National Counter Terrorism Centre

Dr M N Buch 

(Visiting Fellow, VIF)

When we were caught unawares by the Pakistani intrusion into Kargil a high powered committee was set up under Shri K.S. Subramaniam, who had been Defence Secretary of India, to suggest measures whereby we could avoid intelligence failures, provide for a quick response to a Kargil like situation and take such counter insurgency measures as would make India secure. Like all reports of this nature the Subramaniam Committee report also was never meaningfully implemented. We even failed to set up a coordinating agency within the armed forces under a Chief of Defence Staff, not so much because the civil service component of the Defence Ministry opposed this but because there was inter-service rivalry between the armed forces and no Chief was prepared to accept a higher authority for the purpose of coordination. Since Kargil, just as it was before Kargil, India has continued to be a target of terrorism, largely sponsored by our neighbour, Pakistan, but also terrorism which has been born within the country. I am including insurgency and militancy which use violence as a major weapon within the definition of terrorism and, therefore, Naxalite violence or the type of violence one sees in Jammu & Kashmir would also come within the overall ambit of terrorism.

In the United States of America on 11th September 2001 aircraft were used by terrorists as living bombs and crashed into the World Trade Centre Twin Towers in New York and the Pentagon in Washington D.C. Several thousand lives were lost and even more injured in these horrible examples of extreme terrorism in which aircraft were used as suicide bombs. Now it is a fact that the United States of America is a federation in which all residuary powers vest in the States, which means that what is not specifically reserved for the Federal Government is available to the State Governments. In India the reverse is true because under the Seventh Schedule of the Constitution, apart from the Union List which gives the exclusive powers of Parliament and the State List, which gives the exclusive power of the State Legislatures, there is the Concurrent List in which both law making bodies have the power to legislate, with the rider that a law of Parliament overrides a State law on the same subject. Residuary powers are vested in the Centre and there are circumstances under which the Centre can give directions to the States, can legislate on behalf of the States under certain circumstances even on matters in the State List and can go to the extent of dismissing a State Government and assuming direct federal control under Article 356 of the Constitution. In other words, India is a very centripetal federation, heavily weighted in favour of the Centre. Despite this, after 11th September 2001 incident the United States government decided to take really effective measures to prevent a similar attack in future. Agencies like FBI and CIA were strengthened and their powers enhanced and a national counter insurgency centre was set up which had the authority to intercept mails, telephones and various electronic means of information and communications technology and to take effective action to arrest and neutralise would be terrorists.

None of the State Government raised any objection to the new arrangement, despite the fact that the counter terrorism organisation was armed with police powers which lay within the domain of the State and local governments. No one distrusted the new arrangement or considered it politicised and the States had full confidence that the agency would use its authority against terrorists and would not harass ordinary citizens or destablise State Governments. What is more, the police at all levels, city, county, State and federal, all work in tandem. Their single objective is the maintenance of law and order and ensuring the safety and security of citizens and they do not eye each other with suspicion. The culture there is that in performing its police functions the Force is allowed to work according to law and the kind of political and other interference which takes place in India is virtually unknown. In Madhya Pradesh recently the Home Minister insisted on the suspension or at least the transfer of an Inspector of the Traffic Police because he dared to pull up a twenty-year old boy for not wearing a helmet when riding a two wheeler. The boy was the son of a party worker. Moving out the Inspector in this manner naturally demoralizes the entire Force and to expect it thereafter to maintain order and counter terrorism would be virtually impossible of achievement. Defying a traffic policeman in Britain or United States is totally unthinkable. This example is being given because if in the minor matter of a traffic violation the Home Minister intervenes and prevents the police from performing its function how can anyone trust the police to be able to deal with a major threat of terrorism.

The Government of India has been trying to create agencies within the government structure which could collect and collate intelligence, pass on actionable information to the field authorities and then ensure that the terrorist organisations are hit hard enough to hurt. If we go back to the beginning of the twentieth century, especially at about the time of the Partition of Bengal by Lord Curzon, a terrorist organisation called the Anusheelan Party came into being. Its organisation was cellular and, therefore, very secretive. The bomb and the bullet were their favourite weapons. The British used some young Bengali officers of the Bengal Police to penetrate this organisation, collect information on different cells, which were largely unconnected and when the intelligence input became adequate they suddenly struck and virtually destroyed the Anusheelan Party. This was one of the most successful counter terrorism campaigns ever conducted in India. The Bengal Police was totally trusted by the British, just as the Punjab Police was trusted in dealing with the Ghadar Movement. In the Punjab it is only after Julio Rebeiro and K.P.S. Gill revitalised the Punjab Police and it came to the forefront in dealing with Khalistani terrorism that the situation began to normalise. The day the J&K Police becomes operationally capable of taking on militancy in the State we shall control this phenomenon. The Special Operations Group of the J&K Police has already begun to show signs of promise. In the Naxalite areas the model force would be the Andhra Pradesh Police which has targeted the top leaders and eliminated them and has the situation firmly in control in the Telangana area. This is the capability of our police, provided it is given good leadership and this is the Force which must be co-opted into countering nationwide terrorism. We have to ensure that NCTC does not become a surrogate of the State Police. Its role has to be of a mentor, a provider of credible information and, where necessary, a strike force that will complement the State Police.

As originally envisaged NCTC was to operate within the framework of the Intelligence Bureau. Under Entry 9 of List 1 of the Seventh Schedule of the Constitution Parliament has the power to legislate both on the Intelligence Bureau and on the Central Bureau of Investigation (IB) and (CBI). Unfortunately even today there is no law governing both these organisations and such police powers that CBI has are enjoyed as the Delhi Special Police Establishment created by the DSPE Act. Naturally the States were extremely wary of a wing of IB, not accountable to Parliament because it is a purely executive branch of government, with NCTC being empowered to enjoy police powers in the matter of striking at terrorists, taking armed action and arresting people, apart from intercepting telephone calls, and means of electronic communication in the realm of information technology and information communication technology that non-Congress States opposed the move because they were convinced that the new organisation would be used to spy on political opponents and to arrest and harass political leaders opposed to the ruling party. Many Congress Chief Ministers also have reservations. Therefore, NCTC could not be constituted, intelligence is both scattered and random and there is no fully legally empowered coordinating agency which can not only obtain and analyse intelligence but also strike against terrorists without any delay. IB is not and does not have a strike force, NIA looks at cases at the stage when an incident has occurred and has to be investigated ex post facto. Who will make preemptive strikes? The States have raised the bogey of a conspiracy by the Centre to curtail State autonomy and intervene in matters within List 2 of the Seventh Schedule. Incidents like Hyderabad, therefore, continue to happen. The mutual distrust of Central agencies and State Police Forces continues. This environment is not conducive to cooperative effort or coordinated action.

Coordination apart, it must also be realised that the State Police has to function under strong political constraint. Many terrorist groups have local political connections and if the police tries to deal with them impartially, then these terrorists can use their political strength to negate police action, thus enhancing terrorism. The importance of a federal agency is that it is not under local influence and, therefore, can afford to be more objective and impartial. A local goonda or terrorist may have a limited sphere of influence within which he feels safe, but if national level agencies come into action then that local influence disappears and the law will take its course. My submission is that a central organisation does not weaken the State Police but instead helps in creating an environment in which the State Police can act. This is a matter worth consideration.

