In Political Science terms, the origins of the institution of State can be traced back to the needs of security of a people settled in a particular territory. State continues to be relevant as the most potent political authority guaranteeing the security of the nation against external and internal forces. Security of the State includes and ultimately means the security of the people – of each individual citizen.
After sixty years, when we look at the state of our Republic, one fact that stands out is that of the tremendous erosion in the faith of the people in the will and the ability of the State – whether at the level of the Union government or the state government – to provide security to the ordinary citizen. No one feels secure today.
Marx seems to have been proved right as the State appears to have withered away from large parts of India. There is no sign of administration in roughly half of the total number of districts. Mafia gangs and terrorist brigades rule, raise taxes, demand protection fee or extract ransom. In some areas where over the ground the façade of democratically elected governments and civil administration exists, it is known to survive by regularly paying survival fees to the underground and also by quietly obeying their diktats in crucial matters of administration.
Violence galore
Apart from threats of external aggression through open war, the national security scenario today has to face (a) proxy wars through attacks by terrorists trained, prompted and supported from across the borders;
(b) armed groups of Maoists, Naxalites and the like spread over various states and committed to overthrowing the State, redrawing the political map of South Asia and shattering the democratic polity and unity and integrity of India through an agenda of continuing insurgencies often helped by foreign funding and liberal supplies of sophisticated arms and ammunition, and (c) religious fanatics and fundamentalists – whether indigenous or exported by unfriendly neighbours – acting on their own or in collusion with terrorists outside.
Blame game
In case after case of such terrorist attacks innocent men, women and children have been massacred in cold blood and large numbers of police or paramilitary forces have got ambushed and annihilated en bloc. Seventy-six jawans of CRPF were recently murdered in the Dantewada ambush, some 50 lives of civilians and CRPF jawans were lost when a bus was blown up. Every time, a political blame game and an effort to shift responsibility follows. Differences are reported even within the ruling party on how to tackle the malaise of terrorism but generally, the stand of the Union government has been that ‘law and order’ is a state subject and therefore the responsibility of the state government. It would be seen that the argument is phoney.
Legal quibble?
It is true that the Constitution demarcates responsibilities between the Union and the states vide the three legislative lists in the Seventh Schedule of the Constitution. ‘Public order’ and ‘Police’ are mentioned as items in the State List. But, it needs to be firmly asserted that none of the three situations of terrorist attacks cited above can be covered by the term ‘public order’ or what is referred to as ‘law and order’ under any rules of legal interpretation.
Item I of the Union List makes defence of “every part” of India the responsibility of the Union. Also item 14 of the same List and Article 253 empower the Union to make laws and implement international treaties, agreements and conventions. The dimensions of terrorism extend beyond the boundaries of individual states. Terrorism has truly become a pan-Indian, inter-state or national problem. It cannot be said that the terrorist activities in the last few years have not threatened the security and called for the defence of some ‘part’ of India even when the Maoists declare an open ‘war’ against the Indian Republic. India has entered into several treaties and agreements with foreign countries on fighting terrorism. She has also been a signatory to some UN resolutions etc., on the subject. It is clear, therefore that it has the constitutional authority and obligation to protect every part of India from terrorist attacks and to implement the international treaties and agreements even if they go against any laws on items in the State List. “Terrorism” itself is not mentioned in the lists of the Seventh Schedule but entry 97 of the Union List provides for powers in all residuary matters vesting in the Union.
Governor’s discretion
The Governor of each state is appointed by the President and holds office during his pleasure. He is thus a representative of the Union in the state. Unlike the President of the Union, Governors of states have been given by the Constitution certain discretionary powers and it is stated that “if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion” (Article 163).
No excuses
In several terrorist infected states, the Governors enjoy specific discretionary powers ordained by the Constitution under the Fifth Schedule. A Governor without consulting the Council of Ministers of the state may decide not to apply certain state laws or rules to scheduled and tribal areas of the state. In fact, in a well argued legal opinion in response to a reference by the Union government, the Attorney General has recently (May 2010) confirmed that the Fifth Schedule areas could be administered directly through the Governors and in doing so, they were not bound by the advice of state governments.
Thus, in the Fifth Schedule forest and tribal areas of Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa, Andhra Pradesh and Maharashtra, the Union government is specially empowered by the Constitution to take through the Governors whatever action it deems necessary to tackle the problem of Naxalite, Maoist or other terrorist menace as also implement development measures to ameliorate the conditions of poor tribals and forest dwellers. In all this, under the Constitution, it is futile to blame the Constitution or the state government for the failures in preventing terrorist violence in these areas.
Duty of Union
Finally, Article 355 of the Constitution categorically makes it “the duty of the Union to protect every state 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. The obligation to protect the states carries with it the power to discharge the constitutional obligation and take all the necessary steps for the purpose.
If one goes back to the Constituent Assembly and the intent of the founding fathers, it was at the suggestion of Jayaprakash Narayan and on demand of several erstwhile princely states that this obligation was cast on the Union government. It is to be noted that the words “Public order” or “law and order” are not used in Article 355. It uses the term “internal disturbance” and what is happening in the Naxalite / Maoist infected states is a situation much worse than “internal disturbance”. There can thus be no ground for the Union government to shirk and disown responsibility, to play politics and try to pass the buck to state governments who can hardly be expected to be equipped to meet the challenge posed by terrorists of different hues.
The Constitution does not come in the way of the Union government discharging its duty to conclusively fight the terrorist menace, in the words of the Home Minister, by “preventing a terrorist attack, containing a terrorist attack should one take place, and responding to a terrorist attack by inflicting pain upon the perpetrators”. It can change the national security architecture as it deems necessary by creating national agencies like National Counter-Terrorism Centre (NCTC) as once in December 2009 envisaged (but only envisaged) by Shri P. Chidambaram. It does not need any constitutional amendment or even a legislation. In fact, not doing so is a clear dereliction of its existing constitutional duties on the part of the Union government.