Terror trackers

HOME MINISTER P. Chidambaram deserves to be complimented for pushing through Parliament legislation that seeks to create the long-awaited National Investigation Agency (NIA) to investigate major terrorist attacks. Another Bill that was pressed alongsi de proposed amendments to the Unlawful Activities Prevention Act (UAPA) in an endeavour to deter those designing to commit terrorist acts. Members of the two Houses, especially those in the Opposition, deserve praise for not indulging in quibbling and semantics and allowing the two Bills to sail through.

The enormity of the Mumbai attacks possibly threw up the consensus that was so badly required by a nation battered by terrorist attacks in the past one year. As far as the debate outside Parliament is concerned, the NIA has drawn few adverse comments, confirming the general awareness of the need to prosecute terrorists effectively. But in respect of the changes to the UAPA, opinion is divided.

Human rights groups, including Amnesty International, denounced the changes proposed (such as a 90-day detention of a terror suspect) as draconian and opening the floodgate for gross abuses by law enforcement. I would have been surprised if there had been no such criticism.

In a way it is good that the Bill is hotly debated. The intensity of the discussion would serve notice on policemen charged with investigating terrorism that they should behave themselves and not indulge in excesses. This is a pious hope that may or may not be realised.

The background to the creation of the NIA and the amendments proposed to UAPA is widely known. It is the escalating terrorist violence in the country that has prompted our lawmakers to wake up from their slumber and act as they have done now.

For quite some time, nobody in government, either at the Centre or in the States, seemed to be in control over a deteriorating situation where terrorists, home-grown and those from across the border, could strike at will. There was growing scepticism about the ability of the police force to touch even the fringe of the problem. Public patience was wearing thin and the Mumbai incidents were the last straw.

Political parties and the government had no option but to do something dramatic to convey to the electorate that they had every intention to step in to stem the rot. This explains the flurry of activity one saw in the past few days including the induction of a new Home Minister in place of a beleaguered Shivraj Patil, who was apparently being protected only as a matter of political expediency and not out of any faith in his abilities.

As for the recent action of the Centre, while the wisdom of making the terror law more stringent is questionable, unexceptionable is the decision to set up a new investigating agency for the complicated and vital task of bringing terrorists to book. Prosecution of terrorists has been slipshod until now, as demonstrated by the poor rate of conviction under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA).

All these days, the Centre cited constitutional difficulties the fact that police and public order lie within the law-making competence of States as the major obstacle in the way of floating a new Central agency on the model of the Central Bureau of Investigation (CBI) and the Federal Bureau of Investigation (FBI) of the United States. (Not many know that even the CBI is at the mercy of State governments for consent to function outside Union Territories. For instance, the CBI may have an office at Shastri Bhavan, Chennai, but this will be a mere ornamental structure unless the Tamil Nadu government notifies its consent for the CBI to function in the State to deal with corruption among public servants working for the Central government. The CBI has no authority to deal with State government officials unless a State government conveys its consent or the High Court/Supreme Court directs it to do so. Even the authority of courts directing a CBI investigation has been recently challenged, and the matter is pending in the Supreme Court.)

Now the Centre seems to have found a way to overcome constitutional constraint to create a national police agency. While there is no official clarification on this point, it is believed the Ministry of Home Affairs is banking on item 1 on the Union List, which refers to Defence of India and every part thereof including preparation for defence, as justification for setting up an anti-terror investigating body. This is a valid and genuine reason that courts can be expected to uphold if the matter is taken to that forum.

The salient features of the NIA, as reported in the press, are

Officers of the NIA to have all powers, privileges and liabilities that police officers have in connection with investigation of any offence.

The police officer in charge of a police station shall, on receipt of the report of the offence, forward it to the State government, which, in turn will send it to the Centre.

If the Centre feels the offence is terror related, it shall direct the NIA for investigation.

Provision for transfer of investigation and trial of offences to the State government with the Centres approval.

The NIA may investigate other offences connected with terror-related offences.

State governments shall extend all assistance to the NIA for investigation of terror-related offences.

The provisions of the Act with regard to investigation shall not affect the powers of the State government to investigate and prosecute any terror crime or other offences.

From what has been attributed to the Home Minister, the Centres objective is to create a lean outfit that will be efficient and effective. It has the right to pick and choose the cases it will investigate. And it has the right to be kept informed of every terrorist incident that occurs in any part of the country. This is very different from what many of us had believed the NIA would be.

The NIA would handle a very limited number of cases, possibly only those with a national ramification. Why cannot the CBI be entrusted with such investigations, instead of opting for a new organisation? The answer is that while the CBI cannot take suo motu cognisance of an occurrence in a State, the NIA will not have that disability. How will an NIA investigation be superior to that of the CBI? This is where the former will have to show its mettle quickly if it is to justify its creation. I hope huge investments will be made in the form of manpower and equipment to make the NIA a crack outfit.

A lot will depend on the initial leadership. Its head, an officer of the rank of Director General of Police (DGP), will have to be an outstanding policeman with a proven track record. I am certain that he will be chosen on merit, and no other consideration will prevail. The problem will be to find suitable investigators to assist him. Having headed the CBI, I know the travails of finding the right material.

Officers of the State police will hardly be interested in joining the NIA. No amount of incentives will do the trick. The perquisites in States, both legal and extra-legal, are too enormous to be ignored when an officer is approached to come over to the NIA. The inevitable geographic dislocation of families of selected officers is another disincentive in many cases. These two factors work against attracting the best talent.

The NIA will, therefore, have to set up its own cadre soon by drawing people from Central police organisations and by direct recruitment. The latter will unfortunately be raw hands that can prove themselves only after a few years of training and investigation experience. This is why I warn against any optimism that the NIA will start delivering the goods immediately.

At the end of it all, one has to pause and consider why there is so much discontent with police performance in the area of terrorism. The whole thing boils down to intelligence failure to predict terrorist strikes such as the one in Mumbai. The common man is no doubt keen that all those guilty of terrorism be brought to book, but he is more concerned with prevention as he does not want to be a victim of explosions set off by terrorists.

Viewed from this perspective, the initial concept of the NIA is a let-down. For, if the organisation is not responsible for the collection of intelligence in what way will it make a difference to the existing situation? If it is only the Intelligence Bureau (IB) and the Special Branch in the States that will continue to peddle intelligence, they may have to change themselves extraordinarily to measure up to the current challenge.

I will opt for a sleek intelligence unit within the NIA, which could add to current resources. I am perhaps saying the obvious, and the new NIA Director General will head in that direction the moment he assumes office.