There is the fear that the State Police will be superseded by NCTC , which will then arrest opposition Chief Ministers, thus creating a political path along which the ruling party at the Centre can walk to power in that State. Apparently, these fears are grossly exaggerated because NCTC will not replace the State Police, it will have to hand over the accused persons to the local police station after they have been caught and the entire legal procedure will have to be followed by the investigating agency. Apart from the new agency being under political watch it will also be subject to the scrutiny of courts. After the Keshwanand Bharti case no one in India can possibly weaken the courts or remove executive agencies from the scrutiny of the court. If NCTC acts arbitrarily, under political influence or unprofessionally then the courts will intervene and restore the balance. At the same time if NCTC becomes not only an instrument for sourcing of information but also a coordinator of action against terrorists and conspirators of terror we can certainly become more secure.

The United States is fortunate that it has a friendly neighbour, Canada, on the northern border and an equally friendly neighbour, Mexico, on the southern border. The eastern and western borders of the country face two huge oceans which are very much under the control of the United States’ Navy and Coast Guard. Infiltration of terrorists from abroad, therefore, is very difficult. Home grown terrorism based on religion, caste, or region is almost unknown. India has a porous northern, western and eastern land frontier, facing as we do Pakistan and, close by, Afghanistan and China, a not always friendly Bangladesh and Myanmar which, till very recently till our relations with the country improved, was not averse to sheltering militants from our north eastern States. Our sea frontiers are liable to infiltration from Pakistan, from the Arab littoral and from various insurgent groups or pirates which might crop up from time to time towards our east. Terrorism is exported to India and, therefore, is difficult to control. Besides this we have our own internal problems of terrorism, militancy, separatism and violence emanating from religion, caste and region. To the extent the Naxalites use violence as a major weapon, Naxalism is a form of terrorism. A communal riot takes place, it further divides communities and this encourages the growth of terrorism. Every time we allow people to bring the law into contempt because no one obeys the law we encourage terrorism. Apart from NCTC, therefore, it is absolutely essential that we put an end to sectarian and regional strife, control separatist movements which are home grown and ensure that communal riots do not take place. In all this a central authority for the control of terrorism becomes of vital importance and it is about time our political parties started to think nationally and eschewed narrow parochial interests. It is in this context that a legally constituted Intelligence Bureau, properly empowered and made accountable, is vital. Its mandate already includes counter espionage, which would cover insurgency, militancy and terrorism. Once the IB is made accountable by law, NCTC should be located within it. One can then assume that the States will accept NCTC as a friend and hostility to it will cease.

Religion, Caste, Regionalism and Politics in India

Dr. M.N. Buch

Visiting Fellow, VIF

When Guru Govind Singh, the Tenth Guru, ruled that he would be the last human guru and the Guru Granth Sahib itself would be the eternal Living Guru, he said that in case of any doubt search within the Shabad, or the Guru Granth Sahib and all doubts would be resolved. To me the Constitution of India is the Shabad and when I have any doubt I go back to the Constitution and it speaks loud and clear to me. The whole Constitution is designed to make India a secular republic in which there is justice, liberty, equality and fraternity for all, in which there is total equality before law and in which the dignity of the individual is of paramount importance. The Constitution, in order to promote equality, abolishes untouchability through Article 17 and through Article 18 it abolishes titles. Regardless of birth and circumstance all Indians are equal and in this there is no room for differentiation on account of religion, caste, class, region or any other factor which divides man from man.

How are we governed? India is a Union of States and the bounds between the Union, or the Centre and the States are prescribed by the Seventh Schedule of the Constitution which gives the exclusive jurisdiction of Parliament and of the State Legislatures within their respective domains and the concurrent jurisdiction for both regarding those items which fall within the Concurrent List. Within the framework of the States by the 73rd and 74th Amendments of the Constitution have been constituted rural and urban local bodies, which form the third tier of government. The Preamble makes India a democratic republic and government at all levels is to be conducted by democratically elected people who will then elect the Council of Ministers in the Centre and the States and will constitute the village or town council, as the case may be. The execution and implementation of decisions of the elected representatives of the people would be done by officers appointed by the President or the Governor, as the case may be and they, too, will function independently as per the Rules of Business under Article 77 in the case of the Government of India and Article 166 framed for the Government of a State. Every Indian above the age of eighteen is entitled to be included in the electoral roll and cannot be excluded on grounds of religion, race, caste, sex or any of them under Article 325. There will be a single electoral roll and the Constitution specifically prohibits the preparation of a special electoral roll. Under Article 326 election to the House of the People of Parliament and the Legislative Assemblies of States is to be on the basis of adult franchise, which is universal. The Constitution specifically prohibits any discrimination on any grounds whatsoever in the matter of elections, which are the very basis for the formation of government. From this one can infer that the theme of the Constitution is that we move towards a casteless, classless, secular society in which neither religion, nor sex, nor domicile will in any way influence or determine the course of elections.

Having said this one would also have to look at the ground reality. The State of Karnataka has two dominant castes, the lingayats and the vokkaligars. Deve Gowda, former Prime Minister and Sadanand Gowda, the outgoing Chief Minister of Karnataka are vokkaligars, BSR Yeddiyurappa, on the other hand, is a lingayat. Yeddiyurappa had to resign as Chief Minister because he was arrested in a case of corruption and is even now facing investigation on charges of corruption framed by the Supreme Court of India. When he was removed from office, virtually kicking and screaming, he insisted that Sadanand Gowda be made Chief Minister. The BJP national leadership conceded this demand. Thereafter Yeddiyurappa wanted to return to office and when this was not allowed he sulked and instigated a revolt in BJP. Instead of expelling him BJP once again succumbed to his demand that Sadanad Gowda should be removed and Jagadish Shettar, a lingayat be made Chief Minster. The top leadership of BJP again gave in and Gowda is out and Shettar is in. Neither the merit of Gowda nor of Shettar has been the determinant of who should be Chief Minister. What has triumphed is caste equations. One can now look forward to a vokkaligar revolt. What happens to good government in Karnataka is one one’s concern.

Let us move to Uttar Pradesh and the elections held earlier this year. This is one State, in population India’s largest State, where caste has been the determinant of electoral politics and equations. The Samajwadi Party has Yadavs, Gujjars and Ahirs as its solid vote base. The BJP and the Congress are considered upper caste parties, though Mayawati and BSP did play the spoiler by deliberately giving seats in substantial numbers to the Brahmins and Rajputs. The fairly sizable population of Muslims in Uttar Pradesh was wooed by the Congress and the Samajwadi Party. The Congress has always looked upon the Muslims as creatures of its own backyard, whose votes could be taken for granted. However, there is such total disillusionment with the Congress among the Muslims that in Uttar Pradesh they have substantially drifted towards the Samajwadi Party and in Bihar towards the Janata Dal (United). The Congress has been left high and dry. That the Congress is quite happy to play the religious card is proved by the fact that during the entire election campaign Rahul Gandhi was paraded in the Muslim dominated areas sporting an emerging beard of a fortnight’s growth which gradually thickened as the days passed. If a beard makes one a Muslim, then many of the Syrian Orthodox priests of Kerala and people such as Acharya Giriraj Kishore would win hands down because their beards compete with the best that a Mullah can sport. Crocodile tears over the Batala House encounter, false promises about what Congress will do for the Muslims failed because the Muslim refuses to be considered part of a homogenous group whose only desire is to be appealed to as a Muslim. He refuses to be a vote bank which can be taken for granted. He is an Indian, a human being and an individual and wants to be treated as such.

