In­tel­li­gence agen­cies need a le­gal base

The Asian Age - - Edit - Man­ish Tewari

In my last col­umn, I had queried whether the CBI is a le­gal en­tity. This time around I’d like to fo­cus on the le­gal foun­da­tions of our in­tel­li­gence struc­tures — the In­tel­li­gence Bureau ( IB), Re­search and Anal­y­sis Wing ( R& AW), Na­tional Tech­ni­cal Re­search Or­gan­i­sa­tion ( NTRO) and a bunch of other acronyms.

What trig­gered this col­umn was a pub­lic state­ment by one of the com­mis­sion­ers of the Cen­tral In­for­ma­tion Com­mis­sion, Divya Prakash Sinha. He os­ten­si­bly stated that in­tel­li­gence and in­ves­tiga­tive agen­cies need to be brought within the purview of the Right to In­for­ma­tion Act. He sup­pos­edly said that “keep­ing se­cu­rity agen­cies on a dif­fer­ent pedestal with cer­tain rid­ers is dif­fi­cult to un­der­stand. There are ex­emp­tion pro­vi­sions un­der Sec­tion 8 and 9 of the RTI Act that take ad­e­quate care of in­for­ma­tion which these ( se­cu­rity) or­gan­i­sa­tions may not like to dis­close in the pub­lic do­main.” He added that the ap­pli­ca­bil­ity of the en­abling pro­vi­sions of the RTI Act should be all- per­va­sive for pub­lic au­thor­i­ties. “Trans­parency is the anti- the­sis of cor­rup­tion… My ex­pe­ri­ence in the com­mis­sion gives me an im­pres­sion that ex­emp­tion of se­cu­rity, in­tel­li­gence and in­ves­tiga­tive agen­cies has a sig­nif­i­cant neg­a­tive im­pact on the right of the peo­ple to in­for­ma­tion un­der the Act.”

Brave words at a point in time when the NDA/ BJP gov­ern­ment is propos­ing both pro­found en­fee­ble­ments to the RTI Act and a step­down even in the sta­tus of in­for­ma­tion com­mis­sion­ers through the Right to In­for­ma­tion ( Amend­ment) Act, 2018.

How­ever, be­fore these en­ti­ties are brought un­der the am­bit of the RTI, it is far more im­per­a­tive to put them on proper le­gal foun­da­tions. To un­der­stand the con­text, there is a need to rewind back to 2009. On July 14 and July 29, 2009, I asked two sep­a­rate ques­tions on the le­gal sta­tus of the IB and the R& AW re­spec­tively in the Lok Sabha. Both came up as un­starred ques­tions. The dif­fer­ence be­tween starred and un­starred ques­tions is that while the for­mer are an­swered orally by the min­is­ter in charge, only writ­ten replies are pro­vided for the lat­ter. Both the min­is­ter and the min­istries con­cerned usu­ally treat un­starred ques­tions with less se­ri­ous­ness. Un­like starred ques­tions, where the min­is­ter is sub­ject to the scru­tiny of the whole House and has to an­swer a bunch of sup­ple­men­tary ques­tions from other mem­bers too, in the case of un­starred ques­tions, there is no such pres­sure.

In re­sponse to the ques­tion per­tain­ing to the leg­isla­tive act or le­gal ar­chi­tec­ture from which the IB draws its le­gal/ statu­tory author­ity or right to func­tion, the then min­is­ter of state for home af­fairs came up with a very quixotic re­sponse: “The In­tel­li­gence Bureau fig­ures in Sched­ule 7 of the Con­sti­tu­tion un­der the Union List”. When pressed that pos­si­bly this may not be the ap­pro­pri­ate re­sponse, the gov­ern­ment em­phat­i­cally re­it­er­ated, “The In­tel­li­gence Bureau finds men­tion at S. No. 8 in the Union list un­der the 7th Sched­ule of the Con­sti­tu­tion of In­dia.”

Even an aspir­ing stu­dent of law knows that Ar­ti­cle 246 ( 1) gives Par­lia­ment the ex­clu­sive right to make laws on mat­ters enu­mer­ated in the Union List in the Sev­enth Sched­ule of the Con­sti­tu­tion. In other words, En­try 8 in the Union list enun­ci­ated in the gov­ern­ment’s re­sponse merely gives it the leg­isla­tive power to en­act a statute to bring a Cen­tral Bureau of In­tel­li­gence to be called by what­ever name ( IB or BI) into ex­is­tence. A mere men­tion of a sub­ject in the laun­dry list of leg­isla­tive pow­ers nei­ther gives an or­gan­i­sa­tion life or le­git­i­macy. Un­for­tu­nately, no such law has ever been en­acted by suc­ces­sive gov­ern­ments since the com­mence­ment of the Con­sti­tu­tion.

