Issues and challenges pertaining to the federal structure

Issues and challenges pertaining to the federal structure
What is Federalism?

* Dynamic theory of nation and state building

* Institutionalised political co-operation and collective co-existence

* Grand design of living together

* Self rule plus shared rule Daniel Elazar

* Unity of polity and plurality of society Rasheeduddin Khan

3 essential components

1. Formation of states and territorialisation of federal local administration to promote closer contact between people and govt.

1. This means creation of institutions of self rule

2. States at macro level and local self governance at micro level

2. Distribution of federal powers on a non centralised basis

3. Division of federal powers and functions on a relatively autonomous basis

4. Each unit has sufficient legislative competence, executive authority and financial resources

5. To perform its function in the allotted domain efficiently and effectively.

3. Creation of institutions of shared rule

6. Collective governance on matters of translocal importance and mutual concern.

7. Shared rule institutions may take variety of institutional shapes like zonal council, ministerial council, inter-state council, and independent constitutional authorities like boards, commissions, planning and other regulatory bodies.

Essence of Indian federalism


* Important roles with centre

* Nation building and nation preserving

* Maintaining and protecting national unity and integrity

* Maintaining constitutional political order throughout union of India

* States assigned only local subjects
Salient features of Indian federalism
Unionisation

* This allows Indian federalism to assume Unitarian features or centre rule over whole country

* Situation During internal or external threat to sovereignty and maintenance of constitutional political order in the states

* Union govt has added responsibility of securing balanced economic growth and social change across the regions and social segments
Regionalisation

* Valid principle of nation building and state formation
Meaning of Union

* Implies indestructibleness of union and unity.

* No unit possesses right to secede

* Only centre can form states by division, merger or altering existing boundaries

* Union also possess right to admit any new territory in union of India

* It is not compacting federalism between 2 pre-existing sovereign entities

* The union has come out in existence only through the unified will of the people of India, nourished during the National movement.

* Thats why (Rajya Sabha), expected to represent the interests of the units of federation, does not have symmetrical representation.

* A large state like UP has 31 seats whereas smaller states like Manipur and goa have only 1 seat
Working of Indian federalism

* During 1st 4 decades federalism in India exhibited a strong centralising tendency

* Union govt. Accumulated powers beyond its constitutional competence

* Constitution permits circumstantial concentration of federal powers in union. But not in normal times

* Centre legislating upon subsidiary subjects

* Encroached upon subjects originally assigned to states

* Acts passed under entries 52 (Industries) and 54 (Regulation of mines and mineral development) under union list

* Under entry 52 parliament passed industries development and regulation act, 1951

* So union now controls large number of industries mentioned in schedule 1 of act

* By way of omission, addition and transfer, the union government through different amendment acts has brought changes in the distribution of competences mentioned under seventh schedule of the constitution, between centre and states.

* State list now has only 61 subjects compared to 66 originally.

* Planning commission centralised planning. This is an e.g. of how union has extended into areas like agriculture, fisheries, soil, water conservation, minor irrigation, area development, rural construction, housing etc.

* Article 356 has been used, abused, misused, and overused to settle political scores.

* Reservation of state bills by governor

* Financial allocation of resources between union and states

* Growing politicisation and subjectivity of institution of governor

* Deployment of Para-military forces

* Very recently - The efforts of the Union government to divide Andhra Pradesh irrespective of the State legislatures views, pose a grave danger to federalism and unity.

* This is the first time in India that a state is sought to be divided without the consent of the State legislature, and without a negotiated settlement among stakeholders and regions, and in the face of public opposition.
Sarkaria Commission recommendations


* Set up in June 1983

* To examine relationship and balance of power between states and union govt.

* Headed by justice rajinder singh sarkaria

* Made 230 recommendations

* 108 implemented, 35 rejected and 87 are still in implementation stage

* Union govt. Constituted interstate council - 1990

Council decisions

* Residuary list subjects to be transferred to concurrent list

* Consultation with states for concurrent list legislations

* Consultation in appointment and selection of governor

* Person should not have any political link

* Person should not return to active politics after tenure

* Time bound clearance of state bills

* Article 356 amendment

Federal democracy has decentralised to village self-governance

* Perceived as instrument of peoples empowerment

* States allowed to negotiate for FDI

Present Issues due to federal structure


* Political issues relating to a state have begun impinging on Indias foreign and security policies.
E.g.