The Indian Muslim of 2012 is not the same person as the Muslim of 1947. Because India is secular and because its leadership, by and large, is committed to secularism, the majority of Indian Muslims has voted with their feet to be Indians and have refused to migrate to Pakistan. In population India is the second largest Islamic country in the world after Indonesia. The Muslim population is so large that it cannot really be called a minority and the Muslim is asserting his rights in the same manner as any other citizen of India. He wants security, justice, equality of opportunity, he wants his children to be educated, he wants his cut of the development pie and he wants a share of power. These are the legitimate aspirations of every Indian and any party which fails to recognise this has no business to be in the game of politics in India. This lesson the Congress has not learnt and it will never learn. Even Gujarat, whose name is anathema of all our neoliberals, has reached the stage where many Muslims are prepared to move forward from the horrors of 2002, because the results of purposive government has been that the Muslims are now beginning to feel physically secure and certainly they are not left untouched by the economic development of that State. Paradoxically, the very State which conjures up vision of the horrors of 2002 is also the State where about 150 Muslims were elected on a BJP ticket in the local government elections. In Gujarat the Muslim community is moving forward in the matter of education and economic development. A secular party such as the Congress can surely do much more than this. It can prove that it no longer thinks of the Muslims as a collective vote bank and instead desires to move forward to treat the Muslims as individual citizens whose support it seeks.

What is preventing this? It is Congress which set up the Sachar Committee, whose mandate was to look at the position of the minorities in India. But the said committee ended up with only looking at the position of Muslims. The committee has remarked that in the matter of education, employment, holding of political office and economic development the Muslim is far behind the Hindu and that he needs special assistance to be able to catch up. The tenor of the report is that government and the majority community have both discriminated against Muslims, denied them equal opportunity in the matter of education and employment and, therefore, the Muslim is virtually a second class citizen in India. Justice Rajinder Sachar never really asked the question, “Why are the Muslims backward?” The Committee’s report itself states that compared to the majority community the level of education amongst Muslims is low. In every State of India the female literacy rate of Muslims is lower than the average of female literacy in that State. Fewer Muslim girls go to school than, for example, Hindu or Christian girls. Even when we were in the throes of the horrors of partition, no one in India had said that Muslim children, especially girls, should not be educated. Because there was no legal compulsion to educate, because India had no Truancy Act whereby absence from school could invite a penalty for the parents, school enrolment of Muslims, especially girls, definitely lagged behind the admission rate for other communities. Naturally Muslims lag behind other communities in the matter of higher and technical education also and this directly affects their employment profile because so many of them are unemployable. This has to be corrected very fast if Muslims are to keep on par with other communities. Certainly reservation in jobs will not give the desired results because the few Muslims who are already educated would monopolise jobs, leaving the needy in the community high and dry.

The parties which call themselves secular, the Congress, Samajwadi Party, Trinamool Congress, etc., should have launched a campaign for bringing Muslim children to school and ensuring that they completed their education. An educated person cannot be denied employment because if India cannot employ him or her, jobs would be found somewhere else in the world. From 1923 the Madras Presidency, which included Tamil Nadu, Andhra Pradesh minus Telangana and Hyderabad, Malabar District in Kerala and Mangalore in Karnataka, had a reservation policy which virtually denied Brahmins an entry into higher education and government jobs. There was no Sachar Committee to look at the plight of the Brahmins, but the community collectively decided that regardless of what happened to the then current generation, the children would be educated. Denied admission in Tamil Nadu they migrated in large numbers to wherever they could be admitted in India. Universities in Madhya Pradesh, Maharashtra, Uttar Pradesh were flooded with Tamil students and today children of the community virtually rule Silicon Valley in the United States of America. The way to eliminate religion as a determinant of politics is to make the Muslims take the educational path to progress and instead of appealing to narrow religious sentiments the parties which seek power should persuade backward communities like the Muslims take advantage of what the education system has to offer. In the long run this would pay rich dividends to the community, the country and our political parties.

The use of religion, caste and class as a political weapon is potentially fraught with danger. When differences are highlighted base passions are ignited and caste wars in India are endemic. The result of the caste divide in Bihar was utter lawlessness in the State and this has pushed Bihar’s progress back by half a century. Nitish Kumar’s greatest achievement is that he is able to cut through caste barriers and has launched Bihar on a development path which unites rather than divides. The significant improvement in law and order in Bihar is not necessarily because of better policing but because of more impartial policing and the Chief Minister’s efforts to put development above caste considerations.

The most dangerous form of divisiveness is religion. The post Godhra riots in Gujarat in 2002 were by no means the worst in that State’s history. The 1969 riots lasted longer and took a larger toll of life. Maharashtra, especially the city of Bombay, has experienced some of the bloodiest communal riots in India, almost all of them under a Congress regime. What set the Gujarat riots apart is the allegation of State patronage of the riots. This has not been proved and at least in North Gujarat and Saurashtra either there were no riots or the district administration acted firmly and promptly to nip the trouble in the bud. In Central and South Gujarat, on the other hand, there was a real communal divide and there the riots were more prolonged. The fact that since 2002 there have been no major riots in Gujarat shows that the Chief Minister has since encouraged effective law enforcement and that the 2002 riots were an unfortunate episode which is being blown out of proportion. However, the fact remains that in Central and South Gujarat there is a Hindu-Muslim divide and that is the principal cause of riots in that part of the State. The lesson to us is that if the divide continues it is inevitable that violence will occur. Why blame the Muslim League and Jinnah for partition of the country when right from Gram Panchayat up to Parliament all our politicians are busy playing the game of setting caste against caste, religion against religion, all for the sake of a few votes. The Indian State is capable of containing and eliminating separatist movements, terrorism, militancy and even violent Naxalism. It is not these factors which will destroy India. It is the politics of divisiveness, religion, caste, class, regionalism which is posing the real danger to the integrity of our nation. If the political parties decide to fight elections on the basis of ideology, programmes and plans instead of flaunting the caste and religious factors, most of the problems of India will disappear and certainly the country will no longer be split apart by religion, caste, class, or region.

How deeply is caste entrenched? In the upcoming presidential election one candidate, P.A. Sangma, is projecting himself as a tribal, a Christian and a North Easterner. The BJP is doing the same for Sangma. There is not a word about how as Chief Minister of Meghalaya, as an Union Minister and Speaker of the Lok Sabha Sangma put in a sterling performance which is no less than that of Pranab Mukherji. Ethnicity in this case rather than caste, minority status as a Christian and the regional appeal of the North East are the dominant factors in the election campaign. Does this promote equality, secularism and rational politics? The whole campaign for reservation for other backward classes, which is a thinly disguised cover for intermediate castes, is directly aimed at further entrenching the caste system in our psyche. When we take a highly competitive examination like the Civil Services Examination, ultimately the selection is of fifty percent of those who are neither SC, nor ST, nor OBC. The general category, therefore, becomes another caste. The OBCs are resented by SC and ST people because reservation for OBCs cuts into their own employment opportunities. To this witch’s brew we now want to add reservation for Muslims. There is already a demand from Christian groups that members of the SC who lost their status on conversion to Christianity should be recognised as Christian dalits and given all the concessions available to a scheduled caste, notwithstanding the fact that caste is a function of the Hindu religion and does not apply to any other religion.

