Last week, Bengaluru played host to a policy colloquium on national security, threats, challenges and strategies. As is the norm at such gatherings, the usual suspects on the strategic circuit were all in attendance.
The session on intelligence reforms saw veterans who had spent a lifetime practising the black arts of intelligence gathering and analysis sharing their experiences. They were of the unanimous view that there needs to be a proper statutory enactment that provides a legal architecture to our intelligence agencies — the Intelligence Bureau (IB), Research and Analysis Wing (R&AW), National Technical Research Organisation (NTRO) and others. They were also in favour of parliamentary as well as financial oversight despite the Supreme Court refusing to entertain a petition recently praying for the latter.
My invitation to this select group has its genesis in a private member’s bill that I had moved in the previous Lok Sabha entitled the “Intelligence Services (Powers and Regulation) Bill, 2011”. The bill lapsed in October 2012. These veterans told me that this is an idea whose time has come and must be pushed vigorously.
Coupled with their concerns about the internal dynamics of these organisations is the disturbing spectre of the recent hyperactivity of the government in conjunction with sections of the media to try and discredit a court monitored investigation into the fake encounter in June 2004 that resulted in the death of Ishrat Jahan and her compatriots. It raises the apparition of command intelligence as opposed to information whose integrity should be unimpeachable.
Recently there have been inspired stories in the media about three of the 10 mysterious terrorists whose infiltration into India was the subject of an ostensible tip off by Pakistani national security adviser Nasser Khan Janjua having been neutralised. Who killed them, where and how nobody knows. There is no forum where an independent examination can be undertaken about the veracity of such claims.
The proposed bill was divided into eight parts dealing first and foremost with the task of putting the R&AW, IB, NTRO respectively on a proper legal footing and defining the scope, and mandate of their remit. The next part of the bill dealt with authorisation processes, including warrants, procedure for both physical surveillance and electronic interception of communication, including an estoppel on taking action on any intelligence that is obtained without specific authorisation.
For the first time, it talked about a legal authorisation for the R&AW and NTRO to undertake activities outside India. An Indian authorisation would not make an individual immune from breaking law in a foreign country. It nonetheless would still make an arguable case for deportation or exfiltration if he becomes an undeclared though prospectively acknowledged intelligence asset. Moreover, if he were to come in harm’s way for discharging his duty at least his next of kin would have access to some compensation for their would be a paper trail that the person in question was an intelligence asset.
The bill also provided for the constitution of a “national intelligence and security oversight committee”. This was perhaps the most contentious part of the entire scheme of the bill. In detailed consultations with retired senior officials repeated apprehensions were expressed that the members of the oversight committee would not be able to restrain themselves from examining the conduct of intelligence operations.
A special provision was specifically engrafted prohibiting the oversight of current or past intelligence operations. Even the membership of the committee was pegged at the highest level with the chairperson of the council of states, Lok Sabha Speaker, Prime Minister of India, the Leaders of the Opposition in both the Houses and one member each from both the Houses to be nominated by the respective presiding offices.
The bill also talked about an intelligence ombudsman and a national intelligence tribunal. The former is necessary because in the recent past a number of officers have knocked the doors of various constitutional courts to get their grievances addressed. In the process, a lot of linen gets washed in public. Particularly poignant is the case of Nisha Priya Bhatia — a R&AW officer who was compulsorily retired in 2009 and has been knocking the doors of the courts ever since then. There are many such cases that require sensitive handling as the people who work in these organisations do so in an atmosphere of great stress, secrecy and our privy to matters that should not find their way into the public domain in circumstances that are less than dignified and honourable.
An ombudsman who has been the head of the IB, R&AW, or the NTRO and is well versed in the culture and working imperatives of these organisations would provide a much needed ventilation mechanism for a quiet and efficient redressal of grievances.
Similarly, a specialised “national intelligence tribunal” headed by a retired Supreme Court judge and consisting of a retired high court judge and the head of the IB and R&AW alternatively is required to go into complaints by any individual who has reasons to believe that any intelligence organisation has done something wrongfully to him or his property. The bill laid down a detailed procedure for doing so.
The issue of legality or the lack of it is not confined to the intelligence services alone. The Gauhati high court on November 6, 2013, declared that the Central Bureau of Investigation (CBI) as illegal. Though the Supreme Court subsequently stayed the judgment but the issue of its legal status hangs by but a mere thread. Similarly, under what law does the Bureau of Immigration, a subsidiary of the IB that stamps your passports when you go in and out of the country, operate Though the website of the Bureau of Immigration lists a host of laws it administers but the moot question remains when the IB has no legal basis how can its subsidiary, without a legal underpinning, administer a statutory remit
By no means, is the lapsed bill perfect. However, it is a developed template which has gone through a detailed consultation process with not only former officers of these organisations, but with a host of lawyers, civil liberty activists, journalists and parliamentarians who take an interest in strategic affairs and issues pertaining to national security. Will someone pick up the ball and run with it Or is it too much of a hot potato for any establishment to handle
The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle@manishtewari
