The recent showdown between the Centre and the State of West Bengal on the issue of CBI investigation of a Kolkata top cop in ‘Saradha Chit Scam’, was among many instances which has brought the issue of federalism before the ‘national consciousness’. At the outset one may ask as to why should one care for federalism? The simple reason would be that we live in a country which coheres with ‘State-Nation’ rather than ‘NationState’, since we are much closer and well connected to politics of our states rather than politics in Delhi.
Recently, there has been a rising concern among various States (federal units) that their institutions are slowly invaded by the Centre. This view is shared by many leaders such as Mr. Chandrababu Naidu, Ms. Mamata Banerjee etc. In this context, we need to evaluate the veracity of such claims against a deeper sociolegal scrutiny without being influenced by the political angle behind such assertions.
Before we delve into this issue, we need to understand the meaning of ‘federal state’ which has well defined attributes such as division of power between the Centre and states, dual system of courts, supremacy of the Constitution and provision of residuary powers etc.. However, adding an ‘- ism’ to the term ‘federal’ complicates the matter as it involves various facets such as political federalism, institutional federalism and fiscal federalism etc. We may point out that the word ‘federal’ does not occur anywhere in the Constitution, yet the Supreme Court in multiple cases holds that federalism is a basic structure of the Constitution.
This concept of federalism has equally troubled academicians as well as the Courts in India. Prof K. C. Wheare, termed India as ‘quasi-federal’, CH Alexandrowicz was a sceptic and doubted the assertion of its federal character in toto and Louise Tillin terms India as ‘asymmetrically federal’. Whatever one may term India to be, but the nature of federalism is dynamic and can only be viewed on a snap shot basis.
In any event, the earlier view pointed out by the Supreme Court was to see the Centre and State as two separate competing entities; the court tried to segregate their interactions and confine them within a sphere of operation. This phase of federalism was a duellist approach and cases such as Mar Apparam Kuri and V K Sharma Case expounded this theory. However, recently the Apex Court in Swaraj Abhiyan (V) Case and the Delhi Lieutenant Governor Case has tended towards an inclusive ‘co-operative federalism’ or ‘pragmatic federalism’. Co-operative federalism does not see separate stakeholders during the decision-making process, rather it provides for compromise and deliberation. In a situation where an adversarial attitude creeps in, it would be very difficult to resolve disputes of any kind.
On the other hand, we must be alive to the fact that such co-operation may be difficult in fact and may even be criticised as being one-sided. However, a strict separation of power without regulatory overlaps between Centre and State would lead to bigger problems of distrust and litigation, as happened in Kolkata.
Co-operative federalism on the other hand, would reduce tensions as it involves active involvement of State and Centre to initiate dialogue. Moreover it is not only an exercise limited between political heads of States and Union. It requires an active role on part of the steel frame and its ability to deliver.
Coming back to the recent CBI standoff, it occurred solely due to a lack of effective deliberation between the stakeholders and a rampant disregard to constitutional values. However, nothing much can be read into it, considering the fact that tremendous political mileage was latent. If both sides had concessions to offer, they could have resolved things among themselves without the involvement of the Apex Court, which only does disservice to the notion of federal maturity.
There is no gainsaying that the CBI has been a premier organization combating corruption in India. The fact that it is a central agency makes it susceptible to criticism as to its political independence. More so, when its institutional credibility is challenged.
No doubt CBI is required in multijurisdictional crimes, yet its concurrence with the local police force and pre-emptions cause re-current federal issues. In any case, the Courts usually have alluded to the fact that CBI needs less intervention from the States in matter of investigation and search etc., as the contrary would be counter-intuitive.
In any case, the Delhi Special Police Establishment Act, 1946, which created CBI, is modelled on the antiquated concept of a dualist approach, wherein the State has no active role to play after it has given initial consent for CBI’s investigation into a particular crime. Such a model does not usher in a deliberative process or participation of federal units. Simply put the structure of CBI presently breaches the notion of ‘co-operative federalism’. In line with these observations, this feature of CBI has irked certain States, such as Andhra Pradesh, and accordingly they have revoked the grant of sanction to CBI under the DSPE Act.
Given the nature of policing which is primarily localised, there is bound to be opposition for such Central oversight. Having said that, we cannot lose sight of the fact that issues relating to policing have always been political. It may be necessary to note that presence of Central institutions such as CBI in States may help States to experiment more and come out with new forms of policing.
In the words of former United States Supreme Court Justice Louis Brandeis, the advantage of federalism is creation of laboratories (States) for innovative social experiments. However, in areas such as police reform, where states and local governments may have failed to enact measures that meet minimum standards, the Central Government should work in conjunction with States to develop creative strategies for addressing these issues by crafting carefully constructed new regimes. In this context we are of the opinion that it may well be time for thinking beyond the CBI.
In any case, now that the Supreme Court has taken note of the issue and allowed CBI to interrogate the Kolkata top cop in a neutral location (Shilong), for CBI this case is going down in history as a tryst with federalism.
(The writers are, respectively, a practising advocate and a research assistant at the Supreme Court of India.)