They say that a house divided cannot stand. Our politicians are using a sledge hammer, a battering ram to cause our house to splinter so that the whole nation gets divided and sub-divided between religion, caste and region. Let us not discount regionalism because it is this which has led the movements such as those for Vidarbha, Telangana, Bodoland, Gurkhaland, separatism as in Kashmir and other forms of violent militancy in different parts of the country. Such fissiparous tendencies can only be combated if we pull ourselves back from the brink of fragmentation caused by religion, caste, class and regionalism.

J&K Interlocutors, Indian Constitution and the Dustbin

Prof. Makkhan Lal
Senior Fellow, VIF

Jammu and Kashmir is not a problem of the Kashmiris alone but of every ordinary citizen of this country. A closer look at the correspondence among Jawaharlal Nehru, Sardar Patel, Maharaj Hari Singh and Sheikh Abdullah; file notings and government documents published in various volume of Transfer of Power for the period between 1946 and 1950 would reveal how the problem was created, where there none and then how it was muddied and how we have ended up in a mess. I do intend to take up this issue sometime soon.

However, the Subject matter of this article is certain remarks and suggestions made by the “Group of Interlocutors for J & K” headed by Mr. Dilip Padgaonkar in their report “A New Compact With People of Jammu and Kashmir” submitted to the Prime Minister.

Of the many issues discussed and recommendations made the Committee has talked about Article 370 of the Constitution and made some disturbing recommendations. It suggests “We recommend that a Constitutional Committee (CC) be set up to review all Central Acts and Articles of the Constitution of India extended to State….” Not just that it makes suggestion also what this CC should recommend: “Delete the word ‘Temporary’ for the heading of Article 370 and from the title of Part XXI of the Constitution. Replace it with the word Special….”; Governor shall be appointed on the recommendation of the State Government; under Article 356 proviso should be added that “the Governor will keep the State Legislature under suspended animation to hold fresh elections within three months”; All India Service Officers (Article 312) should be reduced in favour of State civil service officers. And indeed “Parliament shall make no laws applicable to the State unless it relates to the country’s internal and external security...” (pp.303-6).

In relation to Article 370 the Committee wants not just the word “Temporary” be replaced by word “Special” but also wants Clauses (1) and (3) to go. It important now to see what the Article 370 says:

“Article 370 of the Indian Constitution

Temporary provisions with respect to the State of Jammu and Kashmir.

(1) Notwithstanding anything in this Constitution,-

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to--

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii)such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation.- For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify :

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause

(b) shall be issued except in consultation with the Government of the State :

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Not withstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Origin of the Problem

Sheikh Mohammad Abdullah was a school teacher who left his job in 1930 and founded ‘Muslim Conference’ which was later named as ‘National Conference’. On 10 May, 1946 Abdullah launched a movement against the Maharaja with the slogan against him ‘Quit Kashmir’. In his inflammatory and communal speech against the Maharaja and the Hindus he called for ‘Jehad’. On 17 May, 1946, Abdullah exhorted his followers:

“It is time for action. You must fight slavery and enter the field of ‘Jehad’ as soldiers. Every man, woman and child will shout ‘Quit Kashmir’. The Kashmiri nation has expressed its will. I will ask for plebiscite.”

The slogan ‘Quit Kashmir’ should was meant for Maharaja to ‘Quit Kashmir’ and hand over the reins to Abdullah. Abdullah was arrested on 20 May, 1946. Nehru demanded his immediate release. To demonstrate his support for Sheikh Abdullah Nehru decided to visit Kashmir in June. The State Government banned his entry. Nehru decided to enter Kashmir defying the ban. He gave the reason for entering the state as follows:

“I am going to Kashmir firstly, to arrange for the defence of Abdullah; secondly, to see thing myself, although my visit to Srinagar will be brief one; and thirdly, to do all I can to put an end to the complication arising from the policy of the State Government.”¹

Nehru was advised by the Viceroy not to visit Jammu and Kashmir. But he ignored the advice of Viceroy, defied the order of the State Government, and decided to visit Jammu and Kashmir. He entered Jammu and Kashmir on 20 June. Nehru was arrested and subsequently released on 22 June, 1946 and brought back to Delhi. “This event, besides causing a great public stir, permanently impaired the relation between Maharaja Hari Singh and Nehru. As subsequent events showed, Nehru was never able to get over his hostility towards Maharaja and Sheikh Abdullah exploited it to the hilt.”²

Widening Fissures

Nehru’s overture to Sheikh Abdullah and open dislike to Maharaja had made the Maharaja very skeptical. He saw no scope of being treated fairly by Nehru, what to say of Abdullah who has been vying for his blood. After the announcement of Mountbatten’s plan of June 3, 1947, Mountbatten visited Kashmir in the third week of June. He tried to persuade Maharaja Hari Singh to make-up his mind for joining one dominion or the other i.e. either India of Pakistan. But Maharaja could not take decision even after the dead-line of August 14, 1947 passed and transfer of power took place with the clock heralding the August 15, 1947. Maharaja could not decide primarily because of Nehru-Abdullah nexus on the one hand and the machinations of Jinnah on the other, and partly because of his own desire to be an independent kingdom with himself and his successors as the sole ruler.³

Nevertheless, Sardar Patel was trying to retrieve the lost ground due to Nehru’s recklessness. On 3 July, 1947 he wrote directly to the Maharaja:

“I am sorry to find that there is considerable misapprehension in your mind about the Congress. Allow me to assure your Highness that the Congress is not only not your enemy, as you happen to believe, but there are in the Congress many strong supporters of your state… Pandit Jawaharlal Nehru belongs to Kashmir. He is proud of it, and rest assured he can never by your enemy... as a sincere friend and well-wisher of the state, I wish to assure you that the interest of Kashmir lies in joining the Indian Union and its Constituent Assembly without any delay.”⁴

Pakistan’s Attack on J & K

Maharaja delayed signing the Instrument of Accession and by September 1947, due to joint Command held by the British Commander-in-Chief, and Mountbatten almost certainly knew of Pakistan’s plan to attack J & K which happened on 22 October. From here began another chapter in an already complicated history of Kashmir.

Nehru insisted that anything in Kashmir can be retrieved only if Sheikh Abdullah were appointed the Head of Administration which finally happened on 30 October, 1947. Once at the helm of affairs Sheikh started taking decisions without consulting the Maharaja. Gopalaswamy Ayyangar, Minister without Portfolio, started meddling in Kashmir affairs, and also poisoning Nehru against Patel. Thus, Nehru, Mountbatten, Sheikh Abdullah and Gopalaswamy combined started ignoring Patel, to whose domain Kashmir affairs belonged, and started taking independent decisions. The situation reached a flash point when Gopalaswamy started giving orders to Kashmir Administration, Army Chief General Thimayya etc. Patel considered it inappropriate and conveyed so to Gopalaswamy:

“I feel that this matter should have been referred to and dealt with by the Ministry of States who would, if necessary, have utilised your Ministry and made the desired arrangements. I would, therefore, suggest that the related papers may now be transferred to the States Ministry and in future the Kashmir Administration may be asked to deal with the Ministry direct.”⁵

