Define intelligence

Democracies do not need strongmen. Democracies need accountable institutions. The snooping and surveillance spectre that episodically explodes must draw our attention to the legal architecture that governs our law enforcement and intelligence organisations that have the authority to deprive people of their life, liberty and transgress even into their bedrooms. It, therefore, begs a question: What exactly is the legal foundation of the Central Bureau of Investigation (CBI), Intelligence Bureau (IB), Bureau of Immigration (BOI), the Research and Analysis Wing (R&AW) and the National Technical Research Organisation (NTRO)?

The CBI was created by an executive order on April 1, 1963. However, it was really born 22 years earlier, as a Special Police Establishment in the department of war in 1941. In 1943, it was constituted into an independent entity by an ordinance, namely the Special Police Establishment (war department).

On September 25, 1946, the then federal government promulgated yet another edict called the Delhi Special Police Establishment (War) Department ordinance. On October 1, 1946, in exercise of powers conferred by the said diktat, the authorities mutated the Special Police Establishment (war department) into the Delhi Special Police Establishment.

The Delhi Special Police Establishment Act that came into force in November 1946, subsequently repealed the ordinance of September 25, 1946.

In the discharge of its legal duties, the CBI still functions as the Delhi Special Police Establishment ostensibly constituted before Independence, on October 1, 1946. It the legislative Act or legal architecture from which the IB draws its legal/statutory authority or right to function, the government came up with a very quixotic response: “The Intelligence Bureau figures in Schedule 7 of the Constitution under the Union List”. When pressed that this may not be an appropriate answer, 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 7th Schedule of the Constitution. In other words, entries in the Union, State and Concurrent Lists specify the subjects on which the Central and state governments have the right to enact laws. A mere mention of a particular subject in a particular entry does not automatically bring a statute into existence. A bill has to be brought before the concerned legislature and passed before it becomes a law.

Similarly, the BOI that functions as a subsidiary of the IB, and the people who allow you in or out of the country function without a properly codified, overarching emigration or immigration law. The capricious manner in which Priya Pillai was offloaded from a Londonbound flight is a case in point. Subsequently, the Delhi high court found the action of the government offensive to a citizen’s fundamental rights and quashed the arbitrary abuse of authority. However, the unsettled points remain and in the absence of an overarching law, every person is at the mercy of the whims and fancies of those who control these points of ingress and egress or their political controllers.

Similar is the case of India’s external intelligence service, the R&AW. In response to a 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. Similarly, the NTRO set up in the wake of the Kargil conflict has no legal structure governing its remit.

It, therefore, remains in the realm of Orwellian conjecture as to on whom are they eavesdropping? Is it on an authorised warrant? Whether those at the receiving end of their tender mercies are national security suspects or political inconveniences?

In 2010-11, I had tabled two Private Members’ Bills in Parliament to provide for a legal framework to the CBI and the intelligence services. The legislations were entitled Central Bureau of Investigation Bill and the Intelligence Services (Powers and Regulation) Bill respectively. Though they could not be taken up then, a codified template exists, if government wants to pick up the ball and run. It is an idea whose time has come.

The CBI has no

independent standing in law. It is a piece of legal

fiction whose underpinnings in law are tenuous.

It draws all its powers from the antiquated DSPE

Act of 1946

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