Revision as of 18:41, 6 September 2022

Principles involved

Federalism in India

1961: Bengal II; 2004: Madhya Pradesh

Dhananjay Mahapatra, January 20, 2020: The Times of India

With netas fishing in CAA troubled waters, fissures in federalism may cost India

Dhananjay.Mahapatra@timesgroup.com

In the land of the Mahatma, violence is on the throne today. Its victims, among others, are helpless passengers in trains, loyal workers in strike-bound factories, and innocent citizens on riotstricken roads when the bandh-mongers claim the freedom of the city.”

This was said by Nani A Palkhivala, the unparalleled legal luminary, way back in 1982 referring to the situation prevailing in India then. “Not since abolition of thuggery by Lord William Bentick in the 1830s has violence characterised our national life on a scale so widespread and so unchecked as today. Our legal system has made life too easy for criminals and too difficult for law-abiding citizens. A touch here and a push there, and India may become ungovernable under the present constitutional set-up,” he had said.

Right to protest is undeniably a fundamental right. But this right does not extend to destruction of public property, or to laying siege to roads to violate right to free access of people and rendering India ungovernable.

Law teachers often said ‘India is a federal republic with a unitary bias’. In state of Rajasthan vs Union of India [1977 AIR 1361], a sevenjudge SC bench explained, “A conspectus of provisions of our Constitution will indicate that, whatever appearances of a federal structure our Constitution may have, its operations are certainly judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.”

Constitution’s principal architect BR Ambedkar, considered India to be “both unitary as well as federal according to the requirements of time and circumstances”. Over the years, the SC has settled the law and most political parties will agree with Palkhivala, who had said, “We do need a strong Union. But a strong Union is in no way inconsistent with strong states. On the contrary, by definition, a strong Union can only be a Union of strong states.”

When India was on the path of industrialisation under Prime Minister Jawaharlal Nehru, the then Union government through Parliament enacted a law in 1957 to acquire privately held coalfields, most of which were in West Bengal, to increase coal production. The Bengal government, claiming sovereign control over its land and minerals, moved the apex court with an Article 131 suit challenging the law.

The Bengal government argued, “States have within their allotted field full attributes of sovereignty and exercise of authority by Union agencies, legislative or executive, which trenches upon that sovereignty is void.” Rejecting the state’s suit against the Centre [1963 AIR 1241], the SC had said, “The executive power of every state has to be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that state, and not to impede or prejudice the executive power of the Union.”

In 2004, when Congressled UPA was in office at the Centre, the BJP government in Madhya Pradesh had filed a suit under Article 131 in the SC challenging the validity of Parliament-enacted MP Reorganisation Act on the issue of division of electricity board assets and dues after carving out of Chhattisgarh from Madhya Pradesh.

Disapproving a state government challenging the validity of a Parliament-enacted law through Article 131, the SC in ‘State of MP vs Union Of India’ on August 17, 2011, had said, “Normally, for questions relating to validity of central or other laws, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India in a writ petition and not an original suit filed under Article 131 which vests exclusive jurisdiction of this court as regards disputes enumerated therein.”

State governments moving the SC against the Centre

2020: Chhattisgarh

Dhananjay Mahapatra, January 16, 2020: The Times of India

NEW DELHI: The Congress government in Chhattisgarh on Wednesday made the National Investigation Agency (NIA) Act, enacted by Parliament in 2008 during the Congress-led UPA government to investigate terror and other crimes having national consequence, a Centre-state dispute alleging that the counter-terrorism law was illegally usurping police powers of the state. The trigger for filing the suit to take on the Centre under a federal structure appeared to be the NIA’s decision to take over certain Naxal-related criminal cases.

The Bhupesh Baghel government’s Article 131 petition, settled by senior advocate Vivek Tankha, said, “NIA Act, in its present form, not only takes away the power of conducting investigation by the state through its police but also confers unfettered discretionary and arbitrary powers on the Union government. There are no rules governing the exercise of power (by the Union home ministry) which gives ample discretion to the Centre to exercise its power at any juncture without providing any reason or justification for the same.”

The NIA Act was passed by Parliament on December 31, 2008, in the immediate aftermath of the 26/11 terror attacks on Mumbai in order to break the silos in which intelligence and law-enforcement agencies worked and to facilitate a seamless response to crimes against the country.

Then Union home minister P Chidambaram had introduced the NIA Bill in Lok Sabha in December 2008. In the statement of object and reasons for introducing the bill to create NIA, Chidambaram had told Parliament, “Over the past several years, India has been the victim of largescale terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by Left wing extremism, but also in the form of terrorist attacks and bomb blasts etc in various parts of the hinterland and major cities.” He had further said, “A large number of such incidents are found to have complex inter-state and international linkages, and possible connection with other activities like the smuggling of arms and drugs, pushing in and circulation of fake Indian currency, infiltration from across the borders etc. Keeping all these in view, it has for long been felt that there is need for setting up an agency at the central level for investigation of offences related to terrorism and certain other acts, which have national ramifications.”

The trigger for Chhattisgarh filing the suit seeking declaration that NIA Act was unconstitutional was the NIA’s request seeking transfer to itself several Naxal-related violent incidents. The state police appears to have completed investigations into them and did not want the NIA to take over the probe.

Citing that investigation into any crime by the central agency CBI required consent of the state government, Chhattisgarh said, “Provisions of the NIA Act leave no room for coordination and pre-condition of consent, in any form whatsoever, to be sought by the Centre from the state government, which clearly repudiates the idea of state sovereignty as envisaged under the Constitution.

“The provisions of NIA Act are such that once brought into motion, it completely takes away the power of the state government to investigate the offences which have been categorised as scheduled offences under the NIA Act and which have been committed within the jurisdiction of the state. NIA Act is not only unconstitutional but is also against the federal spirit envisaged under our constitutional scheme wherein both Centre and state are considered to be independent in their respective jurisdictions.”