The thin line between “tyranny” and “liberty” is being increasingly seen today. As the federal design of the nation gets transformed, it has paradoxically accelerated central dominance

By Upendra Baxi

One may at least think and write about the federal design—the principle and the detail—of the constitutional schema of federalism at the level of political action and constitutional law and culture. The distribution in Union-State relations of various powers for legal and political action may be perceived as an intensely political matter. However, constitutional adjudication proceeds on first principles of jurisprudence (what is good as a matter of legal theory) and demosprudence (what is good for constitutional cultures and constitutional faith).

Chief Justice of India Ranjan Gogoi, along with Justices Deepak Gupta and Sanjiv Khanna, has rung down the curtain, as it were, on the unfolding drama in West Bengal concerning the possible inquisition and arrest by the CBI of Rajeev Kumar, Kolkata’s Commissioner of Police. Chief minister Mamata Banerjee’s sitting on dharna in Kolkata (at the same site where she sat in protest against the CPM-led government during the acquisition of land in Singur for the Tata Nano factory) was preceded by two dharnas earlier in Delhi by chief minister Arvind Kejriwal, one late last year at the house of the Lt-governor, and a little earlier outside the Central Secretariat protesting Union polices with regard to the state of Delhi. Apparently, recourse to mass direct action by chief ministers to “save the Constitution” is emerging as a means of attempting a reversal, or an amelioration of Union policies. It is also considered an appropriate way of achieving Opposition solidarity when general elections are looming large, and when public perception of politics as vendetta, and law as a programme of avenging Opposition leaders is seen as growing. The counter-perception that this is a war declared on systemic governance corruption should be welcome. But is it equally relevant that while looking at the beam in others eyes, one also looks at the moat in one’s own (as the Biblical saying goes)?

The Supreme Court ordered on February 5, 2019 that the police commissioner “would faithfully cooperate with the investigating agency at all times”. But, it has also ordered that “that no coercive steps including arrest shall be taken against the Commi­ssioner of Police”. At the same moment, Shillong stands designated as the place where he will “appear before the investigating agency… on such date(s) as may be fixed”.

The order deftly avoids the larger question of whether the state of West Bengal may withdraw its consent from the CBI to operate in the state posing some insuperable difficulties in the workings of special investigative teams. Notices have been issued for contempt proceedings, initiated by the CBI, agai­nst the chief secretary of West Bengal, the Director of Police and Commi­ssioner of Police, Kolkata, and the hearing is listed for February 20. No adverse finding of fact has been recorded, although the CBI appears to be convinced that the official was uncooperative and has committed contempt and the purported arrest of its officials also amounts to contempt. But the order only allows non-coercive interrogation and certainly places a ban on the arrest of the Commissioner.

This is indeed a Solomonic verdict. High stakes are involved in India’s most volatile year with the 2019 general elections to be shortly announced. The Opposition has planned a national anti-Narendra Modi coalition, which is fought valiantly by the ruling NDA coalition. The Court decided the matter on merits, but each side applauded the order as upholding their contention. The BJP was able to say that it was a vindication of the CBI, whereas an almost united Opposition that assembled in Kolkata held it as “victory of democracy”. Mamata Banerjee applauded the order as upholding constitutional good governance nurturing democracy, whereas law minister Ravi Shankar Prasad hailed it as a victory of crusade against corruption and for probity and integrity in national life. Both sides emphasized ways in which the order reinforced their stand. How long these conflicting interpretations will prevail is anyone’s guess. The February 20 contempt hearing will perhaps provide some indications whether contemptuous action resulting in obstruction of the investigation actually occurred.

The CBI proceeded on the basis that it was merely following an investigation path, but the context and timing of possible action, which occurred shortly after the Kolkata conclave (a site for a show of strength by almost all Opposition leaders) escalated suspicions. Did a pattern of relative quiescence (the case against Sharada chit fund multi-crore scam began in 2014) find immediacy now? This suspicion can be dispelled only when some incontrovertible details about the workload and the schedule of investigations becomes known. Further, although the government of West Bengal disbursed an amount of Rs 500 crore to the victims of the scam, not much is known about victims in the markets of avarice. Does not redressing victims of injustice remain as important a task as pursuing those offenders who are still at large? Does not the tendency to engage in blame-game make the structural issues of reform of the sector invisible to the evangelists of good governance?

There also remains the basic problem of delays in the criminal justice administration.

IS THE CBI A CONSTITUTIONAL BODY?

This case illustrates the last problem very poignantly. On November 6, 2013, Justices IA Ansari and Indira Shah of the Gauhati High Court reversed a judgment of a learned single justice (on November 30, 2007) and declared the very existence of the CBI ultra vires. The ruling that “the CBI is not a statutory body”, because “constituted under an Executive Order/Resolution” of 1963 would mean that only the states are “competent to legislate on the subject of police” and, therefore, the central government could not have taken away the power and “create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India”. The Court ruled that when state action is “neither sanctioned by a legislation nor … taken in valid exercise of its executive powers, the ineffaceable mandate of Article gets smudged”.