What Patel said in the above letter to Gopalaswamy was perfectly in order. After the Instrument of Accession was signed Kashmir had become an integral part of India. It was the job of the Ministry of States [now the Ministry of Home Affairs] to look into its administrative problems which meant matters had to be dealt by no other person except Sardar Patel. This also meant that Mountbatten, Nehru, Gopalaswamy and Abdullah could not have had a free run in Kashmir affairs. Gopalaswamy poisoned Nehru on the issue to such an extent that Nehru wrote what can easily be termed as the most insulting letter to a cabinet colleague, to say nothing of the status of the recipient, Sardar Patel. Nehru, defending Gopalaswamy and his actions, wrote to Patel:

“Gopalaswamy has sent me copies of correspondence which has passed between him and you... I do not appreciate the principle which presumably the States Ministry has in view in regard to its work…. The present issue relates to Kashmir. This raises all manner of connected issues—international, military and others—which are beyond the competence of the States Ministry as such…And that is why I have to take personal interest in this matter as P.M. to bring about co-ordination in our various activities... I really do not understand where the States Ministry comes into picture except that it should be kept informed of steps taken.” ⁶

Nehru did not stop just there. To add insult to injury, he further wrote in the same letter: “May I say that the manner of approach to Gopalaswamy was hardly in keeping with the courtesy due to a colleague?”⁷

Any person of even a little self-respect would have done what Sardar did. He immediately, after receiving Nehru’s letter, wrote on his letter pad in his own hand the following brief letter in reply:

“My dear Jawaharlal,

23 December, 1947

Your letter of today has been received just now at 7 p.m. and I am writing immediately to tell you this. It has caused me considerable pain.

Before I received your letter I had already written to Gopalaswamy a letter of which a copy is enclosed herewith…

In any case, your letter makes it clear to me that I must not or at least cannot continue as a member of Government and hence I am hereby tendering my resignation. I am grateful to you for the courtesy and kindness shown to me during the period of office which was period of considerable strain.

Yours sincerely,

Vallabhbhai Patel.” ⁸

This letter was marked ‘Draft’. Before the letter could be typed and dispatched the news reached out to some, including Nehru and Patel was persuaded not to pursue the matter any further. But this ‘Draft’ letter remained in file of Sardar Patel.

In the matter of Kashmir Sardar Patel was completely marginalised. Nehru was taking decision on his own and decided to refer the matter of Pakistan’s aggression to UNO rather than treating it simply as an act of aggression and dealing with it accordingly. ⁹

Sheikh Abdullah and His Duplicity

The real face of Sheikh Abdullah started coming out of the mask once the Maharaja was out of the way, Sardar was side-lined, and Nehru was vulnerable and confused, after having messed up everything. The Maharaja had washed his hands off, virtually, due to the attitude of Nehru. In one of his letters to Patel he expressed his anguish in following words:

“Sheikh Abdullah and Bakshi are virtual dictators and they have complete power. I wonder what we are expected to do and what the suggestion is. Even when Mr. Mahajan and I have stepped aside are we to be blamed and coerced?” ¹⁰

On 31 December, 1947 Ram Chandra Kak had written to Mahatma Gandhi explaining the whole situation in Kashmir. ¹¹

Once Sheikh Abdullah succeeded in taking over control of the State Government, he started to implement his design to take the control of army as well. ¹² With each passing day Abdullah’s conduct became increasingly unbecoming of a Head of a Government of a State. He became more and more virulent in his attack.

On 29 September 1948 Abdullah gave an interview to the foreign correspondents which not only revealed his mind but also his long term planning. In this interview he virtually declared independence of Jammu and Kashmir. Sardar Patel very well knew the dubious character of Sheikh Abdullah. Therefore, he just could not allow Abdullah to get away with the interview. Patel not only took note of it but also communicated to Nehru in most unambiguous terms on September 30, 1948:

“I am surprised to read this morning an account of the Press Conference which Sheikh Mohammad Abdullah is reported to have held here [Delhi] yesterday.… It is undignified and constitutionally improper for a Prime Minister [Sheikh Abdullah] to attack the Constitutional Head of his Administration. Knowing full well that the latter is not in a position to defend himself or to retaliate….

“Sheikh Sahib has also referred to certain people in India who believe in surrendering Kashmir to Pakistan. I should like to be enlightened who they are. As far as my information goes, there are many more of such people in Jammu and Kashmir State than in the whole India put together….

“I hope Sheikh Sahib realises that nobody has been more accommodating to him than the Government of India and none has extended to him greater understanding and sympathy in his struggle than the people of India… I think it would be difficult to find a parallel in constitutional history to the sort of attack, which he has made on Maharaja. I hope you will succeed in impressing upon him the mistake he has made.” ¹³

Patel never minced words while dealing with the issues. He wrote to Sheikh on the same day, he wrote to Nehru. Patel advised Abdullah not to indulge in such gimmickry and also desist from speaking to press in the interest of Kashmir and the country. His unhappiness over the conduct of Abdullah can be understood by the fact that he sent this letter to Abdullah “c/o The Prime Minister of India.” ¹⁴

Sardar Patel wrote also to Gopalaswamy Iyyangar, who was put in-charge of Kashmir affairs by Nehru, highlighting several points in Abdullah’s interview. It is interesting to note what Gopalaswamy wrote to Patel:

“Before I saw the account of it in the newspapers, I had been told that orally by a person who had been present there of a good deal that he had said but had not appeared in the Newspapers. What was not reported in the papers, I gathered, was even more unjustifiable than what did appear.” ¹⁵

Despite all this, both Nehru and Gopalaswamy Ayyangar got on the business of covering-up. They tried to show that Abdullah was a great patriot. Jawaharlal wrote to Sardar Patel:

“I entirely agree with you that some of the statements that Sheikh Abdullah made in regard to Maharaja were very indiscreet and should not have been made…. He is not a very clear thinker and he goes astray in his speech as many of our politicians do.” ¹⁶

Call for Independent Kashmir

Sheikh Abdullah started showing his true colours sooner than many may have expected. He now started clamouring for an ‘Independent Kashmir’; started giving calls to the landlords, who has gone to Pakistan, to come back. Abdullah declared in an interview to a foreign correspondent (given to Michael Davidson ofScotsman, dated 14 April, 1949):

“Accession to either side cannot bring peace. We want to live in friendship with both Dominions… an Independent Kashmir must be guaranteed not only by India and Pakistan but also by Britain, the United States and other members of the United Nations…. Yes independence – guaranteed by the United Nations – may be the only solution.” ¹⁷

Everyone was horrified at this statement of Abdullah. Even Gopalaswamy, normally so sympathetic and accommodative to Abdullah, wrote to Patel:

“My attention was drawn to the content of his interview earlier in the day. It is most astonishing performance…. I condemn the Sheikhs action and that I feel that what he has told Michael Davidson and what the latter has published will have the most serious and mischievous consequences both in India and abroad… reading between the lines, I suspect a plan, the first step of which is this blessing by the Premier of Kashmir of the idea of an independent Kashmir…and the final step of which may well be perhaps one of the greatest betrayals in history.” ¹⁸

Still we do not see any reaction coming from Nehru!