Sim­i­lar is the case of In­dia’s ex­ter­nal in­tel­li­gence ser­vice, the Re­search and Anal­y­sis Wing. In re­sponse to the ques­tion about the law/ statute which gives R& AW the pow­ers/ author­ity to dis­charge its func­tions/ man­date ef­fi­ca­ciously and ef­fi­ciently, the gov­ern­ment did not try and hide be­hind any ob­fus­ca­tion but candidly ad­mit­ted, “There is no sep­a­rate/ spe­cific statute gov­ern­ing the func­tions/ man­date of the R& AW”. How­ever, in 2000, fol­low­ing the re­port of the task force on In­tel­li­gence Ap­pa­ra­tus which ex­am­ined the en­tire in­tel­li­gence sys­tem in the coun­try, a for­mal char­ter list­ing the scope and man­date of the R& AW was for­mally ap­proved by the Gov­ern­ment of In­dia”.

Con­trast this with the po­si­tion in var­i­ous other coun­tries of the world. The Cen­tral In­tel­li­gence Agency ( CIA) of the United States was cre­ated by the Na­tional Se­cu­rity Act of 1947 and specif­i­cally em­pow­ered by the Cen­tral In­tel­li­gence Agency Act of 1949 ( CIA Act) to carry out the du­ties as­signed to it by the 1947 Act. MI5, the do­mes­tic in­tel­li­gence ser­vice of the United King­dom, draws its le­gal author­ity from the Se­cu­rity Ser­vices Act, 1989, and its sis­ter or­gan­i­sa­tion, of James Bond fame, MI6, or the SIS, from the 1994 In­tel­li­gence Ser­vices Act, thereby sub­ject­ing it’s ac­tiv­i­ties to the scru­tiny of the Bri­tish Par­lia­ment’s In­tel­li­gence and Se­cu­rity Com­mit­tee.

Both from the na­tional se­cu­rity and the civil lib­er­ties point of view, it is in­ap­pro­pri­ate to al­low in­tel­li­gence ser­vices to func­tion with­out a sound and wellde­fined le­gal ba­sis

The For­eign In­tel­li­gence Ser­vice of Rus­sia draws its le­gal ba­sis from the Law on For­eign In­tel­li­gence Or­gans, 1996. The Ger­man Fed­eral In­tel­li­gence Ser­vice, Bun­desnachrich­t­en­dien st ( BND), draws its le­gal sus­te­nance from the Fed­eral In­tel­li­gence Ser­vice Law, 1990. Its ac­tiv­i­ties are su­per­vised by the Par­lia­men­tary Con­trol Com­mis­sion ( PKK) for in­tel­li­gence ser­vices which in turn is em­pow­ered by the law as per the Par­lia­men­tary Con­trol of In­tel­li­gence Ac­tiv­i­ties, 1978. Even in Ja­pan, the Pub­lic Se­cu­rity In­tel­li­gence Agency, that, af­ter its re­or­gan­i­sa­tion in 1996, started fo­cus­ing upon for­eign in­tel­li­gence col­lec­tion, is em­pow­ered by the Sub­ver­sive Ac­tiv­i­ties Pre­ven­tion Law that came into force on July 21, 1952.

Both from the na­tional se­cu­rity and the civil lib­er­ties point of view, it is in­ap­pro­pri­ate to al­low law en­force­ment and in­tel­li­gence ser­vices to func­tion with­out a sound and well- de­fined le­gal ba­sis. There can be no case that an equiv­o­cal or in­de­ter­mi­nate le­gal man­date gives greater op­er­a­tional flex­i­bil­ity. In fact, in an in­for­ma­tion and lit­i­ga­tion age, it has both, an in­hibit­ing and, worse, a de­bil­i­tat­ing im­pact as a lot of peo­ple who have spent a life­time do­ing cloak and dag­ger stuff ad­mit with some de­gree of caveats.

In or­der to sur­mount this la­cuna, af­ter struc­tured con­so­la­tions with a host of for­mer in­tel­li­gence Czars ( fa­cil­i­tated by the Ob­server Re­search Foun­da­tion), I moved a Pri­vate Mem­bers Bill en­ti­tled, The In­tel­li­gence Ser­vices ( Pow­ers and Reg­u­la­tion Bill), 2011, on Au­gust 5, 2011. The bill un­for­tu­nately lapsed when I moved to gov­ern­ment in Oc­to­ber 2012.

How­ever, this is an idea whose time has come. This bill or a vari­ant needs to be in­tro­duced as a gov­ern­ment bill post the 2019 elec­tions.

The writer is a lawyer and a for­mer Union min­is­ter. The views ex­pressed are per­sonal. Twit­ter han­dle @ man­ishte­wari

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