Tamil Nadu Chief Minister Jayalalithaa could not have put her State Government’s position on the controversial notification by the Union Home Ministry on the setting up of the even more controversial National Counter-Terrorism Centre (NCTC) and its imports on larger issues of Centre-State relations and equations under the Constitution than describing it and allied notifications of the kind as "autocracy consisting of a government by the Centre, of the Centre, for the Centre". The allied notifications in this regard confer policing powers in matters of investigation and arrests on the Border Security Force (BSF) the Railway Protection Force (RPF), neither of which were considered for such powers when established in the first place.
Considering that the Intelligence Bureau (IB) is tasked as the nodal and supervising agency under NCTC, it is anybody’s guess if the Centre is keen on acquiring powers that are not available to the Union Government at Independence, and for deliberate reasons that has since been respected by Parliament and State Legislatures in terms of treating Law & Order as a State subject and Defence and Foreign Relations as Central subjects under the very same Constitution. These have political and constitutional consequences, not to mention the practical problems in execution. The ’Rajiv Gandhi assassination case’ is a classic example, wherein the arrival of the SIT chief at the Konnakunte hide-out of the LTTE killers gave away the surrounding cops to those hidden inside a rented house. They committed suicide, the class LTTE way of consuming cyanide, and/or shooting the self, by the time the top man arrived, ready to command the operation. Such problems are institutional, and under the proposed scheme, could get institutionalised, as well.
Maybe, the Centre can put forward the argument that some of it may have flowed from Tamil Nadu under Jayalalithaa now, and her predecessor DMK Chief Minister M Karunanidhi had usurped some of these defined powers of the Centre, by excessively commenting upon bilateral relations with the Sri Lankan neighbour, in matters of both foreign and defence policies. Likewise, West Bengal Chief Minister Mamata Banerjee too should have seen it coming when she started interfering in India’s Bangladesh policy by dictating terms to the Centre on the Teesta water-sharing deal, successfully. Defending the rights of her State and its people is one thing, but doing so in a way it affects bilateral relations and also interferes with established mechanisms of policy-planning and execution is another.
Yet, neither of these cases, if put forward, would justify the Central notification on NCTC, and amendments to the BSF Act and the RPF Act. The former in particular is a para-military force, which from time to time has nonetheless been deployed to help the civilian uniformed services and the civil administration to manage situations. That followed the early realisation that the armed forces, trained and prepared for the sole purpose of defending the nation’s sovereignty and territorial integrity, from external aggression in formal adversarial situation from outside the nation’s borders, should not be deployed against one’s one people even in the worst case scenario. Yet, the BSF was deployed even capture brigand Veerappan, again when Jayalalithaa happened to be Chief Minister. There again, saner counsel reportedly prevailed and the BSF was found not to be the agency to be called upon to go after a ’common criminal’, whose offences fell under civilian laws like the Indian Penal Code and the Arms Act.
Between them, the BSF and the RPF have the depth and the reach that is not available to any State police in the country --- or, all of them put together. If the idea was to empower the BSF only to prosecute cases pertaining to illegal border-crossing and related offences, and the RAF with offences committed to and on Railway property, sooner than later, the questions of similarly empowering the Customs and the Central Industrial Security Force (CISF) with policing powers of the kind would arise. The day of having to confer the Coast Guard with those powers, even while it continues to be clubbed with the Navy, otherwise, would also find adequate justification - even as there is the need, however. It is another matter that the notifications in this regard have not clarified anything of the nature, either. Better or worse still, in theory first - and practice later (hopefully not) - a situation could arise in which the "Big Brother" would begin "watching"!
As for as the lead or nodal agency under NCTC is concerned, intelligence-gathering is a specialised task, and is vastly different and distinguishable from the normal policing duties in terms of criminal investigation and prosecution is concerned. A ’crime’ under the law has two major components, to be taken on record - material/circumstantial evidence, and mens rea, or motive (for committing that crime). A prosecuting agency would be looking at ’finer aspects’ of judicial scrutiny, and at times may be tempted not to follow up on a ’lead’. An intelligence agency’s job does not always end up in prosecution, as either of the two components may not be present in many of the cases where they have the ’lead’.
This does not mean that the threat of crime does not exist. But ’crime’ in the books of an intelligence agency cannot be quantified under the ordinary laws as ’murder’, ’theft’, etc, and treated and/or dismissed as such. Targetting the State (and humanity at large), as happened with 9/11 and 26/11, was not about the number of casualties, or the destructive potential of the ’crime’. The theft of ’sensitive documents’ or a computer chip again cannot be handled as ’robbery for gain’. The monetary value of the losses cannot be quantified. The intelligence agencies handle cases, whose monetary value or loss cannot be quantified.
Following the ’leads’ in such cases requires an approach and mental attitude that is vastly different from those required for normal crime investigation/prosecution. If the idea is to strengthen the linkages between the ’intelligence leads’, investigations, prosecution and conviction is the issue - where State Governments and agencies may not be up to the required standards, owing to a multiplicity of reasons - then the way out should be to strengthen the CBI further, particularly in terms of human resources in terms investigation and prosecution, and put the linkages between various Central agencies and the CBI on a firmer footing. The alternative could be to confer greater prosecution powers to the National Intelligence Agency (NIA), another recent brain-child of the Centre, and allow it to handle all terrorism-related cases.
