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.
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