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Tuesday, April 13, 2021

State of the Union

Does federalism weaken India’s response to terrorism?

Written by Ashutosh Varshney
December 5, 2009 3:10:56 am

The emerging security debate on the first anniversary of the Mumbai attacks has neglected a vital constitutional question. Does federalism by any chance weaken India’s counter-terrorism effort? Without considering the relationship between federalism and national security,we will not understand the underlying factors driving India’s counter-terrorism effort. The nation’s centre-state laws and practices are a principal obstacle in developing a stronger response. If not addressed imaginatively,Mumbai-style attacks simply cannot be ruled out.

Scholars of comparative federalism generally call India’s linguistic federation a spectacular institutional success. One of the greatest indicators of the success is the disappearance of language riots,common in the 1950s and 1960s,after the linguistic reorganisation of states was completed. But for all its successes,India’s federalism now faces a new and extremely serious challenge.

Central to India’s internal security are three laws and practices.

First,according to India’s Constitution,internal law and order are entirely on the so-called “state list”,not on the “Central list” or “concurrent list”. Only under President’s rule can Delhi take over the internal security of a state. “Federal crime” is not a concept in Indian law,as is it in the US,and it cannot be introduced unless the Constitution is amended. Its relevance has been debated within government circles since the late 1960s,but the idea of federal crimes remains legally elusive. Even when the Indian Airlines flight from Kathmandu was diverted to Kandahar in December 1999,leading to India’s external affairs minister agreeing to a humiliating agreement that released well-known terrorists from Indian jails in return for the safety of passengers,the case was not,and could not be,registered as a federal crime. Indian Airlines reported to Delhi police that its plane,due to arrive in Delhi,was missing. “Hamaara hawaai jahaaz nahin aayaa”. It was registered as a Delhi-based crime.

Second,Central agencies — including the national security guards (or commandos),who are especially trained for urban terrorism — simply cannot function without the cooperation of state police. Requisition from state governments is legally required before the commandos can be used. India’s commandos were all based in Delhi when Mumbai was terrorised. After Mumbai,hubs have been created in Hyderabad,Chennai,Kolkata and Mumbai. As a consequence,they can be deployed more quickly,but for operations,they still need the assistance of state police. NSG commandos have no knowledge of local specificities. State police remains the greatest repository of ground-level intelligence in India.

Third,all serious students of terrorism recognise that intelligence is central to the prevention of terrorism. Since terrorists are willing to sacrifice their lives,one can only try to minimise damage,not avoid it,once the act of terror has begun. Unfortunately,India’s intelligence system is fractured and weak. The Central Bureau of Investigation (CBI),the institution often identified as the leading intelligence agency of India,is most unlike America’s Federal Bureau of Investigation (FBI). In contrast to the FBI,which combines intelligence and investigation functions,the CBI is primarily an ex-post investigation body,not an intelligence collecting agency. For the latter,it depends primarily on state police,and secondarily on Delhi’s Intelligence Bureau (IB).

The CBI was established under the Delhi Special Police Establishment Act,1946. Its direct jurisdiction covers Delhi and the centrally administered Union Territories. Unlike the FBI,it can not pursue investigation at the state level on its own. To investigate,it must receive state requisition or consent,or be ordered to do so by the Supreme Court or a High Court. In other words,for it to function well,it depends heavily on state police. It can also team up with Delhi’s Intelligence Bureau (IB),but the IB reports to India’s home ministry,whereas the CBI reports to the ministry of personnel. The cooperation is not always forthcoming. More importantly,the IB simply does not have the same intelligence-gathering machinery as the state police does. State governments have the constitutional right to deny permission for CBI investigations. Goa,for example,did so during the late 1990s. Maharashtra did not hand over cases concerning the Mumbai blasts of 1993 to the CBI for almost a year. Northeastern states have often denied permission to the CBI.

At the root of this problem is the dark underbelly of Indian politics: corruption and vendetta. The CBI is not trusted by state leaders for they believe it is politically used by Delhi to target adversaries. The adversaries may be accused of corruption,or even violent crime. It does not matter that such corruption or criminal conduct may often be real,not imagined. But over the last 20-30 years,as politicians accused of crime and corruption have,in particular,risen in politics,the CBI has been caught in a political crossfire. Delhi often wants to use it,but the CBI faces enormous resistance at the state level,especially if the state government is run by a coalition or political party different from that ruling in Delhi.

So long as the Congress party ruled both in Delhi and the states,there was no such resistance. Such matters were handled as internal negotiations within the party. Moreover,in the 1950s and 1960s,the era of Congress dominance,no one had imagined the possibility of terror,let alone cross-border terror. The rise of a coalitional era might have made Indian politics much more democratic,federal and competitive,but national security has suffered as a consequence.

Although this problem cannot be fully resolved unless corruption and crime begin to disappear from Indian politics,India’s political process has thrown up a potential solution. Via a Parliamentary act,a National Investigation Agency (NIA) was created after the Mumbai attacks. In theory,the NIA can become India’s FBI,but serious impediments remain.

The NIA Act was created using an entry related to defence of India on the Central list. Of all security matters,only defence of India is handled by Delhi. What is generally called internal,as opposed to external,security is almost entirely under state jurisdiction. The NIA Act is not a constitutional amendment,which would have required approval of two thirds of Parliament and half the states,not easily possible in a coalitional era. The concept of a federal crime,requiring a constitutional amendment,has still not been introduced precisely for the same reason. States would not give consent if they believe that the NIA might become a much more powerful CBI.

The NIA does not yet have an elaborate organisational structure of its own. And that may not happen until two conditions are satisfied. First,if more Mumbai-style attacks happen,it is possible for security to become an overriding national objective that no political party can ignore without peril. Thus far,terrorism is an element in India’s elite politics,not in its mass politics. It does not determine election outcomes. Second,if the Congress party,currently showing signs of revival,becomes even stronger,both in national Parliament and at the state level,it would also allow the possibility of a constitutional amendment. The first condition is not desirable,the second somewhat improbable,if not impossible,at the moment.

India’s home minister is well known for his intellectual firepower,but his hands are tied. He can only do the following: modernise the intelligence system through new technologies; try to generate a better knowledge system — for example,a national counter-terrorism centre — that supports national security; create institutions that seek to coordinate the rather fractured intelligence. State governments might also create their own commando forces,as Maharashtra appears to be doing and Andhra did some years back. All of these measures would help,but the home minister cannot legally force a state government to accept the dictates of the NIA unless a constitutional amendment introducing the concept of federal crime is put through. However desirable such a concept in the 21st century might be,India’s federal polity will not easily allow it to come about.

writer is professor of political science,Brown University. His books include ‘Ethnic Conflict and Civic Life: Hindus and Muslims in India’

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