Legal experts counter Shivraj’s stand on rejecting GUJCOCA

For the UPA Cabinet to give its approval for GUJCOCA, Patil said, would mean that it would be going against its express decision with regard to POTA. If Shivraj Patil’s objection to GUJCOCA was based on principle, why then did the UPA permit MCOCA to be used by the Congress-led Maharashtra Government? Was this not double standards? Shivraj Patil denied any hypocrisy, relying instead on Article 254(2) of the Indian Constitution.

Under Article 254(2), state laws falling under areas on which the Centre and state can jointly legislate (concurrent powers) require presidential assent. Since “criminal laws” and “criminal procedures” fall under the “concurrent list”, state anti-terror laws require presidential assent. Presidential assent, in practice, means the approval of

the Union Cabinet. Shivraj Patil pointed out that this assent, once given, cannot be withdrawn.

“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. Constitutional law scholar Sudhir Krishnaswamy points out that “the whole point of Article 254(2) is to enable the state to pass laws that Parliament may disagree with. It is therefore perfectly compatible with the principles of federalism for POTA to be repealed at the central level, but GUJCOCA to be permitted at the state level”.

Article 254 thus allows for unique situations in certain states to necessitate special laws for that state. This is exactly what Maharashtra cited, when the NDA Cabinet gave its assent for MCOCA. There is no reason why GUJCOCA should be treated differently. Assent under Article 254 need not be taken as a validation of GUJCOCA by the UPA. Krishnaswamy also points out that the President is not always a “titular” head who must follow the advice of the central Cabinet. The President, under Article 254, should perhaps factor in the requirements of states, to whom she is also responsible. In other words, President Patil should also consider the views of the Gujarat Government, instead of solely listening to the UPA Cabinet.

Constitutional lawyer Vivek Reddy also dismisses Patil’s legal argument as political posturing. “If Patil has a problem with the POTA-like provisions of GUJCOCA, the UPA Cabinet can always give conditional acceptance to GUJCOCA, withholding consent for the provisions that they don’t like. But it makes no sense for them to withhold consent for the whole of GUJCOCA.”

Gujarat Chief Minister Narendra Modi told The Indian Express that he is yet to receive a response from the UPA Cabinet listing out exactly what provisions of GUJCOCA they have a problem with. Reddy also points out that the “flexible federalism” in India’s constitution means that Patil could well decide against POTA at the central level, while acknowledging the unique terrorist threat that some states face, and assent to special anti-terror laws for that state. The UPA Government had previously found fault with GUJCOCA because it encroached upon areas that were solely within the domain of Parliament. But in a recent decision, the Supreme Court held MCOCA (identical to GUJCOCA) to be within the ambit of state legislative power.

In another recent judgment, the Bombay High Court also upheld the validity of MCOCA after striking down a few provisions. Narendra Modi told The Indian Express that GUJCOCA was in conformity with the observations of the Bombay High Court. UPA Cabinet permission for GUJCOCA is being withheld for several reasons, but “constitutional compulsions” is not one of them. It seems more an act of political choice, rather than legal propriety.