Reopening the Matter in the Constituent Assembly

The framing of the Constitution of India was virtually in the final stages when the above interview of Sheikh Abdullah was published, Gopalaswamy was made in-charge of framing the Article/Clauses dealing with Kashmir. A draft was finally agreed upon among Jawaharlal Nehru, Sardar Patel, Gopalaswamy, Dr. Ambedkar, the Maharaja of Jammu and Kashmir, Sheikh Abdullah and three of his colleagues – Mirza Mohd. Afsal Beg, Maulana Mohd. Syed Masoodi and Moti Ram Baigra. It was also approved by the Congress Party and the Constituent Assembly. The Article dealing with Kashmir in this final draft was known as Article 306A. But after Abdullah and party went back to Srinagar, they started raising objections to this draft. Abdullah argued that the provisions of Indian Constitution applicable on all other states should not be applicable on Jammu and Kashmir. He just would not listen to any reasoned argument.

It transpires that this move of his had the blessings of Jawaharlal Nehru. It was perhaps Nehru who advised Abdullah to seek the help of Ambedkar for securing the Special Provisions for Jammu and Kashmir. After giving a patient hearing Ambedkar said to Abdullah:

“India should provide all the money for the governance and development of your state. India should undertake to defend your state against Pakistan and other aggressors. Indians should die to defend your state. You will have a separate constitution, separate head of state, separate sets of laws and separate flag. Your people can buy and own land anywhere in rest of India but none who was not born in Jammu and Kashmir could reciprocally buy and own property in Jammu and Kashmir. Indians should be taxed to develop your land, to defend it from all aggressions and you have no obligation at all to the Indian Union. I can never agree to such treatment to any state.” ¹⁹

It is very difficult to guess whether Gopalaswamy was honest in writing in what he wrote to Patel after Abdullah’s interview with Davidson or was he really playing games. Nevertheless, he lamented that it was unimaginable and hurtful that:

“after having agreed to the substance of our draft both at your [Sardar Patel’s] house and at the party meeting, they [Abdullah and company] would let me and Panditji down in the manner they were attempting to do.” ²⁰

But the story gets murkier as we proceed. Though Gopalaswamy and Nehru were blaming Abdullah for the impasse and trying to impress on Patel that they were unhappy with Abdullah’s behaviour, somewhere behind Patel’s back game was still on. Gopalaswamy, on 15 October 1949 sent to Patel for his consideration a draft of the article to be incorporated in the Constitution, replacing Article 306A dealing with Kashmir. Gopalaswamy did not forget to mention in his covering letter that he had prepared this new draft, in place of the one agreed upon by all:

“Without giving up the essential stands we have taken in our original draft, read just it in minor particulars in a way which I am hoping Sheikh Abdullah would agree to.”²¹

“

Patel was aghast at the draft. What Gopalaswamy was calling ‘minor’ adjustments and in all essentials the original draft, was seen by Sardar Patel as follows in reply to Gopalaswamy:

“I find there are some substantial changes over the original draft, particularly in regard to the applicability of fundamental rights and directive principles of state policy. You can yourself realise the anomaly of the state becoming part of India and at the same time not recognising any of these provisions.

“I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes no duty to India or to the Indian Government, or even on a personal basis to you and the Prime Minister who have gone all out to accommodate him.

“In these circumstances, any question of my approval does not arise. If you feel it is right thing to do, you can go ahead with it.” ²²

Things became more and more complicated due to the reopening of the Final Constitution Draft, already unanimously approved by the Constituent Assembly, and that too without anybody raising any note of criticism. Abdullah and three of his colleagues were present when this draft (Article 306-A) dealing with Kashmir was approved by the Assembly. They also did not raise any objection or move any amendment to it. Still, Gopalaswamy and Nehru thought it prudent to open the chapter and start drafting the whole thing afresh (which came to be known as Article 370) as per the whims and fancies of Sheikh Abdullah and his cronies.

Article 370 was inserted in the Constitution, purely as a temporary arrangement, to deal with Kashmir. We must not forget that this Article provided special status to the Jammu and Kashmir, not enjoyed by any other state (altogether 563) who signed Instrument of Accession. However, despite this game was still being played. Sardar Patel’s death on 15 December 1950 removed whatever restraint there was there in the path of Nehru and Sheikh Abdullah. No longer were there any friends or colleagues within the party or in the Cabinet who could apply the brakes on Nehru’s recklessness. After Sardar’s death, Nehru was able to grant even the most unreasonable demands and under Nehru-Abdullah Pact. He virtually agreed to all of Abdullah’s demands. Kashmir was granted special status and now with the Nehru-Abdullah Pact, Article 370 which was merely provisional and very transitory became permanent.

Jittery Nehru, Frankenstein Abdullah

History proved that Nehru’s faith and good will towards Sheikh Abdullah was misplaced Sheikh Mohammad Abdullah had to be ‘dethroned’ and put in jail by none other than Nehru himself.

Let us recall the discussions between Nehru and Gopalaswamy on the one hand and Sardar Patel on the other. On the insistence of Sheikh Abdullah and, of course, with the blessings of Nehru, Article 306A was replaced by Article 370, despite Sardar Patel’s flat ‘No’. When Article 370 was passed by the Constituent Assembly even though purely as “transitional and temporary” Patel, in conversations with members, said,‘Jawahrlal royega.’²³ Fed-up and tired of Nehru’s fits and tantrums Sardar stopped arguing or interfering in the departments looked after by Nehru. Like-wise, he ignored Nehru completely when it came to the affairs of the Ministry of States to the extent that he did not bother to tell Nehru and Rajagopalachari his exact plans about Hyderabad. They came to know about it only after the army had already entered in Hyderabad and preparations were being made for Nizam’s surrender. Patel succeeded in persuading the Cabinet to overrule Mountbatten and entrust the Indian army with the operations against Nawab of Junagadh.

Kashmir was drifting towards despotic anarchy. Patel was well aware of it. Nehru’s handling was making it messier. Even Bakshi Ghulam Muhammad became so perturbed that he met Patel and requested him:

“Why do you not take over the problem and finish it like Hyderabad.”

Patel replied cryptically:

“You go to your friend [Pandit Nehru] and tell him to keep his hands off Kashmir problem for two months and I will undertake to solve it.” ²⁴

Conclusions

Let us visit back to pp.1-2 of this article and see the provisions of Clauses 1 and 3 of Article 370. Once we remove it then in what way will J & K be called a State of Union of India and what will be the validity of signing of Instrument of Accession? The Clause 2 of Article 370 itself flows from Clause 1 and has already outlived its purpose. If Clauses 1 and 3 are deleted; the death of Clause 2 will be a by-product.

The Interlocutors have recommended a review of all the Central Acts and Articles of the Constitution of India extended to the State after 1952. Does this mean 1975 Accord between Mrs. Indira Gandhi (Government of India) and Sheikh Abdullah (signed on their behalf by G. Parthasarthi and Mirza Mohammad Afzal Beg on 13 Nov. 1974) should also be reviewed and discarded. Clauses 1 and 2 of this Accord say:

1. The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India.
2. The residuary powers of legislation shall remain with the State; however, Parliament will continue to have power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution.

It seems that group of interlocutors have hardly applied their mind on the historical and the constitutional legacy of the Jammu and Kashmir. I wonder whether the unwritten mandate of the Interlocutors was to recommend the secession J & K from India. Should the Constitution of India be thrown in dust-bin?

Acknowledgement

Author is grateful to Ambassador P.P. Shuka, Ambassador Satish Chandra and Admiral Barry Bharathan for kindly going through the article and making valuable suggestions. Ambassador Shukla’s editing brought in a lot of clarity in the article.

