Wednesday, February 22, 2012

Jaitley gives constitutional spin to NCTC furore

New Delhi: BJP's Arun Jaitley has given a constitutional turn to the political standoff between chief ministers Naveen Patnaik, Nitish Kumar, Mamata Banerjee, J.Jayalaltihaa over centre's notification on National Counter-Terrorism Centre (NCTC).

He said that the “BJP believes that terrorism has to be fought wth determination, and both Centre and states have a central role.” He said that cross-border terrorism and inter-state terrorism are the responsibility of central government, but acts of terrorism which take place within the state fall squarely within the ambit of police powers of the state government.

He has also dismissed the idea that the government can bring in legislation which could empower the centre to fight terrorism saying that police powers was the exclusive domain of the states. He said that federalism was part of the basic structure of the Consitution and even parliament cannot bring in an amendment which would tamper with the federal structure.

He said that the centre has empowered NCTC under Section 143 of the Unlawful Acitivities Act with to carry out search and arrest in the states does not hold under law. “The centre cannot substitute the police powers of the state,” he said.

Jaitley conceded that home minister P.Chidambaram was right when he said that fighting terorism was the shared responsibility of centre and the states, but he felt that “statecraft has become alien” to the Congress-led UPA government have deliberately ignored the states.

The leader of opposition in Rajya Sabha pointed out that initially Chidambaram had argued for the centre fighting the Maoists, but when Congress president Sonia Gandhi and party general secretary and UP in-charge Digvijay Singh pressured him he recanted and said that curbing the Maoists was the job of the state governments. He said the minister is contradicting himself when he turns round to argue that centre should be the sole authority to fight terrorism.

Jaitley emphasised that the “fight against terrorism can co-exist with federalism. There is no contradiciton between the two. To maintain both, you need statecraft and statesmanship.”

He also refuted the claim made in the note of a Group of Ministers (GoM) that the code of conduct of the Election Commission was voluntary and it did not have a stuatutory standing. He said that a Superme Court judgement has said that the commissions rights to create rules – and the code of conduct is one of them – emanates from Article of the Constitution. He said that the court had said that Article 324 is a “resevoir of residuary powers” and it is not necessary that everything needs to be explicitly stated. It is a known principle that where the law is silent, there is room for a new legal construction and interpretation.

He said that the power to impose penalties for violation of the code cannot be taken away from the commission and given to an ordinary court because courts are not involved in conducting elections. The argument appears a little weak because election petitions are handled by the high courts.

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