Twelve Chief Ministers have got together to oppose the Union Government’s move to create the National Counter Terrorism Centre (NCTC) to fight terrorism. The CMs complain that the centre will violate federalism through the provisions of the proposed body by infringing on the powers of the states. Law and order is a state subject.  Home Minister Mr. P Chidambaram pointed out that internal security was a “shared responsibility” between the centre and the states. He said  the Constitution “assigns law and order and the police to the State government but also assigns the Central government the responsibility of protecting every part of India from external aggression and internal disturbance under Article 355”. 

However, if there is shared responsibility between the centre and states should not the creation of NCTC have also implied shared consultation? This never happened. The Central government erred on procedure. The states have understandably objected. However it would be tragic if the states because of Mr. Chidambaram’s mishandling block the creation of NCTC. Terrorism is a real nationwide threat. It would be a pity if the states do not acknowledge this and end up by throwing out the baby with the bathwater.

Clearly what is required is reappraisal of the proposed NCTC after fresh discussion between the centre and the states. According to security analyst Mr. B Raman the government has deviated from the American institution from which it drew inspiration. The American body does not have the power to arrest, interrogate or prosecute as would the Indian model. Mr. Raman has pointed out that NCTC’s powers, which violate federalism, would seriously impede investigation. Parallel powers exercised by the state body and central body would not help investigation but create confusion and chaos. It is welcome that the states have united on the issue of federalism to oppose the centre’s bulldozing. But it is not enough to oppose the centre’s usurpation of power. The states must present a suitable alternate mechanism for monitoring NCTC after shared consultation.

Writing earlier on a proposal to create a new national alternative before Mr. Naveen Patnaik raised the current NCTC issue to forge potentially a new federal alliance, I wrote in these columns that

“if the federal principle implied in our Constitution deserves compliance, so does the pro-active role of the President enshrined in it. Only the authority of an executive President at the centre balanced by decentralized governance at the grass roots can ensure national unity and federal democracy at the same time”.  

Gujarat Chief Minister Mr. Narendra Modi has suggested that the centre should call a meeting of all the state governments to discuss centre-state relations in the light of the recommendations by the Sarkaria Commission. But why call an ad hoc meeting yet again to address a problem that keeps recurring? One suggests to Mr. Modi and all the other chief ministers to follow their protest against the centre to its logical end by seeking permanent systemic reform for ensuring federalism in governance. 

Such reform would be achieved by implementing the neglected provisions of our Constitution. Article 263 of the Constitution related to the Inter-State Council reads: “If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of –

1. inquiring into and advising upon disputes which may have arisen between states;
    
2. investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
    
3. making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject.”             

Does not this unused Article of the Constitution offer a permanent mechanism to deal with the recurring problem of centre-state relations? There is a crucial rider of course. The Inter-State Council obviously cannot be headed by the Prime Minister whose mandate is limited to the Lower House of Parliament. It is only the President who has the electoral mandate of both Houses of Parliament and all the state legislatures in the country. The Council would have to be headed by the President.

That would open a can of worms for our politicians wedded to the presently distorted interpretation of the Constitution. If the President’s pro-active role in the functioning of the Inter-State Council is accepted, it would open the door to reappraising all the presently neglected and unused powers of the President. That would change the system, not by violating the Constitution but by following it in letter and in spirit. Are all the chief ministers clamouring for justice prepared to go the whole way to genuinely reform the system and establish true federalism?