In a legal opinion that could re-ignite the debate on federalism in general and powers of states to deal with terrorism in particular,Solicitor General Mohan Parasaran has told the government that only Parliament and not the state legislature has the exclusive power to legislate on an issue dealing with terrorism. The Union Law Ministry received the opinion a few days ago.
In his opinion on whether President Pranab Mukherjee should give his assent to the Madhya Pradesh Aatankvadi Evam Ucchedak Gatividhiyan Tatha Sangathit Apradh Niyantran Videheyak,2010,an anti-terrorism law modelled after the Maharashtra Control of Organised Crime Act,1999 (MCOCA),Parasaran advised the President against giving his assent to the Bill.
In my view,the present Bill is a clear instance of the state legislature making a law that substantially relates to a matter falling within the Union List,and thereby,trespassing into Parliaments legislative domain. The law as outlined hereinabove is clear that in such an instance,the Bill would be ultra vires and void ab initio such that the applicability of Article 254(2) stands excluded and no protection of operational validity by way of Presidential assent can be afforded to the same, the opinion said.
Passed by the Madhya Pradesh Assembly on March 25,2010,the proposed law was referred by the Governor,taking resort to the powers under Article 200 of the Constitution,to the President for consideration and assent on the ground that it was inconsistent or repugnant with legislations passed by Parliament,particularly the Unlawful Activities (Prevention) Act,2008 as well as the Code for Criminal Procedure,1973,the Limitation Act,1963,and Indian
On October 22,2010,the Union Ministry of Home Affairs said the proposed Bill was repugnant to the main central legislation dealing with terrorism the Unlawful Activities (Prevention) Act,2008.
In his opinion,Parasaran pointed out that the purpose behind the Madhya Pradesh Bill is to provide for special provisions for prevention and control of and dealing effectively with terrorist and subversive activities and organised crime….
He said while the matter of public order is clearly within the States legislative competence,the same could not be said of terrorism,which,he pointed out,is not a specific subject that appears in any of the Lists.
In his opinion,the senior Supreme Court lawyer also tried to settle the issue of the Madhya Pradesh legislation being different from MCOCA and a similar legislation,the UP Gangsters and Anti-Social Activities (Prevention) Act,1986. Both these laws,he said,deal with issues of public order and organised crimes,something that has been held so by the Supreme Court in various judgments.