* SL Tamil issue,

* Water sharing with Bangladesh

* Left parties against nuclear deal in UPA I

* NCTC Issue


* With union govt. taking the form of coalitions, they have become vulnerable to pressure.

* This sometime results in pure blackmail

* Sep 2011 Mamta banerjee opposed river water agreement with Bangladesh and forced govt. To call off signing of teesta water sharing formula


* 2013 Gujarat election Modi became a surprise entrant to this club by raising sir creek issue

Implications of these issues


1. SL Tamil issue

* Govt. Had to balance its policies to ensure Colombo doesnt drift towards China or Pakistan

* Resolution on HR issues are double edge swords in our context

* Our record is shoddy in dealing internal insurgency


1. Teesta Issue

* Expectation was that, in return Dhaka will give transit rights to land locked N-E states

* Increased commerce would have resulted


1. Nuclear deal

* India was the only gainer in this

* It was US who had to abandon its sanctions.

* This was a deal which only US could pilot Balance of power in international system

* All china, Russia, France put their stamp through NSG


1. Sir Creek

* In this case, both countries are gross losers

* No one invest in exploiting natural resources

* Losing out on extended exclusive economic zone they get under UN convention


1. NCTC Issue

* Role of NCTC to be carefully examined without any political colour.

* NCTC is for curbing terrorism only.

* It will not be construed as a violation of federalism.

Some other recent cases


* Italian marines case and Kerala govt.

* J&K complains about river water sharing due to Indus water treaty with pak

* Bihar, Assam have issues of water sharing with Nepal, China


* Only US is the country where interest of federal constituents are taken into consideration into account in formulation of policies

* It is difficult to graft US like structure.

* But time has come when Mizoram, Nagaland have a say in Myanmar Policy

References

* The Hindu Articles

* Indian Express Articles

* IGNOU Notes
Pushpender singh

NCTC & CMS

CMS
Govt new initiative CMS @cyber security policy

1. Centre plan to set A new dept. Telecom Security Directorate & C-DoT (Centre for Development of Telematics) in its boarder security strategy to set institutional framework of technical manpower to tackle telecom security related issues with Huawei & ZTE Also a Centralized Monitoring sys (CMS) for lawful interception & monitor telephone & internet services, can use IRI (intercept related info) from all GSM/CDMA mobiles, govt say it have PRISM like lethal

2. The new setup of govt UID & "Central Monitoring Sys" = loss of freedom

3. As CMS = gather diverse range of analog & digital info, telephone record, text message, internet traffic. total surveillance it forced people to behave "differently", as people live in fever, problem is not in that sys is not perfect,

4. Now transferable fingerprint, iris = no foolproof,

5. another thing = when we centralize some thing, we are creating a place for attacker to access control on society

6. Also a work done for general purpose is not confirming security level difficult to protect it may be used by any terror group

7. "Dragnet ( = drag + net =mayajaal = sys to capture criminal) surveillance" = tyranny sorts

8. Example :

* Germany Nazi : know by punching card machine that how much jews lived in particular society total watch

* You can easily extrapolate situation of India in above context in context of caste sys

9. In theory : internet =freedom, but by this way it fucks our freedom,

* People will fearing when they call anyone to say something,

10. It even go beyond "meta data"


1. Currently 2 major spying agency : IB&RAW, + 7 other: CBI, Narcotic control bureau, CBDT, DRI( directorate of revenue intelligence ), National drug controller, NIA, military of intelligence in Assam & JK & home ministry are eligible to intercept calls under, SC guideline @The Indian Telegraph Act, '85 Rule419(A),



Tussle start b/w

Govt agencyActivists

For better faster real-time interception, surveillance & monitor mechanism improve security, & anti-terrorDemand for privacy, civil right, free speech to ensure higher privacy


1. India = 900m mobile, 160m internet, 85m on social network, all expected 2x@'15

2. PRISM revelation fill new color to debate,

3. Some facts, very little info available about CMS & its work procedure, privacy safeguard @ public domain,

4. Its a fashion of govts worldwide to keep surveillance info secret India continues trend

5. Key unanswered issue : the depth of surveillance " instant, real time, deep searching" no debate in parli, or outside that whether a red line which govt not cross

6. Further no info on safeguard whether info used for political authority esp "judge, opposition leader, editor, regulator, advocates, vigilance official Corporate CEO etc.