Here again, the Centre seems wanting to confer on the NIA the ’lead’ status in investigation until the Government makes an assessment of individual cases, and decides on which of them should the NIA handle. Until such time, the agencies of the State Government concerned would be handling the case. Between the commission of a terrorist act and the Centre’s decision, much damage could have been done to the investigation process, particularly if the investigating agency were to be changed mid-stream. What may be in order would be for the State Government concerned, after assessing the progress of the investigations, could seek help from a central agency like the NIA or the CBI, where greater coordination is required. Even here, State Governments have been found wanting, in the sense, they often take ’political’ or ’politically correct’ decision on not to summon or to summon the CBI for investigating specific cases. The need and tendency for the higher judiciary to call upon the CBI to investigate particular cases also needs to be taken into consideration.
Given the fact that ’militancy’ has been taking various forms and shape, and ’internal security concerns’ of the Indian State have become vastly different, and much more challenging than on the earlier day, there is however need for greater expertise and coordination in terms of investigation and prosecution. Yet, at the same time, given the depth and reach of the terrorists/militants, in the Indian context in particular, there is an even greater need to sensitise the local constabulary and other agencies of the State police concerned about the need and motivation for following up on ’leads’ and coordination with others. Even in this hi-tech world of crime and investigation, the bottom-up approach in investigation should not be lost sight of.
What is required is a balanced mix of both, which again only the circumstances of individual cases would command, often post facto. What is thus required is capacity-building in and for State police and crime investigating agencies (call it ’anti-terrorism cell’ or whatever) with constant contribution of material and evidential inputs from a central agency. Which is what is happening now, but over time certain loopholes may have crept in, both in terms of laxity and deviation, technology advance and motivation - the last one, both of the terrorist and the investigator. They alone needs to be plugged, and if the creation of a new nodal agency alone would help, that should be done. But such an agency, or agencies, should not become a substitute for existing agencies, or repeat what they have already been doing.
The current series of notifications has the potential to create a ’police raj’, under the Intelligence Bureau (IB), when that may not be the intention even of the Union Home Ministry at present. However, as the Emergency era and the abuse of Article 356 until the Supreme Court intervention in the ’Bommai case’ (1994) showed, the tendency of a politically-cornered Government at the Centre to use, misuse and abuse the instruments under its hands is something that needed to be ab initio checked. There is thus no need to introduce a practice that was not there in the first place - and the introduction of which now does not come with any guarantee that it is going to change the situation on the anti-terrorism front, drastically or in any meaningful and substantial way.
For the Centre to usurp the State’s powers in such matters, it has to come out with the case that the existing scheme of divided powers and responsibilities between the Centre and the States was the major, if not the exclusive reasons, on fighting terrorism in the past - or, that the absence of these powers at the hands of the Central agencies concerned would have, and still continue to improve matters very solidly. By and large the existing coordination between Central agencies and the State police has not suffered much, despite some mishaps of the kind. They have occurred even within Central agencies, the classic and tragic case being the ’Rajiv Gandhi assassination’, where LTTE radio-messages after being intercepted were not decoded or passed on to the relevant authorities. In 26/11 ’Mumbai terror attacks’ again, the lack of coordination and the absence of preparedness became pitiably palpable - be it in alerting and calling in the NSG, and looking at the logistics. As subsequent reports indicated, their arrival was delayed by the absence of a stand-by aircraft and also for want of a bus to transport them.
Decentralising the bases of the NSG, for instance, does not necessarily mean that even the very same hiccups would not recur, as the four metropolis are only nodal points where terror-attacks may happen, but they need not be the only places where they occur. After all, a hijacked Indian aircraft landed at Amritsar, not elsewhere - and Amritsar is not a metropolis. If anything, a terrorist would look at such loopholes while planning his operation, as happened in the US on 9/11. These are systemic weaknesses that will multiply at one end even as the Government(s) seek to fill up some at the other end. Ultimately, only the negatives flowing from the Centre’s notification would remain, and the powers for Central agencies to arrest and investigate criminal cases wold be seen as being misused to settle political scores - as was the case with MISA, TADA and POTA.
Larger issues of constitutional propriety and position remain. Deliberately and after deliberating for long, the Constituent Assembly decided on the Government scheme for free India, and called it a ’Union of States’. Yet, pundits called the Indian Constitution ’quasi-federal’, not ’unitary’, despite the Centralised character that was built into the scheme, through such provisions as Article 356, and the powers for the Centre to appoint Governors to the States, rather unilaterally, with the States concerned having no power to remove the appointee. Rather, the Governor under the Indian Constitution is the only post, which does not come with an impeachment add-on provision.
Yet, over the decades, the Centre has kept by the word of the Constitution-makers that the State Government should be consulted in the appointment of Governors, and their views respected where a change is sought. Where the Centre continued to be insensitive, as in the case of repeated misuse of Article 356, relating to the dismissal of State Governments and dissolution of State Assemblies, the higher judiciary stepped in through the ’Bommai case’ verdict. All this also underline the fact that where absolute powers rested with an absolute authority, those powers are bound to be misused, and misused in ways that the Founding Fathers might not have comprehended in their time.
(The writer is a Senior Fellow at Observer Research Foundation)
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