FEDERALISM UNDER ATTACK

In dramatic flurry of raids & misuse of the central enforcement agencies, the ruling party continues to show scant respect to a sacred federal structure.  

By Anil Anand

The Centre-states relationship has always been a tricky business all through the seven decades democratic history of the country. The definition of this relationship is conveniently changed irrespective of the legal and Constitutional provisions depending upon which political party is on what side of the divide; occupying treasury benches or in the opposition. Even the ideologically divergent political parties such as the Congress and the BJP are on the same page when it comes to defining the Centre-states relationship as per their political needs.

When a 40-member strong team of the Central Bureau of Investigation (CBI) landed at the doorsteps of the Kolkata Police Commissioner, Rajiv Kumar, during a late evening to question him on the infamous Sarda chit fund scam, it was bound to have serious repercussions and raise many questions afresh on the Centre-states relations. There is no doubt that electoral politics is at the centre of this move but the development has raised more serious questions directed at legal and Constitutional aspects.

West Bengal is currently on the political radar of the BJP as part of its “look east” policy to find new political grounds in order to make up for its likely loss of seats in states like Uttar Pradesh. The rich kitty of West Bengal’s 42 seats is tantalising enough a proposal for the hyper-active duo of Prime Minister Narendra Modi and BJP chief Amit Shah to pull all stops and unsettle a well-entrenched street-fighter chief minister Mamta Banerjee who single-handedly plotted the downfall of the once mighty Left block.

As it happened just ahead of the Lok Sabha elections, the CBI’s purported raid on the police commissioner’s residence has blown into a three-dimensional crisis. Under the circumstances anyone would ignore the political significance of the CBI’s action at his or her own peril. At the same time it has generated heat on the role of CBI on one hand and legal and Constitutional questions involved on the other side.

The action, of course with the consent of the current dispensation at the Centre, has resulted in another political crisis at the national levels. The timing and the manner in which CBI raid was planned has raised serious questions of impropriety with political needs taking precedence over provisions of the Legal-Constitutional framework.

The CBI’s move came two days after various opposition parties including Mamta Banerjee Trinamool Congress held back-to-back meetings as part of the efforts to forge an alliance of the opposition parties against BJP. The result was a direct confrontation between CBI team and Kolkatta Police followed by the chief minister sitting on a dharna in support of the police commissioner and the police even detaining members of the raiding team. This was an unprecedented situation that naturally blew into a major political slugfest between Modi-Shah-led BJP and the opposition parties who in fact got a strong reason to speedily come together to face the might of the ruling party.

On her part Mamta Banerjee was quick to issue a clarion call to heads of all central forces and chiefs of other state police forces, to resist such centre-propelled moves that could demoralise the state police and jeopardise the federal structure. Neither the shoddily planned CBI raid that ultimately failed to materialise, nor Mamta’s clarion call and other related actions are in any way in the broader national interest.  

Under the light of these avoidable developments and the resultant political slugfest impinging on federalism, it was but natural for the issue of Centre-states relationship to take the centre-stage. Although the Supreme Court while hearing this matter took a middle course by directing Kolkata police commissioner to face the CBI team outside West Bengal, it is imperative that the legislature and higher judiciary look afresh into the issue of Centre-states relations.

More clarity should come on both legal and Constitutional issues raised by the West Bengal episode. The fact that the country is currently ushering into a coalition politics era which is here to stay for some more time and that the rules of adversarial politics have further got vitiated, it is imperative that rules of federal structure are more clearly defined.

Incidentally, the Apex Court has till date given two important judgements related to federal issues and both pertained to West Bengal. The Court’s judgement delivered on February 17, 2010 in State of West Bengal versus The Committee for Protection of Democratic Rights, West Bengal, was unanimous. It had raised a very important issue that impinged on federalism. It was whether the High Courts and the Supreme Court had the power to refer investigation of an offence to the CBI, directly without prior approval of the state government concerned.

The subsequent judgement of 2014 in Subrata Chattorji versus Union of India also relied on the 2010 judgement. Under the present circumstances and more so recent developments in West Bengal, both these judgements need to be revisited to meet the new challenges.

There is a frequent shifting of the goal post particularly by the Centre when it comes to defining law and order as a state issue. The goal post, as seen over the decades, has been conveniently shifted when it is politically expedient for the party ruling at the Centre to interfere into the functioning of a particular state.

Normally, the rule is that federal or national investigative agencies cannot investigate a case in a state’s territory without the local government’s permission. But this rule has been flouted umpteen times by now.

It is true that the Supreme Court can, when satisfied that there is good reason to do so, direct the CBI to investigate a crime in any state. However, in the Sharada case, although there was an order directing the CBI to investigate the case, the Court was not monitoring the case and had directed that all further applications should be made before the High Court.

The Supreme Court while doing so had directed the states to “cooperate” with the investigation, an expression which must be understood in its ordinary meaning that is the state should facilitate the investigation. However, this expression has also been misinterpreted on many occasions, depending on the political expediency and electoral needs.