When talking about Intelligence agencies, the first thing that comes to mind is secrecy – the services must, it is widely concurred, operate in secret so as to be highly effective. No wonder, when it comes to locating these agencies in a democratic framework, where the rule of law operates, and where accountability and transparency are prized, it may at first seem almost a contradictory idea.
Take the case of India’s internal and external intelligence agencies. The Intelligence Bureau (IB) and the Research and Analysis Wing (RAW) carry out numerous operations ranging from counter-terrorism and tackling separatist movements to critical infrastructure protection. They also do all this without any statutory charter in place empowering them to do so.
There is a clear and urgent need for providing legislative oversight for these agencies, a need which can be articulated primarily on the grounds of efficiency and basic constitutional and administrative law. Questions of efficiency come to the fore when we consider issues of unclear strategic guidance and obscured responsibilities that plague the functioning of the agencies presently. Considering further that assessments made by intelligence agencies act as the point of departure for law enforcement units to act, it is important that the substratum of information be strong and reliable. Again, in the legislative vacuum that the agencies operate in, comes the potential of abuse of power and violation of basic constitutional rights such as invasion of privacy following unregulated information gathering and surveillance. The Constitutional scheme at present has provided for the Union Government’s power to enact legislation in this regard, with the Intelligence Bureau specifically finding mention in Entry 8 in the Union List.
The need for establishing oversight mechanisms vis-à-vis intelligence agencies is not a new one, and has been experienced and dealt with by different parts of the world, starting with the United States establishing two Congressional Committees in 1976 and 1977. Following the U.S., Australia and Canada legislated for intelligence oversight in 1979 and 1984 respectively. Reforms spread to Europe over the course of the next two decades, though progress outside has been much more stifled. Again, there are exceptions to the same, with countries like Argentina, South Korea and South Africa having established systems of accountability. Special reference may be made to the case of the United Kingdom. Initially, it was the Maxwell-Fyfe Directive of 1952, an administrative charter, that was the sole officially published document detailing the work of the intelligence agencies - from where they drew their power. The Charter could be changed without reference to the Parliament, and established no formal legal limits and controls. The operation of the intelligence services of the UK in such a legislative void eventually came up for challenge before the European Court of Human Rights in the case of Harman and Hewitt v. UK, where the lack of a specific statutory basis for the UK Security Service MI5 was held to be fatal to the claim that its actions were “in accordance with the law” for the purpose of complaints of surveillance and file-keeping contrary to Article 8 of the Convention on the right to privacy. While the ECHR permits restrictions of certain rights such as that of privacy in the interests of national security, the necessary precondition is that the restriction must be authorized by law. Clearly the administrative charter fell foul of this requirement. It was following this ruling that the UK enacted a statutory charter for the MI5 in 1989, and later, one for the MI6 and Government Communications Headquarters in 1994. The ECHR standard may be analogized to our own Constitution, where under Article 21, no person shall be deprived of the right to life and personal liberty except according to procedure established by law.
Having established this need for oversight as a starting point, it then becomes important to ask – what would be the components of such legislation?
To start with, this legislation would need to provide a clear definition of the mandate of the agencies. A defined understanding of the subject matter that the agencies are to deal with would need to be arrived at. A good example of such a definition can be found in Bosnia and Herzegovina’s statute on their intelligence and security agency, where “threats to the security” of the country are understood to mean threats to the sovereignty, territorial integrity, constitutional order, and fundamental economic stability of the country, as well as threats to global security which are detrimental to it. The definition is inclusive, and goes on to list a number of indicative grounds to properly delineate its ambit. The importance of such a definition lies in the fact that it will curb potential misuse of resources of intelligence agencies for matters that sometimes have nothing to do with any kind of idea about national security – note for instance, the recent Outlook magazine-led expose on unauthorized phone-tapping of several ministers.
There are many different levels of oversight that can be put in place, and an ideal legislation should make space for different levels of checks and balances that, while providing adequate mechanisms for justice in place, do not hamper efficiency to the extent that it becomes difficult for the agencies to operate effectively and expediently.
Ideal levels of oversight would include a measure of internal checks at the level of the agency itself, be it the IB or the RAW. Along with this, a system of Parliamentary and Executive Oversight, with judicial oversight standing as an external tier. Looking at each of these individually – first, internal checks would include mandating officers to report orders that are potentially illegal or improper, and provide adequate whistleblower protection mechanisms for the same.
As for Parliamentary oversight, the international norm is for an overarching oversight body for all the major agencies, rather than having multiple oversight bodies. The merit of having a single oversight body ties into an understanding of how different parts of the intelligence machinery work closely in tandem with each other. The scope of the oversight body – whether it would limit itself to matters of policy and finance, or go into details of operational machinery – is another point that must be taken into consideration. Financial auditing is yet another important aspect that will need to be addressed by the body.
Effective parliamentary oversight in turn depends on effective control of the agencies by ministers, bringing us to the next tier - that of executive oversight. While parliamentary oversight would place more focus on general review, ministerial control would be centered on directing and managing the agencies on a more immediate basis.
Finally, when it comes to judicial oversight, the initial choice to be made is one between using the pre-existing court system and possibly working with a different set of procedures that would be necessitated in the case of intelligence agencies, or establishing a specialized tribunal to deal with these admittedly sensitive matters.
Beyond these basic structures of oversight, there are a range of other issues that will be required to be dealt with in the legislation. The appointment process, that calls for recruiting from the Union Public Service Commission (UPSC) pool, is in need of specialization and a refocus on changing needs of intelligence in the 21st century, while the need for coordination and systemic flow of information between the different agencies is again something requiring a clear mandate in place.
(Danish Sheikh, a 5th year law student at NALSAR, Hyderabad, is associated with ORF’s research study “Legal Architecture for India’s Intelligence Structure”. He is also the editor of Indian Journal of Constitutional Law, NALSAR.)
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