Monday, November 24, 2008

An Unnecessary Amendment

The recent spate of terrorist attacks across the country has led to a demand for creation of a national agency to investigate acts of terrorism. The UPA government has cited the Indian Constitution as the only obstacle for the creation of such a national agency. The government asserts that since the entries “police” and “public order” are in the State List of the Indian Constitution, the Centre cannot create a national agency to deal with acts of terror without amending the Constitution. Even the Leader of the Opposition L.K. Advani agrees. In his autobiography, My Country, My Life, he asserts that we must liberate ourselves from the “law and order” mindset and only a constitutional amendment would allow the centre to deal with federal crimes like terrorism. This approach underestimates the constitutional powers given to the Union Government. Although our Constitution is a federal in structure, it has a strong unitary bias in favour of the Centre. There are two distinct constitutional sources of power which would enable the Centre to create a national agency to deal with terrorism.

First, although the Indian Constitution has created a list in the Seventh Schedule which can be legislated exclusively by the state government, it also confers certain “superior legislative powers” on Parliament to make inroads into the exclusive domain of the state government. One such “superior legislative power” arises in the context of an international treaty or resolution. Article 253 enables Parliament to make a law for the whole or any part of India to implement “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”, even if the subject matter of the law forms part of the State List. The Government of India has entered into numerous multilateral and regional treaties on terrorism and was a party to several UN resolutions and decisions taken at international conferences condemning terrorism and resolving itself along with other countries to punish acts of terror. Pursuant to these treaties and resolutions, Parliament is entitled to pass a law punishing acts of terror and creating a national agency to deal with acts of terror, even though it intrudes into the State List. A Constitution Bench of Supreme Court way back in 1969 in Maganbhai v. Union of India has categorically ruled that a parliamentary law pursuant to an international treaty cannot be challenged even though it intrudes into the exclusive legislative domain of the states.

Second, our Constitution was drafted on the assumption that law and order would be handled by the state and external defence would be handled by the Union. But inter-state and inter-country crimes do not fit into this neat bifurcation since the place where the criminal plan is hatched, prepared, financed and executed do not fall within one state and even within one country. This is a challenge for the investigating authorities since the state legislatures are constitutionally precluded from passing a law which would be effective beyond the state boundaries. But Parliament suffers from no such impediment. A law passed by Parliament cannot be challenged even if it operates outside the country. (Article 245) Therefore, inter-state crimes would not and cannot fall within exclusive legislative power of the state. Since there is no other entry in the Seventh Schedule in the Constitution, it would necessarily come within the ambit of the residuary power. Unlike the American Constitution, the residuary power to frame laws with respect to matters not enumerated in the Seventh Schedule in India has been assigned to the Centre instead of the states. (Article 248) The Parliament can certainly invoke this residuary power to create a federal agency to investigate and prosecute inter-state crimes like terrorist acts.

The Constitution is certainly not an obstacle to deal with terrorism. And on the contrary, it makes a categorical declaration in Article 355 that it shall be the “duty of the Union to protect every State against external aggression and internal disturbance”. Despite such explicit constitutional power conferred on the Centre, the Centre still cites the Constitution as an excuse to deal with terrorism. It is no small irony that the UPA government does not feel any constitutional constraint when it comes to invoking Article 356, but suddenly develops a respect for the federal character when it comes to dealing with terrorism. Constitutional modesty is certainly not a desirable virtue when the security of the country is at peril.

5 comments:

Mahesh Menon said...

i don't think it would be possible to legislate on terrorism based on international commitments. firstly, international law itself is not clear as to what all acts can amount to terrorism. secondly apart from few treaties that deal with certain specific situations there is no common global treaty, declaration dealing with terrorism - something that can be shown as a one that commits the parliament to legislate on.

secondly, extra-territorial application of state made criminal laws can be dealt with by the provisions of Cr.P.C which confer jurisdiction on such courts within whose territory any effect of a crime was felt.

Talha A Rahman said...

In the context of the article, I think at this moment the search is for an enabling clause invoking which would avoid an unwanted constitutional amendment. And it is here the a law pursuant to Art 253 'fulfilling' international obligation comes to salvage the situation. Admittedly, a great many aspect of international anti-terrorism law are itself vague, which for current problem is good: meaning that with due regard to certain higher principles, India is open to make its own interpretation and go ahead with a legislation reinforcing its security concerns.

With respect to inter-state 'police force', to my understanding what is being suggested is something akin to STF for states - an organisation that is not bound by typical territorial boundaries and can operate on its measure across the country.

Anonymous said...

A few other points.

List 1 entry 1. Defence of India. An anti-terrorism law may fall in pith and substance under this entry. Of course there will be an encroachment into the state list; but perhaps a justifiable encroachment.

List 1 entry 21. This reads "... offences against the law of nations committed on land or on the high seas or in the air."
Terrorism is (at \least arguably) an offence against the law of nations. What is the problem with using this entry?

List 3, entry 1 (criminal law). Again, a pith and substance argument might work. But will be tougher than the other two options.

In addition to Mr. Reddy's points; I think list 1 entries 1 and 21; along with arugments based on pith and substance; should be able to work...

Interestingly, the MCOCA challenge presently before the SC is that the STATE does not have the power to legislate on "insurgency"; therefore the MCOCA reference to insurgency is ultra vires.

Mahesh Menon said...

the relevant portion of Article 253 reads "for implementing any treaty,agreement or convention with any other country or countries or any decision made at any international conference, association or other body" - so legislation will be possible only for any of the aforesaid purposes. i dont think there are any international agreements etc. which the parliament may be able to rely on to support a sweeping legislation on all aspects relating to terrorism.

as to the provisions in the entries pointed out Mr. anonymous, when there are specific entries in the state list which deals with the matter in 'pith and substance', i think that might be a problem. but the suggestion that it may be brought under List 3. entry 1 sounds more feasible

Anonymous said...

Hello Mr. Menon;

agree that relying on 253 runs into the problems you suggest. Regarding pith and substance, more or less, the issue will be whether the law is in pith and substance in "public order" or in "defence of india" or "offences against the law of nations". Now, regarding the provision against offences against law of nations, it refers to "on the high seas" - presumably piracy is one instance. But it also refers to offences against the law of nations on land. Now, unless we hold that a law dealing with terrorism is in P&S under that provision and not under "public order", we run the danger of rendering "offences committed against the law of nations on land" rather otiose. For, it would apply to (for instance) genocide. But if 'terrorism' is in pith and substance a "public order" issue; won't genocide also be a public order issue? Won't almost all offences against the law of nations lead to a public order issue? At the very least, this seems to me to be an arguable case; and, frankly, I doubt that the judiciary will interfere with such a law on competence grounds...

Also, perhaps, to resolve Article 249 can be used? The RS will have to pass a resolution by 2/3 majority that it is expedient in the public interest to legislate on a matter in the state list. The problem with this is that it will require the RS to pass a resolution every year. But perhaps, all we need is political will and neither rhetoric nor constitutional amendment...