Opposing the formation of NCTC, Chhattisgarh chief minister Raman Singh today said it was against the federal structure of the Constitution.
"Our Constitution has cooperation and coordination-based federalism, but with the NCTC notification, I feel that it is being changed into a sub-ordination-based federalism," the chief minister of the BJP-ruled state said.
He also cited lack of clarity on some of the provisions on the NCTC circulated through an office memorandum by the Home Ministry recently to States and suggested changes in them.
"As per the NCTC notification, the provision of 'Designated Authority' has been included on the basis of the Unlawful Activities (Prevention) Act-1967. But it is not clear as to the law under which the word, 'mandate', has been used in paragraph 2.5-II and the word, 'prescribed', has been used in paragraph 2.5-IV, of the notification.
"Under Article 144 of the Constitution, there is a provision that all civil and judicial authorities shall assist the Supreme Court. I find that a similar provision has been put, with some changes, in paragraph 5.1 of the notification.
This is surprising, because a provision similar to the one in the Constitution for the Supreme Court has been included as an executive order for an executive body like the NCTC," Singh said.
Noting that terrorism directly affects national security, unity and integrity, he said both Parliament and States can make laws to act against terrorism.
"It is, therefore, necessary to see whether any existing law allows inclusion of subjects, which have been proposed in the notification of NCTC, under the purview of the Union executive," the CM said and asked the Centre to suitably amend them to avoid any legal problems.
On the contentious issue of granting powers of arrest, search and seizure to the officers of NCTC, Singh said under Section 25 of the Unlawful Activities (Prevention) Act-1967, there is a provision for the approval of Director General of Police and of giving information to the Designated Authority within 48 hours.
"However, by giving powers of arrest, search and seizure, the new arrangement for NCTC seems to have overlooked the provision of section 25," he said in the meeting of Chief Ministers on the constitution of NCTC here.
Citing the para 5/C of the draft Standard Operating procedures, which says the DGP will be informed before any operation if it is so possible, Singh said the draft SOP "should not violate any statutory provisions of law".
He also said that an investigator of a criminal case has been given the power to gather information from the concerned individual or office under the Code of Criminal Procedure (CrPC).
"Therefore, giving such powers to an intelligence agency like NCTC which would be constituted without statutory basis, will be against the spirit of the Constitution and rule of law," the CM said.
Forcing all the officers of State Governments to comply with NCTC by an executive notification will be against the federal structure of the Constitution. "Therefore, this provision should be removed from the scope of NCTC," he said.
Singh said Chhattisgarh feel that while there is a need for a separate agency at the national level for gathering information, maintaining and analysing data and exchanging and reviewing these data with various states; its work should be limited to ensure coordination, cooperation and synergy, instead of diluting powers of State government's agencies.
"The formation of such an important body will be effective and sustainable, if it is formed through an Act of Parliament, instead of a notification," he said, adding had today's meeting been called before issuing the notification for the formation of NCTC, a national consensus could have been built by now.