Tuesday, February 21, 2012

States stand up to Congress's bullying

(First published in The Pioneer dated February 21, 2012)


It seems that the Manmohan Singh Government just cannot do anything right. As a consequence it keeps getting into a confrontation with not just the Opposition but also its allies on key decisions that are best taken after securing broad-based support across the political spectrum. The result is that the Congress, which heads the Government, has had to backtrack on important matters, leaving them untackled. The failure of the UPA regime to pursue its financial agenda (the fiasco over foreign direct investment in multi-brand retail) and push through anti-corruption measures (the Lokpal and Lokayukta Bill, 2011) has been extensively documented. But what has come as a shock to the people is the inability of the Government to develop a consensus even on issues relating to the security of the country and its bluster in trying to push through measures that find no favour with several State Governments that are as responsible as the Union Government is for combating terrorism. The controversy over the establishment of the National Counter-Terrorism Centre is the most recent example of that ineptness.
With nearly all non-Congress Chief Ministers and several other prominent politicians strongly protesting against the Government’s executive order to make the NCTC operational from March 1 and all but making it clear that they will not cooperate with the Union Government on the issue, the Government had no option but to strike a conciliatory note and accept that the matter would have to be discussed with the States to arrive at a consensus. That is something it should have done before it issued the order. The Government had ample time to fix the glitches. The idea to establish the NCTC as an umbrella organisation to effectively coordinate the various anti-terror measures that are being taken across the country was first mooted by Union Minister for Home Affairs P Chidambaram in 2009 in the wake of the 26/11 attacks in Mumbai. The proposal was cleared by the Cabinet Committee on Security in January 2012. Apparently, in these three years the Government made no meaningful attempt to bring the political parties on board – neither during the deliberations that led to the finalisation of the proposal nor immediately before the Cabinet gave its nod to the establishment of the NCTC. Why?
The Government has argued that, since the NCTC is just an offshoot of an Act that has been passed in Parliament, there was no need to seek any fresh consensus. It is technically true that the NCTC flows from the amended Unlawful Activities (Prevention) Act, 1967. But it is equally true that the sweeping powers that the NCTC has been given trespasses into the State subject of law and order. Rather than having discussed the issue with the States to find a way to tackle this bone of contention, the Union Government suddenly issued an executive order to establish the NCTC. This is the work of an arrogant regime that has clearly overestimated its strength.
What has especially raised the hackles of the Chief Ministers is the power given to the NCTC under Section 43(A) of the Unlawful Activities (Prevention) Act, 1967. The Section that deals with the power to arrest, search, etc, reads as follows: “Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.”
In other words, the NCTC will have the power to search and arrest suspects of terror-related activities in States without necessarily getting the consent of the respective State Governments. This is outrageous, because it renders the State Governments irrelevant. Moreover, even the Intelligence Bureau, to whom the director of the NCTC will report, does not have the powers to search and arrest. Worse, since the Intelligence Bureau is a shadowy organisation that is not accountable to Parliament, there is bound to be opacity in the functioning of the NCTC too, adding to the woes of the State Governments.
But, let us keep technicalities aside for a moment and accept every one of the Union Government’s defence on the controversy: That the NCTC flows from an existing law; that the State Governments will be represented in the NCTC; that the NCTC is essential to effectively counter terrorism in the country. However, there is another truth: The Congress-led UPA is facing a huge trust deficit and cannot afford more confrontations. Not only the Opposition but also its key partners have on more than one occasion questioned its motives on a range of issues in recent times. The story of another executive order, now all but dead, is still fresh in memory. The Government had through that order opened up the multi-brand retail sector to foreign direct investment. There too it had failed to take political parties including allies like Trinamool Congress on board. Consequent to the huge political outcry, it has had to hold back that order. It also failed to push through the Lokpal and Lokayukta Bill, 2011, because the States refused to be directed by the Union Government on the appointment of the Lokayukta, taking the correct position that the creation of the anti-corruption institution was the prerogative of State Governments.
Then there is a third episode that has also contributed in a large measure to the environment of distrust. It relates to the UPA’s move to bring in the Prevention of Communal and Targetted Violence (Access to Justice and Reparations) Bill late last year. Like in the case of the NCTC, this Bill too threatened to whittle down the powers of the States and give the Union Government the right to directly intervene in any case of violence that it believed was communally motivated. Worse, the Bill assumed straightaway that the majority community would be held responsible for such violence.
So, why is the Congress, which leads the UPA, so determined to damage the federal structure of the Constitution that has unambiguously laid out the powers of the Union and the State Governments? The fact is that the Congress has always indulged in undermining the autonomy of States with various measures of success. The reason why that tactic is not working now is because the party is confronted with truly strong Chief Ministers like Mamata Banerjee, Naveen Patnaik, J Jayalalithaa, Narendra Modi and Nitish Kumar who are not at its mercy for survival. The Congress has to realise that it can no longer arm-twist States into submission. Those days are gone.

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