7. No info on how agency use that lethal technological info for security of citizens,

8. Can any prowess (Art) used against any citizen / no rule of law / clearance needed, who decide authorization & correctness of info access, esp when they access by bureaucrats when they report to politicians

Legal infirmity()

1. Existing law=@interception, but CMS expand to "meta data" incl. CDR(call detail record), but there use is not defined in existing laws

2. Provision of authorization of intercept

* @sec5(2) @ the Indian Telegraph Act 1885,

* @sec 419(A)The Indian Telegraph Rules '51

* @sec 69 if IT Act 2000

* IT (direction for interception / monitoring / decryption of information Rules ) 2009

3. "the Right to privacy" on other hand protected under

* CoI Art 21 - Right to life

* CoI Art 19(1)(a) -- Right to freedom to speech & expression

* But consi validity of interception is upheld by SC@sec5(2) @ the Indian Telegraph & SC laid down five guideline to narrowing interception

* National sovereignty & integrity

* State security

* Friendly relation with foreign state

* Public order,

* preventing incitement () of commission of offence,

4. @above "public order" & "Prevention." are sufficiently vague / broad enough (although weak) for security agency to put any authorization request for interception, raise question "can prevention of crime leave open doors to any agency to get permission to intercept any citizen" even without proof, as authorization not given by judge, can who make decision have judicial expertise to make legally valid decision, so what if surveillance is extra-judicial how it will be uncovered

5. Now question about mismatch b/w : privacy legislation & lethal forensic surveillance capability arise,

6. Further @ CMS interception done instantly, where @ current law it take home ministry permission to intercept anyone, if necessary it = max 7days, if got permission = valid for 60days , renewed upto only 180 days, can a lower level officer permission sufficient to begin surveillance,

7. UN recommends that : surveillance must be under independent judicial authority & legislative control,


1. @CMS govt official authorize interception, although some official review but it remain upto govt only, what a guarantee that such permission is rigorously follow there deserve-ness , Or may not misused by govt official as they always under-cover with govt, that it even not reveal by RTI, ( grant exemption under section 8 of RTI Act ) how mistake corrected & misuse prevented


1. A big question=

* Who under govt access all IRI (intercept related info), Call Content (CC), & CRDs, how long info kept with govt, procedure of safe keeping, with a track record of tape leaking, now till date even a single official found guilty,

* Can any mechanism that tell "innocent targets" that they are under surveillance,

* Privacy issue = serious, within/outside India, can govt give bill to early for debate or choose track two of ordinance,

* Also think that SC had to review its guideline which came when <1m mobile & no internet user





1. National Nodal agency also built to control all over India charge:@strategic, military, govt, business, all assets


India buying much new m/c to do surveillance, a war b/w counter-terror & civil-liberty

1. This list have cell phone snooping, which extract all iphone info incl. encrypted backups, they can easily bypass passwords,



1. Many people say govt already do surveillance via CMS's LIM(lawful interception & monitoring) By C-DoT(center of devp of telematics)
NCTC

* Debate @3500cr NCTC, got extreme view @both sided, while chindu@2009 go to US to study there NCTC he say it was under dept of Homeland Security but really it was under director of Nat intelligence till date dispute is there, although they have CTC@CIA.
What US NCTC says

* There is Gilmore commission start work@1999, until 9/11 they say to provide for three tier inter-Agency Group then 9/11 commission suggest create director of Nat. intelligence-a 16 member committee to solve dispute b/w agencies

* no resulting cases are given+ not directed by directly white house like NSC, they are totally do independent investigation on local info bases
But our sys is likely to be based on UK JTAC(joint Terrorism Analysis Cen ) under MI-5 (IB's counterpart)based on Chindu visit to UK @2010
by Indrajeet Singh