Notes and References,

1. Sardar Patel’s Correspondence: 1945-50, vol.1. (ed.) Durga Das Ahmedabad, p. xcii
2. Jagmohan, 1991, My Frozen Turbulence in Kashmir, Allied Publishers, Delhi p. 80
3. V.P. Menon, 1957, Transfer of Power in India, Hyderabad, p. 452
4. Letter from Patel to the Maharaja of Kashmir, dated 3 July, 1947. Sardar Patel’s Correspondence: 1945-50, vol.1. (ed.) Durga Das Ahmedabad, pp. 32-34.
5. Patel to Gopalaswamy Ayyangar (letter dated 22 December, 1947),Ibid. pp. 118-119.
6. Nehru to Patel (letter dated 23 December, 1947), Ibidpp. 121-122.
7. Ibid.
8. Ibid. p.122.
9. Nehru to the Maharaja of Jammu and Kashmir (letter dated 21 December, 1947), Ibid. pp. 124-127. See also letter (of 15 August, 1948) from Mountbatten to Nehru, Ibid. pp. 220-222.
10. The Maharaja of Jammu and Kashmir to Patel (letter dated 1 January, 1948), Ibid. p. 147.
11. R.C. Kak to Mahatma Gandhi (letter dated 30 December, 1947) Ibid. p. 146
12. For details see Maharaja’s letter to Patel (dated 6 August, 1948) and enclosed summary of Maharaja’s talk with Sheikh Abdullah and Bakshi Ghulam Mohammad that took place on 5 August, 1948, Ibid. pp. 212-215.
13. Patel to Nehru (letter dated 30 September, 1948), Ibid. pp. 227-228.
14. Patel to Sheikh Abdullah (letter dated 30 September, 1948), Ibid. pp. 228-230.
15. See their letters to Patel, Ibid. pp. 230-233.
16. Ibid
17. Sheikh Abdullah’s interview with Machael Davidson published inThe Scotman, on 14 April, 1949. Also in Ibid. p. 266.
18. N. Gopalaswamy Ayyangar to Patel (letter dated 1 May, 1949) Ibid. p. 267-68.
19. Balraj Madhok, 1954, Dr. Syama Prasad Mookerjee: A Biography, Delhi, p.46.
20. Gopalaswamy Ayyangar to Patel (letter dated 15 October, 1949) Ibid. p. 302.
21. Ibid.
22. Patel to Gopalaswamy (latter dated 16 October, 1949), Ibid. p. 305.
23. Rajmohan Gandhi. 1991, Patel: A Biography, Ahmedabad, p. 517.
24. V. Shankar, 1974,My Reminiscences of Sardar Patel, Bombay, p.214

Is Federalism in Danger Through Central Activism?

Dr. M.N. Buch

Visiting Fellow, VIF

Article One of the Constitution makes India a Union of States. The words of the Article are “India, that is, Bharat, shall be a Union of States”, The key words are, ‘India’, ‘Bharat’, ‘Union’ and ‘States’. 

Adi Sankara brought us the philosophy of ‘advaitya’, or indivisible, in contrast with ‘dvaitya’ or dual, duality. The Constitution by calling India that is Bharat perhaps recognises duality in all thing. Of course this is dabbling in the field of the metaphysical, but the fact is that in our polity there are almost always two facets, that which is stated and that which is real.

To return to Article One, in the Union that is India if there are no States there is no Union. In the United States of America thirteen separate British American Colonies came together to jointly fight the war of Independence. For this purpose they formed an Union, a federation in which the Colonies voluntarily surrendered some of their powers to the Union while jealously guarding what they did not surrender. Under the U.S. Constitution that which is not surrendered to the Union belongs to the States. Residuary powers in the U.S. vest in the States. In India the Seventh Schedule of the Constitution has three Lists of legislative competency. List One is the Union List in which Parliament has exclusive legislative jurisdiction; List Two is the State List in which the State Legislature has, exclusive jurisdiction; List Three is the Concurrent List in which both Parliament and the State Legislatures have jurisdiction, with the laws of Parliament taking precedence . Under Article 248 all residuary powers vest in the Union. 

The India Union really consists of the Provinces of British India, not quite colonies but also not quite States as understood in the present federal context. Their origin lies in British rule as ultimately codified by the Government of India Act 1935. Many of the features of that Act are carried over to our Constitution --- in fact the Act is the basic frame around which the Constitution is woven. It is not as if the Provinces came together to form a Union, for which purpose they surrendered some of their powers to the federation. The division of powers was already done by the Government of India Act, 1935, in section 95 of which one finds an echo of Article 356. Or is it the other way round, with Article 356 echoing section 95 of the Act? Prior to 1935 India was an Unitary State with several federal features, not because federalism was the ruling philosophy but because India was too large to be governed without a high degree of decentralisation of powers and local autonomy. It is in 1935 that this autonomy was enshrined in the Act which was then our Constitution or Basic Law. This has been carried forward, fine tuned and enshrined in our Constitution which has also accommodated the princely states which merged into the Union.

The word federalism does not find any mention at all in the Constitution, except in the Article containing definitions, Article 366, sub-clause (11) of which refers to the Federal Court as constituted under the Government of India. Act 1935 and Article 374, which provides for judges of the Federal Court to be judges of the Supreme Court and for all cases before that court to stand transferred to the Supreme Court. Everywhere the word used is ‘Union’. Is it, therefore, a question of semantics only and we really are a federation. Or is it that we are a Union with federal features without being a true federation?

The Seventh Schedule of the Constitution provides in the Union, State and Concurrent Lists the exclusive jurisdiction of Parliament, the exclusive jurisdiction of State Legislatures and the concurrent jurisdiction of both. List Two of the Seventh Schedule gives autonomy, one can argue sovereignty to the States in the subjects enumerated in the list. Under Article 162 the executive power of the State extends to all matters for which the State Legislature is competent to make laws. Exclusive jurisdiction mandated by the Constitution does give India a strong federal character and, therefore, India can be deemed to be a federation. But it is a federation with very strong centripetal force in which the Centre has a larger role than the States. All federations have this to a greater or lesser degree and even in the United States the exigencies of war, the demands of national security, economic considerations, especially at a time of crisis and the striving for equal opportunity and civil rights have led to increasing federal intervention and enlargement of the role of the federal government. As the world becomes more complex, as modern transport and communications, information technology shrink distances the demand for centralised decision making increases. It is here that in a federation collective decision making through consultation and knowledge sharing has to coexist within decentralised implementation of decisions and an increasing partnership between the Centre, the States, Local Government and the people all become virtually important. A successful federation is one where this is achieved.

As already stated India is a highly centripetal federation. Under Article 312 we have All India Services constituted by the Centre, whose officers hold all the senior posts in the Centre and the States. Our judiciary is not divided into State Judges trying cases under State laws and Federal Judges trying cases under federal laws. Right from the court of first instance, civil or criminal, right upto the Supreme Court, all magistrates and judges have jurisdiction to try cases under any law in force in India, State or Federal. The judiciary is a unified hierarchy with the Supreme Court at the Apex. The control over and audit of the funds and accounts of the Central, State and Local Government vest in a single Comptroller and Auditor General, just as conduct of Parliamentary and State Legislature elections is the responsibility of the Election Commission.

