Recent terrorist attacks throughout India have seen the BJP severely criticize the Congress approach to tackling terrorism. One issue that has been highlighted, especially by Narendra Modi, has been the central government’s refusal to assent to a MCOCA equivalent law for Gujarat, GUJCOCA.
In an article in the Indian Express, Vinay Sitapati discusses the legal issues relating to this controversy, and Shivraj Patil’s defence of his government’s position. Patil relies on Article 254(2) of the Indian Constitution and defends the existence of MCOCA by arguing: “Permission for MCOCA was given by the NDA Government; the UPA Government cannot withdraw that permission”. Mr. Sitapati’s article, however, cites constitutional experts Sudhir Krishnaswamy (teaching at the National Law School, Bangalore) and Vivek Reddy (on this blog) to show how Patil’s interpretation of Article 254(2) and the principles of federalism may be misplaced. Considering this controversy has received little legal attention, I thought it may be interesting to see what other thoughts people may have on the issue.
Just thinking aloud on the nature of our federal system – essential to it is the idea of a concurrent list with overriding power to the federal govt. in the case of a conflict. So, if the state passes a law in conflict with central law, it needs central approval. there is residuary legislative function performed by the president on matters in the concurrent list. can assent, once given, ever be withdrawn? or, if the parliament today wants to repeal the maharashtra act, does it have any way of doing so? one can assume that if the consent for a similar act was sought today, it wouldn’t be forthcoming. is this a lacuna in the federal scheme, which generally establishes the superiority of the centre? or will it make the centre too powerful to allow it to withdraw assent once given?
but this (constitutional) helplessness of the centre in the case of maharashtra actually supports rather than detracts from the legitimacy of its withholding of support to the gujarat bill.
of course, given that the ruling party in maharashtra and centre are the same only points to political hypocrisy, since the congress govt. in Maharashtra could repeal its act. however, as a constitutional argument, Patil may be right. the centre is entitled to use policy reasons to withhold assent, and arguably if the maharashtra bill came before it today, it would face the same fate as the gujarat bill.
allowing gujcoca in gujarat while repealing pota in centre is certainly not unconstitutional. but neither is repealing pota in the centre, withholding gujcoca in gujarat, while suffering mcoca as fait accompli (at least in the constitutional sense).
Article 254 may be understood like this:
First, there is a Central law, that is, UAPA (Unlawful Activities Prevention Act, 1967).
MCOCA is enacted in 1999. President gives assent, thus indicating that Centre has consciously permitted the State Act, so there is no repugnancy.
Then, POTA is enacted by Parliament, touching the same subject matter as that of MCOCA. There ought to have been implied repeal of MCOCA, because Parliament evinced interest in occupying the whole field of terrorism, referred to as organised crime by MCOCA. But the Centre/Parliament ignore it.
UPA comes to power in 2004. POTA is repealed, and an amended UAPA comes into force.
Whether a State law is repugnant to Central law depends on the prevailing policy of the Centre. It is this policy which consciously permitted repugnancy in 1999. This policy changed in 2004. When Parliament makes a law in the same field earlier occupied by a State, (and may be even permitted by the Centre), the Central law prevails over that of the State, notwithstanding the President’s earlier assent to the State law. It means that MCOCA stood repealed impiedly because the amended UAPA in 2004 prevailed over it.
The Bharat Shah judgment of Bombay High Court which stood reversed by the Supreme Court recently did not touch this issue of repugnancy. It only dealt with the constitutionality of interception of communication provisions in MCOCA. The Bombay High Court said these provisions were not valid,(again on repugnancy issue as they conflicted with the Indian Telegraph Act) and the Supreme Court rejected the High Court’s reasoning.
The SC is yet to pronounce on the implied repeal of MCOCA after the UAPA amendment in 2004. The case is being heard and the arguments have been summed up in my Oct.24 post. As Harish Salve’s arguments reveal, he admits that MCOCA overlaps with the Central Act, but argues that this overlapping is justified. But is such overlapping permissible under Article 254? We have to wait and see how the Court resolves this issue.
Let me add what Shivraj Patil appears to have deliberately missed: After UAPA’s amendment in 2004, MCOCA would require a fresh Presidential assent to show that the Centre has consciously permitted the State Act to continue despite the recent amendment of the Central Act in the same field. The non-obtaining of the Centre’s assent, would therefore, mean that the State Act stood impliedly repealed, that is, the Central Act prevailed over the State Act.
