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Resource centre on India's rural distress
 
 

A solid sense of security by Manish Tewari

It’s not just the NCTC — we need to provide a statutory basis and oversight mechanisms for all our intelligence agencies
 
The protest by eight chief ministers, characterising the Union government’s decision to give powers of search and arrest to the National Counter Terrorism Centre (NCTC ) under Section 43 (a) of the Unlawful Activities Prevention Act 1967 as an assault on federalism, comes in the wake of a “sticky bomb” attack that injured an Israeli diplomat in the high-security Lutyens Delhi. The attack, perhaps, is a precursor to the export of a new wave of terror to India. In any other democracy, both the decision and the attack would have triggered a larger debate about the nature and functioning of our law enforcement and intelligence structures.

India’s counter-terrorism structures and operational capacities to pre-empt and prevent terror attacks suffer from both design flaws and capacity constraints. The complete absence of a consensus on national security issues turns debates into slanging matches, replete with political and communal overtones. It is not surprising, then, that the rhetoric of zero tolerance against terror has never turned into an operational reality.

In sharp contrast, a survey of global counter-terrorism efforts reveals that nothing has been allowed to stand in the way of crafting an effective pre-emptive response to terror. After the Munich Olympics outrage, counter-terrorism through the use of military, law enforcement, intelligence and other resources to identify, circumvent and neutralise terrorist groups has been among the principal security concerns of Germany. The counter-terrorism effort in Germany is directed by the federal coordinator for intelligence, who reports directly to the German chancellor.

In the wake of the 9/11 attacks, a national counter-terrorism centre was created at the federal level by the US government, with the 2004 intelligence reform legislation, to serve as the primary organisation responsible for the war on terror. Its objective was straightforward — ensure that terrorists do not strike again. The rationale — focus all elements of national power in the fight against terror by clearly delineating national priorities, breaking down inter-agency barriers and overriding federal qua state jurisdictional issues.

Similarly, Spain in the wake of the Madrid train bombings in 2004, and Britain after the London bus bombings in 2005, have substantially beefed up their counter-terrorism structures. Britain has an organisation called National Counter Terrorism Security office, exclusively dedicated to this purpose. In Russia the National Counterterrorism Committee (NAK) is tasked with coordinating all federal-level anti-terrorism policies and operations with the powers to intervene at the federal, regional or even municipal level. Even Sweden has designated its security police as the lead agency in the fight against terrorism. Most of these countries, in addition to being democratic, have strong federalist impulses.

What was required was a national organisation exclusively tasked with confronting every part of the terrorists’ life cycle, from radicalisation to recruitment, financing to training for an attack. The decision, therefore, to establish the NCTC by drawing executive power from Article 72 of the Constitution and empowering it under the UAPA, needs to be understood and located in this security environment.

However, the decision to create such an institution through an executive order and locate it within the Intelligence Bureau (IB) does raise certain valid concerns, given the tenuous legal basis of our intelligence structures, the lack of an independent oversight mechanism and the atmosphere of permanent political distrust in a polarised polity.

In response to a Parliament question in July 2009 pertaining to the legislative act from which the Intelligence Bureau draws its right to function, the government came up with this: “The Intelligence Bureau figures in Schedule 7 of the Constitution under the Union list”. When pressed that this may not be an appropriate answer, the government emphatically reiterated: “The Intelligence Bureau finds mention at S.No.8 in the Union list under the 7th Schedule of the Constitution of India”.

Entry 8 in the Union list enunciated in the government’s response merely gives it the legislative power to enact a statute to bring a Central Bureau of Intelligence to be called by whatever name (IB or BI) into existence. A mere mention of a subject in the laundry list of legislative powers neither gives an organisation life nor legitimacy. Unfortunately, no such law has ever been enacted by successive governments since the commencement of the Constitution.

Similar is the case of India’s external intelligence service, the Research and Analysis Wing (R&AW). Responding to a Parliament question about the law/statute which enables the R&AW, the government admitted that there is no specific statute governing its functions or mandate. However, a formal charter listing the scope and mandate of the R&AW governs its functioning

Contrast this with the position in other countries. The Central Intelligence Agency (CIA) was created by the National Security Act of 1947 and is empowered by the Central Intelligence Agency Act of 1949. MI5, the domestic intelligence service of the United Kingdom, draws its legal authority from the Security Services Act 1989, and its sister organisation MI6, or the SIS, from the 1994 Intelligence Services Act, thereby subjecting its activities to the scrutiny of the British Parliament’s Intelligence and Security Committee. The Foreign Intelligence Service of Russia draws its legal basis from the Law on Foreign Intelligence Organs 1996. The German Federal Intelligence Service Bundesnachrichtendienst (BND) draws its legal sustenance from the Federal Intelligence Service Law 1990. Its activities are supervised by the Parliamentary Control Commission (PKK) for intelligence services, which in turn is empowered by the law over the Parliamentary Control of Intelligence Activities 1978.

The current challenge should be turned into an opportunity, both by the government and by Parliament, to provide a statutory basis and an oversight mechanism for our intelligence agencies. A template in the form of a private member’s bill introduced by me in the Lok Sabha entitled “The Intelligence Services (Powers and Regulations) Bill 2011” already exists. The NCTC can be incorporated in omnibus treasury legislation with statutory safeguards that clearly delineate the role of state governments in this existential struggle. This should be in addition to the operational standing council NCTC order 2012 seeks to create. This would prevent the bogey of federalism from derailing the fight against terror.

The writer is a lawyer and Congress MP. Views are personal