In this case, the petitioner, Naevendra Kumar, an employee of Mahanagar Telephone Nigam, was charged under the Prevention of Corruption Act. He reached the appellate Bench after “a decade of litigation”. But fate had other plans for him. The High Court decision was stayed at a special Supreme Court hearing by the bench of Chief Justice P Sathasivam and Justice Ranjana Desai, who held a special sitting at the residence of the CJI on February 17, 2014.

No doubt, despite some recent difficulties, the CBI has emerged as professional body and has earned a just reputation for its professional expertise. Public demands for a CBI investigation have increased its reputation. To invalidate the very existence of the CBI on the ground that the resolution constituting it needed presidential assent and that it could not be treated as a police force seemed, indeed, a bit odd.

The Union of India argued that the High Court’s decision will adversely im­pact thousands of criminal cases pending across the country; it apprehended that the judgment would directly impact about 9,000 trials currently underway and about 1,000 investigations being undertaken by the CBI. Also, it was argued that if the High Court order was not stayed, “it will frustrate the law machinery and may result in multiplicity of proceedings”, adding that the 50-year-old resolution issued by the home ministry through which the CBI was established had stood the test of time.

Could then the High Court have decided otherwise? It felt it had no alterative because “the learned ASG as well the learned Amicus Curiae, with commendable fairness, have admitted that in the light of the reported decisions, this issue has never been raised, in any case, in any other High Court or the Supreme Court”. The High Court felt duty bound to constitutionally adjudicate this issue. It is now for the overburdened Supreme Court to consider and settle this matter of national priority.

Through the doctrine of prospective overruling, available since the Goalk Nath decision in 1969, the Court may render all past actions valid (already conducted investigations and those in the pipeline). Further as, the High Court clearly noted, Entry 8, List I (Union List) “definitely empowers … Parliament to enact a law in the form of ‘Central Bureau of Intelligence and Investigation’ and that such ‘a legislative competence is preserved under Art. 246 (1)’.”

However, the Supreme Court will have to form a final view on the High Court decision that “Parliament cannot, by taking resort to Entry 8 of List I (Union List), make any law empowering a police officer to make ‘investigation’ in the same manner as is done, under the Criminal Procedure Code…into an off­ence for the purpose of bringing to book an offender”. In arriving at its own conclusion, the Supreme Court may well ponder the wisdom of Thomas Jeffer­son, a founder of the American Consti­tution. Justice Ansari prefaces the judgment by the following quote from him: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”

THE ISSUE OF FEDERALISM

Federalism has come to the fore both as a matter of principle and detail. It has been vital to drawing bright lines between “tyranny” and “liberty”. Will it be an error of great magnitude to revive the talk of a hegemonic or strong centre, apt perhaps only for the early decades of Indian federalism? Has this has now become “polycentric”, “multilevel” and “regulatory”? [see, however, Balveer Arora, KK Kailash, Rekha Saxena and H Kham Khan Suan, “Indian Federalism” in KC Suri and Achin Vanaik (eds.), Political Science: Indian Democracy, Vol.2 (New Delhi: Oxford University Press, 2013)].

Despite growing pains, GST has led to the emergence of a new style of “cooperative federalism”. The institutional mechanism of GST Council has led to a new level of basic principles and approaches to resourcing the state and the centre. Some might even say that a new architecture of federal design, now at work in the Council, signifies new levels of institutional engagement. The impact of new technology on Union-States relations has yet to be fully explored, but digitalization especially has led to such contrary tendencies as revivalism, a deepening of pluralism and democracy, fake news that promotes ethnic or political violence and new ways of terror wars.

The 73rd and 74th Amendments have led to different modes of political mobilization and ways of grassroots governance. The ascendency of coalition governance at the center and Opposition parties at the state-level has been a factor of considerable importance not just for the functioning of Parliament but stands possessed of “federal relevance”. In sum, the federal design of the nation has witnessed many basic transformations, progressively reducing, yet paradoxically accelerating, central dominance.

The principle and detail of federalism have been described and declared with, and since, Kesavananda as an essential feature of the basic structure, which even Parliament may not amend unless the Supreme Court concurs. The Court was led to this position by the extreme insistence on Parliament’s absolute power to change each and every provision of the Constitution, including even making it a unitary or monarchical system.

However, the Supreme Court has also recognized Indian “asymmetric federalism” in that it recognises a strong centre, while also underscoring the importance of diverse and plural cultures that states embody and represent. May one still say that federal design is a core value and a collective peoples’ right under the Constitution and closely linked with rights to plurality and culture as integral aspects of Article 21 rights?

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer.