The proposal to operationalise the National Counter-Terrorism Centre (NCTC) apart from evoking huge controversy has once again put in centre stage the issue of federalism and Centre-State relations. After sharp protest by non-Congress states to the Centre’s NCTC proposal on the ground that it violates the federal structure of the country’s polity, the principal opposition party BJP has decided to rally political opposition against the NCTC and the Centre’s attempt to dilute federalism.
Having recognised India’s pluralist and multi-regional character the framers of our Constitution after deliberations gave us a federal set up and rejected the unitary system. In the loose federal structure that India has adopted for itself there is a provision for the State Legislature in Chapter III of Part VI governing the States, almost similar to the set-up at the Centre.
The relations between the Union and the States are controlled by the provisions contained in Part XI of the Constitution.
India is an indestructible Union of destructible units. Article 3 and Article 4 of the Constitution together empower Parliament to make laws to form a new State by separation of the territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, and in so doing to increase or diminish the area of any State and to alter its boundaries and further to give effect through measures to provide for the representation in the legislatures of State or States affected by such law by varying the composition, the numerical strength thereof or even affecting the very existence of a State Legislature.
In the famous case of SR Bommai Vs Union of India, a nine-judge bench of the Supreme Court described the Constitution of India as quasi-federal, being a mixture of federal and unitary elements leaning more towards the latter.
It is indisputable that federal character of the Union is indeed a basic feature of our Constitution and all are obligated to ensure its promotion in sublime manner. However, for pure political motivations this is being capcised in a myriad manner.
In the early days of our democracy the federal system worked smoothly. Despite shifting of Centre State relations, there were no serious issues till 1967 due to Congress’s dominance at the Centre and in States. The formation of unstable coalition of non-Congress parties in many states between 1967-71 created new tensions. Thereafter, the events have taken a tangential route that have shaken the very foundations of the federal edifice.
The Bofors controversy in the country has left a political imprint that the days of single party governance at the Centre are gone. In the aftermath of Bofors controversy the country has not had at the Centre a single party government. Coalition governance has dawned in the country.
Presently different political parties, some national and some regional, are in power in the various states of our federal union. Major states of the Union are being ruled by the party that are regional in character.
The political history since Independence firmly indicates that progressively the august office of Governor came to be massively ill-utilised to subserve the sinister design of the party in power at the Centre. An office meant to ensure smooth functioning of our federal structure has been subverted. Between 1966 and 1977 Indira Gandhi imposed President’s Rule 39 times in opposition ruled states. In a sort of retaliation Janata Party Government imposed President’s rule 11 times from 1977 to 1979 in Congress ruled states.
It is thus expedient to reflect on the role of Governors in the context of the evolution of Centre-State relations.
The framers of the Constitution visualised the office of Governor as of pivotal and unique significance. The Constitution did not envisage that the Governor should be in ‘sync’ either with the Central Government or the ideology to the party in power at the Centre. The key factor in Centre and State relations is the Governor who is a bridge between the Union and State. The founding fathers of our Constitution deliberately avoided election to the office of the Governor as in the US.
Reflections of Shri Jawaharlal Nehru and Dr BR Ambedkar during the Constituent Assembly debates as regards to the office of Governor bear relevance.
Shri Nehru asserted:
“… But on the whole it probably would be desirable to have people from outside—eminent people, sometimes people who have not taken too great a part in politics. … he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine.”
Dr BR Ambedkar stated:
“… if the Constitution remains in principle the same as we intend that it should be, that the Governor should be a purely constitutional Governor, with no power of interference in the administration of the province…”
The first President of India Rajendra Prasad had warned:
“It is necessary that people of a state should have full confidence in a supreme non-partisan institution like that of Governor.”
Brushing aside the aforesaid pious and sublime expectations today the Governors are handmaidens of the Union Government. That was never their intended role. Their duty is to be neutral guardians of the complex relationship between the federal government and the state governments belonging to different political parties. This gubermatorial office now is fully politicised. Governor’s office is frequently seen as a threat to federalism. This is an inescapable consequence of exploiting the office for political ends. It is paradoxical that an office meant to strengthen federalism is turning out to be its greatest threat.
In Gujarat, Kamla Beniwal, acting not as Governor in the true Constitutional essence but as a Congress party political agent, appointed Lokayukta without even consulting the Chief Minister and in the process ravaged the essence of our Constitutional spirit.
