Redefine powers to end Centre-state tussle

The war of words between the NDA government and states ruled by the Opposition parties over the former’s alleged ‘overreach’ into the jurisdiction of the states, especially in areas of security and investigation, has become a constant feature.

The latest incident of attrition is the ‘recall’ of the West Bengal Chief Secretary to the Centre, consequent to the alleged discourtesy shown to the Prime Minister by West Bengal Chief Minister Mamata Banerjee on May 28.

It may look bizarre that the Chief Secretary, who was given a three-month extension by the Central government in public interest for supervising pandemic management on a recommendation by the CM, was asked to report to New Delhi on

the day of his retirement (May 31). It may also appear quixotic that a bureaucrat is being punished as the state political leader, who inflicted a crushing electoral defeat on the BJP on May 2, cannot be administratively ‘punished’.

This constant Centre-state battle as we saw recently in West Bengal, Tamil Nadu and Kerala, where Central agencies followed the BJP leadership during poll campaigns by undertaking searches and reopening old criminal cases, has confused the public, which is the worst sufferer by way of uncertain delivery of services by the government during the pandemic.

The original distribution of powers between the Union and the states is mentioned in Schedule 7 of our Constitution. It is more or less similar to Schedule 7 of the Government of India Act of 1935. It will be interesting to go over the debates of August 29, 1949, to study how this list was evolved that day.

In 1887, Viceroy Dufferin defined the Centre-state relationship in the areas of security, policing, intelligence and crime by placing more responsibility on the British state police and through British “Residents” in princely states. He wanted to combine “Intelligence” and “Crime” as he did not want an impression that the government was “spying” on Indians like the “Third Section” of the imperial Tsarist Russia. In other words, he wanted to camouflage political intelligence within crime intelligence. Hence, only a small office was created at the Central level to coordinate activities which was known as the “Central Criminal Intelligence Department”.

While drafting our Schedule 7, the name was slightly changed as the “Central Bureau of Intelligence and Investigation”. The person who persistently questioned Dr BR Ambedkar on this was Naziruddin Ahmad from West Bengal who moved 40 amendments to the draft.

Every item mentioned in the Central, State and Concurrent list was debated and voted. Ahmad reminded the Assembly that the original draft had named it as “Central Intelligence Bureau”. The redrafted designation as “Central Bureau of Intelligence and Investigation” was unacceptable as investigation of crime was a provincial subject and “we have already conceded that”.

“If we now allow the Central Government also to investigate, the result would be that for a single crime, there must be two parallel investigations, one by the Union Government and the other by the state government. The result of this would be that there will be a clash and nobody will know whose charge-sheet or final report will be acceptable,” he added.

What he prophesied in 1949 seems to have come true under the present BJP government: “I find there is no limit to the hunger of the Central Government to take more and more powers to themselves and the more they eat, the greater is the hunger for taking more powers”.

Faced with this opposition, Dr Ambedkar clarified: “The point of the matter is, the word ‘investigation’ here does not permit and will not permit the making of an investigation into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word ‘investigation’ therefore is intended to cover general inquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do”.

In other words, he supported Viceroy Dufferin’s policy of camouflaging political intelligence with a façade of criminal intelligence. That was the reason why the Director Intelligence Bureau (DIB) used to chair a crime conference at least till 1976 when I used to attend regularly. In later years, the Central Bureau of Investigation (CBI) started holding national crime conferences.

It is significant that the Central Government avoided having any Central Police with investigating powers till 1946 when it passed the Special Police Establishment (SPE) Act to deal with wartime corruption in Central government. In 1963, the SPE was renamed as CBI, with no separate law to govern its working. Under Section 6, the consent of the state government was mandatory before the CBI undertook any investigation in their jurisdiction. This is based on Schedule 7.

The present trend of using the National Investigating Agency (NIA) or Enforcement Directorate (ED) to carry out parallel investigations in the states without state concurrence thus goes against the “basic structure” of our Constitution as given in Schedule 7. The Centre cannot carry out any “investigation” under the Criminal Procedure Code.

Nowadays, the ED appears behind every politically important crime investigation in Opposition-ruled states, the latest being the “money laundering” case against former Maharashtra Home Minister Anil Deshmukh, which is being investigated by the CBI under the orders of the Bombay High Court. The ED has now become a self-styled “super anti-corruption” body with the Central Government when no such arrangement exists in our Constitution.

On August 21, 2020, Law Street India published an excellent paper on how the ED is arbitrarily exceeding its charter, especially when it does not have police powers under the 1861 Police Act. A 2018 Delhi High Court judgment was referred to a higher bench to examine whether the ED has the CrPC powers of police under the Money Laundering Act. This is not yet settled.

There is, therefore, urgent necessity for the states concerned to move the apex court to issue clear guidelines to the Centre and the states as enshrined in the Constitution.