The Centre has other levers to asset its superiority over the State, of which finance is a very important one. Under the Constitution, List 1 of the Seventh Schedule enumerates the taxation powers of the Centre. Entries 82 to 92B give the taxation powers of the Centre and these include income tax, custom duties, excise duties on tobacco and goods manufactured or produced in India, corporation tax, taxes on capital value on assets, estate duty on property, terminal tax on goods and passengers carried by rail, sea or air, taxes on stock exchange transactions, taxes on advertisements in newspapers, taxes on sale and purchase of goods in the course of interstate trade, etc. By contrast the States have the power to impose land revenue, taxes on agricultural income, taxes and duties relating to agricultural land, property tax, excise duties on alcoholic liquors, opium and narcotic drugs, electricity tax and duties, taxes on entry of goods, taxes on vehicles subject to concurrent powers vested in Parliament under Entry 35 of List 3, entertainment tax, capitation tax and rates and stamp duty. With a new VAT and GST regime in the offing the discretion to levy taxes will be further reduced. No doubt Part XII of the Constitution in Articles 268, 269,270, 271 and 272 does provide for distribution of tax revenue between the Union and the States and under Article 280 it is mandatory to constitute a quinquennial Finance Commission. But how much of central taxes will form part of the divisible pool is limited by Article 271 and, therefore, if income tax rates are not increased and instead surcharges are imposed, the State will get no share of this revenue. In other words, if the Centre decides that some revenue should be withheld from the States it can do so and the Finance Commission notwithstanding, the States can do nothing about it. 

Another financial lever available to the Centre is the Five-Year Plan and the Annual Plan. The size of the State Plan is very largely dependent on what the State can raise by way of resources, but by withholding central grants or downplaying sectoral requirements the Planning Commission can definitely influence the size of the State Plan. When we add to this the huge sums of money available from the Centre under schemes such as the National Rural Employment Guarantee Scheme (NREGS) and the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) one would get some idea of how the Centre can manipulate things in favour of a State whose government is friendly to the Centre and how it can harass a State whose government is unfriendly. Clearly the financial equations are heavily weighted in favour of the Centre. In a federation of equality the financial arrangement would be such that the Centre can neither discriminate against, nor in favour of any State. This is not the position in India, which is a major complaint of the non UPA ruled States in the country at present.

There are large numbers of irritants which now seem to be plaguing Centre-State relations. During Nehru’s time there was homogeneity because the same party ruled both the States and the Centre. In Indira Gandhi’s time, thanks to her basically imperious nature and centralisation of powers in the Prime Minister the Centre was totally supreme, State Governors were changed at will and state governments superseded whenever they were found to be inconvenient and the writ of the Centre was supreme and at no time more than during the Emergency. The States were virtually reduced to administrative units which had to obey the orders of the superior government, the Government of India. Federalism virtually died under Indira Gandhi, as did a number of other institutions which are vital for the working of a democracy. On the use of Article 356 the Supreme Court did put a number of restrictions in the S.R. Bommai case, but the real problem is that if the Centre does use Article 356 and destablises a State Government, by the time judicial remedy can begin to take effect the damage has already been done .Paradoxically it is only when the Centre is weak and the ruling coalition is unstable that the States are relatively safe from whimsical central intervention. A weak Centre is not good for the country because decision making at the national level virtually ceases. Therefore, safeguarding federalism through a weak Centre is far worse than the disease itself. Ideally the constitutional position of a strong Centre presiding over a centripetal policy, but with State Governments which are stable and powerful and act as a check on central whimsicality is the best constitutional and administrative arrangement for India. This is the goal towards which one must progress. 

In the United States any law which affects the interests of the States must have the support of the Senate, which is the guardian of the rights of the States in the federal set up. Regardless of the size of the State it sends two representatives to the Senate. In India the Council of States has 238 representatives of States and Union Territories but because the number of members from each State is dependent on the size of the State Assembly, the more populous States have more number of members and the less populous States are marginalised. The method of election being indirect and the total electorate for each State being the Legislature of the State, the decision of the Council of the States is a reflection of the political equation within each State Assembly. The members, therefore, are representatives of political parties rather than of the State from which they are elected. To that extent there is no difference in the working of the House of People and the Council of States because members of both Houses answer to a whip. That is certainly not true of the Congress of the United States of America. The Council of States has no veto powers in the matter of legislation even if it adversely affects the interests of a State. It is only under Article 249 that Parliament acquires the powers to legislate with respect to a matter in the State List in the national interest, provided that the Council of States so resolves. Because members of the Council of States answer a whip the members of that House will, even in a matter governed by Article 249, vote not in the interest of the State or States but as per the diktat of the ruling party. At the level of Parliament, therefore, the States have no guardians to safeguard their interests and, therefore, there is a growing distrust between State Governments, Central Government and legislation enacted by Parliament. The result is that many State Governments resolve not to enforce a law of Parliament. For example in the matter of the Food Safety and Standards Act both Madhya Pradesh and West Bengal have said that they would not strictly enforce this law. Only a weak Centre can tolerate this.

When it comes to matters of national security the situation becomes more serious. Every time when a break-down of law and order takes place State Governments do go running to the Centre for help. The Naxalite movement which has seriously affected the administration of about 160 districts in the country is one example where the affected States are clamouring for central assistance and central forces. When terrorists struck Bombay in 2008 the Maharashtra Government went running for help to the Centre. When natural calamities strike the States want central intervention. At that time no one cries about such intervention weakening federalism. However, when the Centre decides to set up a National Counter Terrorism Centre and tries to arm it with the authority to intervene immediately on receipt of credible information and to neutralise a terrorist attack which is building up, the States cry foul. It is a fact that police is entirely a State subject and police action is the responsibility of the State Governments. With the police throughout India at senior levels being manned by the very IPS officers who also serve the Central Government it is strange that the Centre obviously does not trust the State police and wants to retain powers of direct intervention. This is strongly resented by the States. By failing to take States into confidence and by trying to push through certain measures which have been initiated at central level the Centre has aggravated the situation and created a bogey of federalism in danger versus national integrity in danger. Under Article 355 it is the duty of the Union to protect the States against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Surely the Centre must have the wherewithals to perform its duty under Article 355. We do need a serious dialogue between the Centre and the States on Article 355 versus Entries 1 and 2 of List 2 of the Seventh Schedule of the Constitution (Police) and to see to what extent the power to strike against terrorists on receipt of credible information is available to a Central authority without this being construed as an attack on the rights of the States. It is in this behalf that the Interstate Council must be activated so that all matters relating to Centre-State relationships can viewed through the prism of public interest and solutions arrived at which would enable the Centre to discharge its constitutional obligations without the States feeling that this is an encroachment on their rights. In other words, what this federation needs is a clear-cut understanding of what federalism means under Indian circumstances and how we can create that machinery which ensures smooth relations between the Centre and States without conflict.

Broadly speaking it is not federalism which is under attack but rather individual State Governments and the Centre itself which are under threat because the two opposing parties will not talk to each other, will not create an environment of trust and will insist on trying to score brownie points against each other. In case there is no consensus the Centre must use its authority to decide an issue and then ensure that all States fall in line. Here defiance by one or more States should not be tolerated and, if need be, coercive powers be used to call recalcitrant States to account. Right now federalism is not in danger through Central activism. The fact is that the Centre, by failing to assert itself is failing in its duty and this can be fatal because as satraps break away the Centre itself would wither away. What price then this Union of States?