@newspaperarticle {67376,
	title = {State of the Union},
	year = {2009},
	note = {Ashutosh Varshney is a professor of political
science at Brown University. His books include, Ethnic Conflict and Civic
Life: Hindus and Muslims in India.},
	month = {Dec 5, 2009},
	publisher = {Indian Express},
	abstract = {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{\textquoteright}s
counter-terrorism effort? Without considering the relationship between
federalism and national security, we will not understand the underlying
factors driving India{\textquoteright}s counter-terrorism effort. The nation{\textquoteright}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{\textquoteright}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{\textquoteright}s federalism now faces a new and
extremely serious challenge.
Central to India{\textquoteright}s internal security are three laws and practices. 
First, according to
India{\textquoteright}s Constitution, internal law and order are entirely on the
so-called {\textquotedblleft}state list{\textquotedblright}, not on the {\textquotedblleft}Central list{\textquotedblright} or {\textquotedblleft}concurrent list{\textquotedblright}.
Only under President{\textquoteright}s rule can Delhi take over the internal security
of a state. {\textquotedblleft}Federal crime{\textquotedblright} 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{\textquoteright}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. {\textquotedblleft}Hamaara hawaai jahaaz nahin aayaa{\textquotedblright}. It was registered as a
Delhi-based crime. Second, Central
agencies{\textemdash}including the national security guards (or commandos), who
are especially trained for urban terrorism{\textemdash}simply cannot function
without the cooperation of state police. Requisition from state
governments is legally required before the commandos can be used.
India{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textquoteright}s Intelligence
Bureau (IB), but the IB reports to India{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textemdash}for example, a national counter-terrorism centre{\textemdash}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{\textquoteright}s federal polity will not
easily allow it to come about. },
	url = {http://www.indianexpress.com/news/state-of-the-union/550191/0},
	author = {Varshney, Ashutosh}
}