Possibly MCOCA issue which mr. venkatesan highlights might be glossed over by the SC by relying on pith and substance. as a matter of fact, a.s. krishna (which in my opinion was wrongly decided) was cited before the bombay hc and in oral arguments seemed to have influenced the bench. as krishna and a string of cases following probably miss the fact that pith and substance is used to justify inciental encroachments in terms of lack of competence; and cannot be used to justify a factual repugnance. SC has taken, in plenty of cases, an interpretation which might lead to absurdity. hoechst pharma comes close – if one twists the facts of hoechst a bit and applies the SC test, the absurdities are evident.
hopefully the sc will clarify that Pith and substance mus be used to resolve questions of competence; and not of repugnance.
I wholly agree with both Tarunabh and Venkatesan’s comments. Neither Sudhir nor Vivek show how Patil’s stance is ‘unconstitutional’. It may not be the right position to take in the present climate, but, as Tarunabh says, due to the loophole in 254, it is permissible for the Centre not to give its assent. Also, Venkatesan’s point on implied repeal is not one taken by either of the experts or the author in this piece.
I think you’re quite right Tarunabh, neither situation is unconstitutional. Importantly, however, Patil seems to suggest that he has no constitutional option but to withhold GUJCOCA, which is plainly untrue. He may constitutionally withhold it – as you correctly point – but no constitutional provision prevents him from assenting to it. And choosing between both options, Patil may ideally, as Sudhir suggests, want to reflect on the purpose of Article 254.
Also, Venkatesan’s reminder is very interesting – as regards MCOCA requiring fresh assent, and possibly being impliedly repealed. It should be fascinating to see what the SC will say on this issue.
Finally, I would not scrutinize the quotes in the piece too much, as it was a newspaper article attempting to discuss the issue, not provide a rigorous legal analysis.
i completely agree madhav – i am sure sudhir and vivek would have said more if they had more space than that one line comment, so my criticism is not directed at them, but against a general point made very often in this debate.
on the point that patil is defending the refusal to give assent on constitutional principle, i agree with you that the constitutional does not bar him from recommending the giving of assent. but in citing parliamentary repeal of pota, he may be citing a simple democratic principle of bowing to parliamentary decisions on ‘policy’ and acting consistently with it in all its executive dimensions. of course, taking such consistency to its logical end would require the congress party to direct its maharashtra unit to repeal mcoca. if patil is to be criticised, it should not be because of withholding assent to gujarat law but to not do enough to see the back of maharashtra law.
Yes Tarunabh, you’re quite right. It’s interesting how Patil, and others in the Congress, can speak passionately of the many ills in POTA and GUJCOCA, but not comment on MCOCA. As you mentioned in your earlier post, this is nothing but political hypocrisy.
Madhav & Tarunabh – some comments on your remarks.
Madhav, you say you would not "scrutinize the quotes in the piece too much". Maybe you might consider the very title of Vinay's piece – "Legal experts counter Shivraj's stand". In fact, THE MOST IMPORTANT PART of that Article are the quotes, because that is where one finds the views of the legal experts.
Consider the following:
“Permission for MCOCA was given by the NDA Government; the UPA Government cannot withdraw that permission,” Patil said. The only option for him was to tell the Maharashtra Government to repeal MCOCA, and that would be an improper interference into the functionings of the state Government. Several constitutional experts find this argument unconvincing."
Considering that Sudhir and Vivek are the experts in question, (both of whom I respect) I however do not think that there is anything in the piece to suggest why Patil's arguments are unconvincing in the least. Patil is right on both withdrawal and interference, and considering that the view of the experts was sought in response to these, whether or not there is a Constitutional bar to assent being given by the Centre is absolutely irrelevant.
Thanks for your comments. When I meant that one should not scrutinize the quotes too much, I tried to suggest that newspaper articles are written in particular styles with certain aims and audiences in mind, and so I believe (I may well be wrong), they ought not to be subject to rigorous legal analysis, but should rather serve to ignite discussion and create awareness about a pressing legal issue or development.
I certainly think that you make a valuable point. Personally, the conclusion I formulate after this entire discussion, is as Tarunabh has rightly noted, Patil’s real failing does not lie with respect to GUJCOCA not existing, but with respect to MCOCA still existing.