Federalism is part of the basic structure of India’s constitution. Federal principles are unamendable. The jurisdiction of the Centre and the State is clearly demarcated. There is no scope for any grey area.
Ordinarily, when we perceive threats to federalism, it is suspected that encroachment of federal principles is by the Centre. The Centre, through its agencies, cannot usually investigate what happens in the States. It is only in extreme cases that it issues an advisory or where there is breakdown of constitutional machinery, it can invoke powers under Articles 356. The CBI’s powers to investigate public servants of the State is restricted to cases where the States specifically consent to the investigating agency or where the High Courts or the Supreme Court issues a direction to the CBI to so investigate.
What happened in Delhi yesterday, therefore, merits a comment. My comment is not concerned with the fairness or otherwise of the fixation of prices of natural gas. Aggrieved persons are entitled to raise the issue in Parliament and even seek an investigation directly from the Centre or through a court process. The issue is can the State government, through its Anti-Corruption Branch, investigate a decision taken by the Central Government?
Delhi is a Union Territory with a State assembly. Legislative and Executive jurisdiction of Delhi is circumscribed by Article 239AA. Entries 1, 2 and 18 of the State List under the Seventh Schedule are not applicable to Delhi. Entry 1 deals with public order, Entry 2 with police and Entry 18 with land. Thus powers to regulate public order and police are currently not with the Legislative Assembly of Delhi. Executive powers are co-extensive with legislative powers. The Delhi government has, therefore, no police powers. What thus is the function of the Anti-Corruption Branch of the Delhi Government? The Anti-Corruption Branch is part of the Vigilance Directorate of the Delhi Government. In pith and substance, it is the function related to vigilance and not to the police powers. In relation to the vigilance it has all the powers to deal with erring public servants and departments of the Delhi government. Thus for the Vigilance Directorate of Delhi government or the Anti-Corruption Branch under it, to possess unlimited powers of the police within the geographical territory of Delhi would imply that Entry 2 of the State list is made applicable to Delhi. This has been specifically prohibited by Article 239AA of the Constitution. This would further imply a parallel jurisdiction in relation to the functioning of the Central government located in the National Capital. The Central government, would parallelly be both under its own Vigilance jurisdiction and that of the Delhi government’s Vigilance jurisdiction. This would imply, that from the Prime Minister to the Cabinet Secretary to all public servants would be susceptible to the jurisdiction of the State government. The existence of these police powers itself is doubtful. To put the Central Government under the police jurisdiction of the State government would be a constitutional monstrosity. It would be violation of federal principles in reverse. Compliance with the letter and spirit of the Constitution requires restraint and statesmanship. Constitutional institutions cannot be preserved by acts of adventurism. I seriously doubt the correctness of the judicial opinion which holds otherwise.
The ‘single-point directive’ applicable to the Public Servants of the rank of Joint Secretary and above states that before investigating officers falling under it, consent of the Central government is required. The Supreme Court had struck down this directive on the ground that it had no statutory backing. The statutory backing was enacted, which has since then been challenged before the Supreme Court. One of the rationales behind the controversial ‘single-point directive’ was that law and order and policing are State subjects. What if a Sub-Inspector of Police in a State were to summon the Prime Minister or the Cabinet Secretary for investigation? This power could also be misused for political reasons. The opinion expressed was that before such an investigation is undertaken, prior permission of Central government is required. The ‘single- point directive’ has been criticized. The action of the Delhi government in wanting to investigate the decision of the Central government has underscored the rationale behind the ‘single-point directive’. The AAP government must realize that enthusiasm and adventurism may not set the best of constitutional precedents.