Author: Vinay Sitapati, New Delhi
Publication: The Indian Express
Dated: October 29, 2008
URL: http://www.indianexpress.com/news/legal-experts-counter-shivrajs-stand-on-rejecting-gujcoca/379438/
Introduction: The UPA government had previously
found fault with GUJCOCA because it encroached upon areas that were solely
within the domain of Parliament. But in a recent decision, the Supreme Court
held MCOCA (identical to GUJCOCA) to be within the ambit of state legislative
power
Union Home Minister Shivraj Patil has said
that the reason why the UPA Cabinet has withheld permission to GUJCOCA is
that the proposed state law has the same draconian provisions as those of
POTA, which the Union Cabinet had repealed. His statement came during a recent
'Idea Exchange' session with The Indian Express. He was responding to a question
as to why the Cabinet had withheld permission for GUJCOCA - Gujarat's tough
new anti-terror law - while the Congress-led Maharashtra Government continued
to use an identical anti-terror law: MCOCA.
The Home Minister in his reply invoked the
constitutional principles of federalism, and the sanctity of Center-state
relations.
For the UPA Cabinet to give its approval for
GUJCOCA, Patil said, would mean that it would be going against its express
decision with regard to POTA. If Shivraj Patil's objection to GUJCOCA was
based on principle, why then did the UPA permit MCOCA to be used by the Congress-led
Maharashtra Government? Was this not double standards? Shivraj Patil denied
any hypocrisy, relying instead on Article 254(2) of the Indian Constitution.
Under Article 254(2), state laws falling under
areas on which the Centre and state can jointly legislate (concurrent powers)
require presidential assent. Since "criminal laws" and "criminal
procedures" fall under the "concurrent list", state anti-terror
laws require presidential assent. Presidential assent, in practice, means
the approval of
the Union Cabinet. Shivraj Patil pointed out
that this assent, once given, cannot be withdrawn.
"Permission for MCOCA was given by the
NDA Government; the UPA Government cannot withdraw that permission,"
Patil said. The only option for him was to tell the Maharashtra Government
to repeal MCOCA, and that would be an improper interference into the functionings
of the state Government.
Several constitutional experts find this argument
unconvincing. Constitutional law scholar Sudhir Krishnaswamy points out that
"the whole point of Article 254(2) is to enable the state to pass laws
that Parliament may disagree with. It is therefore perfectly compatible with
the principles of federalism for POTA to be repealed at the central level,
but GUJCOCA to be permitted at the state level".
Article 254 thus allows for unique situations
in certain states to necessitate special laws for that state. This is exactly
what Maharashtra cited, when the NDA Cabinet gave its assent for MCOCA. There
is no reason why GUJCOCA should be treated differently. Assent under Article
254 need not be taken as a validation of GUJCOCA by the UPA. Krishnaswamy
also points out that the President is not always a "titular" head
who must follow the advice of the central Cabinet. The President, under Article
254, should perhaps factor in the requirements of states, to whom she is also
responsible. In other words, President Patil should also consider the views
of the Gujarat Government, instead of solely listening to the UPA Cabinet.
Constitutional lawyer Vivek Reddy also dismisses
Patil's legal argument as political posturing. "If Patil has a problem
with the POTA-like provisions of GUJCOCA, the UPA Cabinet can always give
conditional acceptance to GUJCOCA, withholding consent for the provisions
that they don't like. But it makes no sense for them to withhold consent for
the whole of GUJCOCA."
Gujarat Chief Minister Narendra Modi told
The Indian Express that he is yet to receive a response from the UPA Cabinet
listing out exactly what provisions of GUJCOCA they have a problem with. Reddy
also points out that the "flexible federalism" in India's constitution
means that Patil could well decide against POTA at the central level, while
acknowledging the unique terrorist threat that some states face, and assent
to special anti-terror laws for that state. The UPA Government had previously
found fault with GUJCOCA because it encroached upon areas that were solely
within the domain of Parliament. But in a recent decision, the Supreme Court
held MCOCA (identical to GUJCOCA) to be within the ambit of state legislative
power.
In another recent judgment, the Bombay High
Court also upheld the validity of MCOCA after striking down a few provisions.
Narendra Modi told The Indian Express that GUJCOCA was in conformity with
the observations of the Bombay High Court. UPA Cabinet permission for GUJCOCA
is being withheld for several reasons, but "constitutional compulsions"
is not one of them. It seems more an act of political choice, rather than
legal propriety.
