Fear of misuse

Print edition : March 23, 2012

A TERROR SUSPECT being arrested in Hyderabad. A file photograph.-PTI

The NCTC as conceived by the Centre seems a non-starter on two counts: placing it within the I.B. and giving it the power to arrest bypassing the State police.

NCTC should be a centre for joint operational planning and joint intelligence, staffed by personnel from the various agencies.

9/11 Commission of the U.S. on National Counter-terrorism Centre. Lead our nation's effort to combat terrorism at home and abroad by analyzing the threat, sharing that information with our partners, and integrating all instruments of national power to ensure unity of effort. Mission Statement of the NCTC.

THERE is something wrong about the way in which federalism has evolved since 1950 when India gave itself a good Constitution. The enlightened citizen knew that a group of highly motivated, knowledgeable and patriotic Indians drafted the sacred document, which was practical and had borrowed the best features of constitutions the world over while opting for a federal structure. Despite amendments to it in the past six decades, the Indian Constitution has withstood the ravages of crass politics. India may not be a federation in the classical sense, where powers are nearly equally distributed between the federal and State governments. It is a quasi-federation in which the Central government has undoubtedly greater authority than the constituent States in several areas of governance. The question that is now uppermost in debates is whether this apparently unjust distribution of powers is any longer tenable. Is it time to make the States equal partners, ignoring the fact that occasionally some of the States may have acted arbitrarily to serve their narrow partisan and regional ends?

These are some of the thoughts floating around in the context of the controversy over the Union Home Ministry's proposal to set up a national counter-terrorism centre (NCTC) on the lines of the organisation that came into existence in the United States in 2004 in response to 9/11. The Indian NCTC was to commence its work from March 1. But following protests from at least seven Chief Ministers, the Home Ministry announced that the notification issued in this connection would not be operationalised.

Why the states are wary

The controversy over the Centre's alleged move to usurp the authority of the States may not die down soon. The episode has given rise to a feeling that the Centre did not do its homework and took the States for granted.

The impression one gains from media reports is that the States do not dispute the need to upgrade themselves in the fight against terrorism or the role that New Delhi must play in combating the scourge. The creation of an NCTC per se is not unacceptable to the States. What seems to have irked them is the proposal to entrust it with the authority to make arrests. Without this power, merely placing the NCTC within the Intelligence Bureau (I.B.) for the purpose of coordination may not have provoked the States so much. After all, the I.B. is already liaising actively and purposefully with the States in fighting terrorism, and a generally stable relationship between the two is in place. What has produced sharp dissent is the authority proposed to be given to the new body, which would be part of the I.B., to arrest a terror suspect found in a State and hand him over to the State police.

The States see a bogey here. They believe that the Centre could abuse this provision and direct the I.B. to make questionable arrests on the basis of political considerations. This apprehension reflects an enormous trust deficit' (a euphemism for suspicion, and a favourite expression of some Western-educated Ministers) in the relationship. But then, States cannot be faulted either. This is because Central governments have, in the past, given room for doubts, especially in the area of public order.

A series of arrests in a State that is ruled by a party that is in the opposition at the Centre could well be exploited by a tendentious Centre to bring the charge of failure of law and order. In such a situation, the Centre, in a tirade against that government, could hint at the imposition of President's rule in the State, although nothing beyond that might eventually take place. This fear of politically motivated destabilisation is what seems to haunt the complaining State governments led by West Bengal. While taking the position that empowering the NCTC to make arrests is well within the ambit of the Unlawful Activities (Prevention) Act, the Union Home Minister has agreed to engage the States in discussions before proceeding further in the matter. This show of grace is most welcome. However, it may at best buy temporary truce.

The Home Ministry's move has evoked adverse reactions from a wide spectrum of experts and scholars also. The I.B. itself could be embarrassed because there is a possibility that the I.B. personnel placed in the NCTC could be tempted to abuse their authority, especially when they are not otherwise accustomed to handling legal authority. I can recall how, way back in the 1970s, transferring the immigration staff at airports from the police to the I.B. led to some undesirable incidents. The power to arrest a terror suspect carries with it the risk of misuse of authority by the empowered organisation. All these years, the I.B. had been an insular body with a specific mandate to collect intelligence. This is notwithstanding the fact that it had an uncomfortably close relationship with the party leading the Central government.

Not many people know that the I.B., as conceived even before Independence, is not a legal entity. It is an attached office of the Home Ministry. Created on the basis of an executive order, it depends on the local police for carrying a piece of information on a crime or terrorist operation to its logical conclusion. For instance, all arrests under the Official Secrets Act, leading directly from information provided by the I.B., are now made only by the police, with the former remaining wholly in the background.

When this arrangement has been working reasonably well, and the I.B. and the police have clear-cut roles, where is the need to tinker with it by creating a counter-terrorism outfit within the I.B. and conferring legal powers on it? If the logic is that the local police have been slack or dishonest in effecting arrests using inputs given by the I.B., there should be other methods by which the police can be disciplined and made to act swiftly to pursue the leads provided by the I.B. This is particularly with regard to combating terrorism. Authorising the I.B. to make arrests on its own will undoubtedly vitiate the atmosphere within that elite organisation.

Modelled after U.S. organisation

The NCTC, as conceived and notified formally by the Ministry of Home Affairs, is modelled after the organisation created in 2004 by the U.S. following the recommendation of the 9/11 Commission. The NCTC in that country is a coordinating body and has a purely analytical role. The authority to conduct searches and effect arrests in terrorism-related cases still rests with participant law enforcement agencies such as the Federal Bureau of Investigation. The arrangement was arrived at on the belief that an empowered NCTC with a charter beyond an advisory function is equivalent to creating a secret police force with no accountability. This might be an exaggerated response to a well-intentioned move by India's Central government. But the point is that the I.B. is not subject to oversight by Parliament and therefore lacks accountability. This is an argument hard to dismiss in a democracy. It is precisely this logic which many in the current polity advance while denying the Central Bureau of Investigation (CBI) its much-needed autonomy.

What then is the alternative available once there is unanimity that a national centre for counter-terrorism at the Union government level is necessary? There is a strong case for bringing in a separate piece of legislation to create the NCTC as an independent body and give it a purely coordinating rule. This is the status of the NCTC in the U.S., which functions under the Director, National Intelligence, a position created after 9/11, and is directly accountable to the President.

The Vajpayee government had in fact created an outfit, which went by the name Multi-Agency Centre (MAC), to coordinate intelligence-sharing. This was done through an executive order. Placed within the I.B. as a clandestine appendage, it had no legal authority, unlike what is now being sought to be given to the NCTC. This is why a new authority that could alter the equilibrium between a responsible Central government and an accountable structure of States is being opposed. What is required is a process of consultation between the two sides so that a viable compromise can be worked out. The Home Ministry has already hinted that this is what it hopes to achieve. This is not difficult to achieve, considering that we are a mature democracy.

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