The Veil of Intelligence

The latest terror attack in Hyderabad has generated predictable noises from the usual suspects. All of our Very Important Persons “condemned” the attack with the adjective that has now become mandatory for describing any terror attack- “cowardly”. If the city in question was Mumbai, journalists and opinion makers would have gushed to further celebrate the “resilience” of the city. Hyderabad, despite enduring repeated terror attacks, has not been able to steal the “resilience” tag copyrighted by the “Maximum City”.

The finger-pointing exercise ensued. This time not only by perennially feverish TV anchors, but even by intermittently incensed politicians like LK Advani, who were quick to blame the attack on that woeful beast responsible for all of India’s ills – Pakistan. More “balanced” blame-games have come in the form of bashing the inarticulate “retainer”, Mr Sushil Kumar Shinde, who till recently was celebrated as the smiling assassin/executioner of state murders. However, some TV channels went beyond petty admonishments. Using colourful flowcharts, they explained to famished viewers the hierarchy of the terror network that carried out the blasts with an up-to-the-minute timeline of how it was ideated, conspired and executed. All within 24 hours of the blast. If only our journalists doubled up as anti-terror sleuths, we would have attained world peace even without beauty pageants.

Yet, in this information age, to not expect such an overzealous reaction (a mild one if one compares it with any attack on Mumbai) to a brutal terror attack designed to cause maximum destruction, would be ingenuous. Somewhere in all the fury generated, critical questions regarding the ability of our state agencies to prevent and respond to terror attacks have been raised. The attack has also brought back in focus Chidambaram’s still-born brain-child, the National Counter Terrorism Centre (NCTC) which owes its present predicament to resistance from non-Congress chief ministers.

To assert, as Shinde seems to be, that if the NCTC existed, the Hyderabad blasts would not have happened, is an overstatement. This government has always emphasised the non-existence of silver bullets to solve complex problems but has ironically presented the NCTC as one. Propping up special bodies or programmes as quick-fix solutions in a climate which demands the government to “do something” can turn out to be treacherous.  Still, any debate which goes beyond the condemning-crying-cursing discourse, and looks at institutionally addressing the shortcomings of our intelligence and security establishment, needs to be welcomed.

When the NCTC proposal was stalled by various state governments last year, many saw it as a selfish act which ignored national interest by deviously raising the bogey of federalism. While this might be partly true, their opposition was not merely based on a constitutional or ideological commitment to federalism or even against the idea of a national counter-terrorist agency. They feared that the Central government could misuse the wide powers (like arrest and seizures) placed upon the NCTC to target political opponents. One of the chief concerns with Chidambaram’s proposal was that it placed the new agency under the Intelligence Bureau, and this arrangement was problematic as the IB, in Mamata Banerjee’s words is “a secret intelligence organisation without legislative accountability”.

The fear that the NCTC might become an agent of misuse by the Centre, as the CBI is repeatedly accused of being, is not completely unfounded. The IB has been in the past accused of conducting clandestine surveillance of political rivals and if embellished with NCTC, has the potential to cause further abuse of power.  Former home secretary G.K. Pillai has admitted that gathering political intelligence has been an element of IB’s operations. This brings in question the working of India’s intelligence agencies which have been shrouded in mystery.

India’s primary intelligence agencies – IB and Research and Analysis Wing (RAW) – simply put, operate above the law. The Intelligence Bureau was created in 1887 by the British to secretly monitor Russian troop movements in Afghanistan when it sensed a Russian invasion of their colony.  In 1968, Indira Gandhi took away the external intelligence function of IB due to its failures in the China and Pakistan war and gave it to the newly created RAW. However, both the agencies continue to function without any statutory instrument empowering them or laying down their functions.

Interestingly, the legal (or illegal) character of IB is presently in question before the Supreme Court. A PIL filed by the Centre for Public Interest Litigation has sought to make RAW, IB and National Technical Research Organisation (NTRO) subject to oversight by Parliament and also financial auditing by CAG. Prashant Bhushan, appearing for the NGO, has argued that India is the only democracy whose intelligence agencies have no legal legitimacy or parliamentary accountability. Earlier this month, a bench headed by Chief Justice Altamas Kabir sent a notice to the Centre and the intelligence agencies seeking their reply on the questions raised by the petition.

The case presents an interesting scenario wherein a civil society organisation has besought the judicial organ of the state to direct certain executive organs to be accountable to the legislative organ of the state.  But the Supreme Court, irrespective of its good intentions, cannot be considered as the most suitable institution that decides how intelligence agencies should operate. If the Supreme Court issues guidelines on the basis of the demands in Prashant Bhushan’s petition, our intelligence system might end up in an even more precarious situation. If parliamentary scrutiny of intelligence agencies is required, it’s the Parliament as the sovereign representative of the people which should demand this and not the courts.  A parliamentary process can also ensure that the various actors – intelligence agencies, Central government, state governments – are sounded out before establishing ambitious systems.

In August 2011, Union Minister Manish Tewari (who was a back bencher then) introduced a private members bill in the Parliament titled The Intelligence Services (Powers and Regulation) Bill, 2011 which sought to regulate the functioning of our intelligence agencies.  The bill, which is still pending before the Lok Sabha, sought to create an oversight committee – headed by the chairman of the Rajya Sabha and having the Speaker, Prime Minister, Home Minister and Opposition leaders as members – which would submit annual reports to the Parliament. The bill also addresses concerns regarding the partisan nature of the agencies by prohibiting them to “take any action that furthers the interests of any political party or coalition of political parties or other such interest groups”.

Merely creating parliamentary accountability will not solve the manifold issues faced by our intelligence and security establishment. In fact, it could be argued that excessive scrutiny can have the opposite effect – that of creating an extra layer of control that further politicises the agencies and hinders its efficient functioning. But the arguments for providing a sound legal foundation to these institutions remain, independent of the criticism on parliamentary oversight. If the powers and functions of intelligence agencies are governed by a statute within the parameters of the constitution, the avenues to prevent the political misuse of its office will be sufficiently enhanced.

The Budget session which began last Friday has already seen an uproar from the Opposition benches over the government’s failure to prevent the Hyderabad blasts.  The government has skilfully evaded responsibility by blaming the Opposition for stalling the creation of NCTC. For countering the NCTC argument, it’s now up to the Opposition to raise astute questions regarding the framework under which the intelligence and security establishment operate in India. The Opposition could also demand a discussion on Manish Tewari’s bill which would initiate a much-needed debate on the institutional foundations of our intelligence agencies. But its value is more strategic, for it would pit Tewari against his Cabinet colleagues and effectively divide the government and embarrass its stand before the public.  Anyone listening?

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