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Unwatched Watchdog by Sugata Srinivasaraju

A PIL questions the very legitimacy of the IB

No whereofs to it?

    * A PIL filed in and admitted by the Karnataka High Court asks if the IB is “extra-constitutional”
    * The IB hasn’t been constituted under an Act of Parliament, does not have a charter of duties
    * The British set it up in 1887
    * The court has served notices on the home ministry and the IB

***

Is the Intelligence Bureau (IB) really “extra-constitutional” and “illegitimate”? After all, it’s described as a major constituent of our internal security apparatus. R.N. Kulkarni, who served in the IB for over three decades and retired as joint assistant director, has filed a public interest litigation (PIL) in the Karnataka High Court questioning the agency’s legitimacy. The court has admitted the petition and served notice on the Union home ministry and the IB. It comes up for hearing on July 11.

Kulkarni’s main contention is that the IB exists in a constitutional vacuum—that it hasn’t been set up under an Act of Parliament, has no charter of duties, no framework of policies, no rules and regulations relating to personnel, recruitment, training, promotion and transfers. If the IB can at all be said to draw legitimacy, it is from an executive order of the British government, dated December 1887, issued primarily to check dacoity in central India. Kulkarni’s PIL says: “Even under the Government of India Act, 1935, the IB was not recognised as an intelligence agency in the Federal List.... The IB continued to function under the rickety auspices of an administrative order. Intriguingly, even upon commencement of the Constitution of India on October 26, 1950, the IB continued to be sui generis and sans any constitutional or statutory identity.”

Kulkarni also points out a fundamental confusion: is the IB a civilian or a police set-up? In 1980, an affidavit from the Union home ministry to the Supreme Court said that IB staffers were civilians. A similar affidavit was submitted in 1981. But the Fifth Pay Commission equated the IB with the CBI and other central police organisations. Adding to the confusion is the fact that IB top brass are often drawn from the IPS. The present director, Nehchal Sandhu, is also from the IPS. “It’s absurd to contend that an organisation made up substantially of IPS officers could be governed by civil service rules,” says Kulkarni.

The legally amorphous existence of the IB, Kulkarni contends, has major implications for national security and the rights of citizens, for the IB enjoys sweeping powers without accountability and transparency. Its secret fund of over Rs 100 crore is quite often utilised in the most bizarre fashion. “A lot of untold crimes take place in the name of secrecy,” says Kulkarni.

As a spy agency, he says, the IB is entitled to operational secrecy, but it should have a charter. Some of the world’s finest intelligence agencies that operate in democratic countries have stringent frameworks, so why shouldn’t the IB have one, Kulkarni asks, and blames the absence of a clear-cut charter for professional lapses. Perhaps intelligence failures like Kargil and the 26/11 terrorist attack on Mumbai could have been averted. Aditya Sondhi, Kulkarni’s lawyer, who studied the case for six months before approaching the court, told Outlook: “We’ve sought a positive direction from the court. We haven’t said the IB should be declared unconstitutional. All we want is clarity on its legal status. And we also want it to be regulated. We hope this PIL will lead to reforms in our intelligence agencies.”

The questions raised in the PIL will also perhaps have implications for the Research & Analysis Wing (RAW), India’s external intelligence agency, which is also not accountable to Parliament. As things stand, many of those who served with RAW, besides independent intelligence experts, have been strongly recommending that this agency too be made accountable.