If all States follow the Constitution in letter and spirit pertaining to the division of power, there is no reason why China or Pakistan or someone else, as ‘third person singular number', would dare fish in
When two Chief Ministers of two borders of north and east, Jammu & Kashmir and West Bengal, of the state of India — which constitutes “India, that is bharat”, which is “a Union of States” vide Article 1 of the Constitution — almost simultaneously raise China as debilitating actor and destabilising factor, pertaining to internal turbulence thereof, understandably it requires a close look. Rather a closer look with special reference to the Constitution of India, arguably and indisputably, the supreme law of the land and the implementation thereof vis-à-vis centre-State scenario.
To do so, one has to start with Article 246 of the Constitution, which deals with “subject-matter of laws made by Parliament and by the legislatures of States”. Thus reads Article 246 (1): “Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in list I in the Seventh Schedule (in this Constitution referred to as the ‘Union list’). Further, vide Seventh Schedule, Union list consists of 97 subjects; and Parliament has exclusive power to make laws pertaining to all 97 subjects enumerated therein”.
In other words, once Parliament makes law on these 97 subjects, it is the exclusive duty and responsibility of the federal Government to follow and implement things in letter and spirit. There is no scope for any State to get into it or to usurp the federal Government’s job which has been entrusted by the Constitution; a Constitution which has been “given to ourselves” by “we, the people of India”.
Vide Seventh Schedule, there are also two more categories; ‘State list’ (consisting of 66 subjects) and ‘concurrent list’ (47 subjects) the functioning of which has been clearly defined, prescribed and clarified by Article 246 (2), (3) and (4) respectively. For our purpose, however, we see only the ‘Union list’ of 97 subjects — read with Article 246 (1). Thus, in light of the complaint of the two Chief Ministers, it would be in order to re-visit a few relevant subjects/items of the Seventh Schedule’s ‘Union list’.
Item 10 “Foreign affairs; all matters which bring the Union into relation with any foreign country”; 11 “diplomatic, consular and trade representation”; 12 “United Nations”; 13 “participation in international conferences, associations and other bodies and implementing of decisions made thereat”; 14 “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”; 15 “war and peace”; “foreign jurisdiction”; 18 “extradition”; 19 “admissions into, and emigration and expulsion from India; passports and visas”; 20 “pilgrimages to places outside India”.
These above-mentioned subjects falling under Union list of the Seventh Schedule clearly reveal the spectrum of the federal Government power and jurisdiction vis-à-vis matters pertaining to foreign countries. This makes it mandatory for all State Governments (irrespective of party or political colour) to follow the policy and procedure laid down by the federal Government with reference to all foreign nations, Government and diplomats thereof.
Here emerges the recent trend set by a few State Governments which, more often than not, tend to assume the power, role assigned by the Constitution to the federal Government, thereby giving impression of bypassing the latter to establish direct contact with ambassadors/high commissioners of Delhi-based foreign missions.
This tendency, therefore, does appear to deviate from the constitutional provisions thereby creating potential ‘situations’. In fact owing to an appetite for ‘foreign direct investment’, ‘joint venture’ and other related economic activities “for the development of the state”, a few regional satraps, of late, have been calling direct shots with foreign missions which regrettably is not in tune with the letter and spirit of the clearly laid down provisions of the Constitution.
And as luck would have it, owing to the nature of successive coalition Government in Delhi, for more than two decades, the federal Government too, unwittingly or unwillingly, appears to have abdicated its power and responsibility, thereby being a part of, and party to, non-following of the Constitution, the supreme law of land.
A point to ponder here. Which foreign country, or the mission thereof, will go all out to help ‘develop’ the Indian state which often declares of its demographic strength and varietyIJ Thus, if a Province of the Indian state tries to become ‘too friendly’ with foreign mission officials, one can be rest assured of the potential future negative fallout.
All the more because foreign diplomats too, being fully aware of the ‘reality’, are likely to take ‘advantage’ of India’s polity of diversity, thereby spreading its tentacles clandestinely. This is understandable. Given an opportunity, any, or every, foreign mission would do the same, trying to create ‘opportunities’ for its own Government. Scruples, morals, morality matter little in such situations. It is ‘real politics’ all the way, where state rulers play hard ball. Reality of ‘self-interest’, based on finance and economics, overshadows theory of morality or ‘individual friendship’ as utopian.
As morality in diplomacy understandably do not find place in front of the ‘reality’ of nation state’s ‘self-interest’, the internal dimension assumes greater importance if only it follows the set procedure of the constitutional law. Here, the concerned Ministry of External Affairs of India too has a role and responsibility to implement the constitutional provisions. Being the fulcrum, as well as the torch bearer of the nation’s relations with the outside world, officials of the Ministry of External Affairs need to be pro-active to be on real-time tuning with senior hierarchy of all the 29 States to understand their plan of action and scheduling of various meetings and programmes of/between Chief Ministers and foreign diplomats.
The Ministry of External Affairs has to be an integral part thereof thereby making it a tri-lateral (Ministry of External Affairs, State and foreign diplomat) show. There is no way that India can afford to leave foreign diplomats loitering all around the country side; far away from the domain of the Ministry of External Affairs. Diplomacy is bilateral. Will Indian diplomats be allowed to loiter all around Chinese country side like that of Uighur, Xinjiang and Tibet for economics or joint venture etcIJ Is it possibleIJ
Seen in this background, all that can be suggested today is that the provisions of the Constitution will have to be followed and respected and the supremacy thereof acknowledged. Indeed, being a magnum opus legal document of India, the Constitution of New Delhi has been beautifully crafted as virtually every possible aspect of the State organ has been covered therein. Hence, if all follow the Constitution in letter and spirit pertaining to the division of power and make it visibly effective and operational, in line with an economics terminology, ‘division of labour’, there is no reason why a China or Pakistan or someone else, as ‘third person singular number’ would dare fish in, and loiter around, Kashmir or Kolkata.
(The writer is an advocate in the Supreme Court of India)