State Governors have been notoriously partisan and have been guided from the fiats from the Centre. An amazing development took place in Karnataka and the Governor set a new high benchmark in notoriety. A congress MLC complained to Governor against three cabinet ministers. The Governor, a former Union Law Minister for long, as an act of provocative politics, issued show cause notices to the three ministers to appear before him. For the first time in the history of the nation the Governor took such a sinister unconstitutional step. The object to be achieved by the Governor was loud and clear—to destabilise the BJP-ruled state. To achieve this he engaged in never ending needling of the BJP Government in Karnataka. Such abominable strategic moves may yield momentary political windfall but inflict indelible scar on our federal polity.
The acts of gross political impropriety by the likes of Ramlals and Buta Singhs pale into insignificance when viewed in the context of the aforesaid recent acrobatics by the holders of the high offices in Gujarat and Karnataka.
Since for stability of our democratic polity is integrally connected to the maintenance of harmony in Centre-State relations, efforts were made to ensure the same. The Sarkaria Commission was appointed to look into and report on Centre and State relations. The Commission was headed by a distinguished judge of the Supreme Court. The Report of the Sarkaria Commission rendered in 1988 imparted a series of significant recommendations. The functioning of the office of the Governor came in for sharp focus and recommendations as regards their manner of appointment and discharge of obligations were made.
The Sarkaria Commission recommended that apart from being eminent in some walk of life, a Governor should not have taken too great a part in politics, particularly in recent past. However the effective implementation is yet to see the light of the day. Contrary to it the appointment of the Governor is in the discretion of the party that is in power at the Centre. In making appointment to the gubermatorial the Sarkaria Commission has been regarded only in breach.
Inter State Council was set up in 1990 in pursuance to the recommendations of the Sarkaria Commission. The recommendations of the Venkatchaliah Commission Report in 2002 and Punchchi Commission Report 2010 that dealt with Centre-State relations, the role of Governors and the importance of the Inter State Council to resolve disputes have been ignored by the successive governments.
NCTC is the latest assault on the federal polity. The case in point for the opposition is that by way of the proposed NCTC the Central Government plans spreading the net wider to focus on the Center-State relations.
It is indeed surprising that the Central Government took recourse to such a mechanism of NCTC without even consulting the Chief Ministers of the States. This is inexcusable given the situation that the NCTC to be set up in the Intelligence Bureau functioning under the Union Government, which, for the first time in its history of 125 years is to be vested with the power of search and arrest. An intelligence agency being vested with such powers is being rightly viewed by several critics as a retrograde step repugnant to democratic norms. Second, it is also being seen by nearly a dozen Chief Ministers as an encroachment on the police powers of state governments.
From a purely anti-terrorism point of view NCTC can be reckoned as somewhat rational approach. But surely this cannot be the agenda of a Government that has not spared few moments to determine the mercy plea of Afzal, the one condemned to death by the Supreme Court more than six years ago. This Government has put the nation to shame and its intentions are bound to be rightly suspect.
At a time when it is national need to act in concert for a consensus so that the delicate balance of Centre-State relations is stabilised, the Central Government is all out to virtually ambush it. The National Advisory Council, hand picked by the UPA Chairperson, has visualised a legislation for Communal and Targeted Violence that outraged the national mood. It came to be condemned across the political spectrum as also violating the federal fabric of the Union. West Bengal Chief Minister Mamata Banerjee termed the Bill as anti-federalism. Justice KT Thomas, an eminent jurist and former Supreme Court Judge, unhesitatingly labeled it as “divisive, intended for disintegration and targeted for vote bank.” Tamil Nadu Chief Minister Jayalalithaa while voicing her “strong opposition” gave out that the “remedy sought to be provided against communal and targeted violence is worse than the disease itself.”
A Constitution is as good as the people who are entrusted to implement it. Biswanath Das, a member of the Constituent Assembly, during the debate reflected, “Now we are going to have democracy from toe to neck and autocracy at the head.” The reflections have painfully turned out to be prophetic as Governors are no less than autocrats. The events are a wake up call to such people to act before it is too late.
(The writer is president of Centre for Human Rights and Justice and Senior Advocate in Supreme Court)