or the probability of the decline of one-party dominance or the emergence of an era of coalition governments.

It is no longer possible for any particular party to thrust its unilateral decisions on others even if they are necessary.  The country has reached a stage in participatory democracy at which governments at different levels and parties, and public opinion do matter in taking decisions. Certain decisions have to be arrived at by consensus lest they should appear arbitrary and authoritarian.

(Copyright, India News and Feature Alliance)