Event ReportsPublished on Dec 09, 2009
A number of legal frameworks and paradigms exist. But whether India's should be brought in from outside or adapted within the country to suit national requirements is a key decision to be made
Legally empowering India's intelligence and enforcement structures

A day-long roundtable discussion on the Legal Sanctity of India’s Intelligence and Enforcement Structures was held at the Observer Research Foundation on Saturday, September 12, 2009.

The topic was broken into two themes, namely De Jure: Legal Basis for Intelligence and Enforcement Structures, and De Facto: Practice of Intelligence and Enforcement Structures

Initiating the first theme, Lok Sabha MP and Congress spokesperson Manish Tewari pointed out an anomaly in an important issue of governance: the country’s intelligence agencies, including the Central Bureau of Investigation (CBI) , Research and Analysis Wing (R&AW) and Intelligence Bureau (IB) have “no independent standing in law” of the country. They are “a piece of legal fiction whose underpinnings in law are tenuous.”

The CBI, for example, draws all its powers of investigation and arrest from the Delhi Special Police Establishment Act, 1946. The act maintains that the CBI can act only when requested by the affected State government, or when it is directed by the Supreme Court and High Court. This is the case unless it is a matter that pertains to Central government, Mr. Tewari said. Barring this, there is no legal architecture for the intelligence agencies.

These two issues need to be put in two separate baskets for discussion. The first deals with the law enforcement structures and the second deals with intelligence structures, Mr. Tewari said. In the case of former, there is absolutely no ambiguity. The CBI, the Serious Fraud Investigation Office (SFIO), and the Enforcement Directorate (ED) require a transparent legal basis.

As for the latter, Mr. Tewari feels that the reason for the lack of legal basis is confounding. With this he opened a debate: Is there a need to give the intelligence structures a legal basis? If so, what should it look like?

A number of legal frameworks and paradigms exist. But whether India’s should be brought in from outside be adapted within the country to suit national requirements—and to what degree of each— was a key theme of the discussion.

Any framework should protect the organization as well as it protects citizens from wrongdoings of the organization itself. There should be checks and balances so that the organization is accountable to authorities other than itself.

Another view was that laws should not become bottlenecks that impede the functioning of the organizations. For intelligence agencies, a detailed executive order would suffice, as secret organizations should not be exposed to political wrangling.

Hoping for unanimity on the need for legislation, a participant said the Indian Constitution enables Central government agencies to conduct investigations inside a State only with the consent of the State government.

This has led to problems of accountability within States that must be explored and resolved.

The requirement for consent should be modified slightly: in situations deemed extraordinary by an independent body, the Central Agency should be allowed to investigate against the will of the State government. Gujarat in 2002—the Best Bakery case and Godhra riots—were a major case in point.

The L P Singh Committee report had gone into the workings of the IB and CBI and had proposed a legal charter as well as a legal framework and charter of duties but they have not been implemented.

A legal framework for intelligence agencies must uphold the rule of law and be “absolutely impartial.” In the United Kingdom, there is a 9-member Parliamentary Committee that evaluates the work of the British intelligence agency. A legal framework is particularly important in India, as the Indian bureaucracy is “totally unaccountable.”

There is a widely held belief that the heads of intelligence organizations are not accountable to anyone but to their political bosses, whose political agendas can compromise an investigation. For this reason there is a strong need for developing a legal framework for intelligence agencies.. The second session, De Facto, focused on the Practices of the Intelligence and Enforcement Structures.

A distinction between domestic intelligence and foreign intelligence agencies is that the former operate within one’s own country and must function within the laws of the state. The latter, however, do not operate within a permissible area; while they may be working in the interests of one’s own country, they are certainly not operating in the interest of the host country, and are thus not liable to legal accountability.

Since external intelligence agencies operate on foreign soil, they practice extra-legal or illegal activity so far the host government is concerned. Accordingly governments need a principle of deniability since relations between sovereign powers could be harmed. Because of the nature of the activity of the external intelligence agencies, it was felt that an agency like the R&AW must be sheltered from domestic politics and its regional or coalition whims.

The nature of threats to the country is rapidly changing. There is global terror, human trafficking, narcotics, gun running and arms smuggling, money laundering, counterfeit currency and so on. Modern day espionage requires different kind of skills such as language and modern communication tools.

However good a piece of intelligence may be, it can not be bought off a shelf—intelligence acquisition and analysis requires uncommon rigor and discipline.

Dwelling on the need to set up of an oversight process for the agencies, some experts said that monitoring mechanisms seem to have worked in two party systems of government.

In multi-party systems or coalition politics, smaller parties often indulge in hard political bargains. Hence an oversight process may not promote the efficient functioning of the agency; intelligence is not for the government of the day but for the country.

Conversely, while intelligence agencies should be made accountable, “overzealous accountability leads to suffocating of the agency” as in the US Congress in the 1980s. Thus it may be beneficial if suggestions for the mechanisms of agency oversight come from within the agencies themselves.

In this context, the efficacy of an Oversight Committee consisting of the Prime Minister, the Leader of the Opposition and presiding officers of the two houses of Parliament was questioned; the relationship between the agency, the legislature, and the oversight body would be a key consideration. In a fast changing world with growing threats to national security coming from different national, regional and international sources, intelligence agencies require different skills and expertise. In this context, there is not only a need to recruit motivated personnel but also to develop mechanisms for retaining the talent.

Decrying the quota system in intelligence organizations, a view was expressed that the intelligence agencies should not be treated differently from other civil and police services in matters of promotion so that cadres remain motivated enough.

The present system of intelligence agency recruitment is not in tune with the changing time and it was suggested that talent could be tapped at the university and college level. Though salaries could not match those of the corporate world, there is a need for better pay and other allowances that are different from other civil services. In this regard, a hardship allowance similar to the corporate sector could be explored.

Intelligence and enforcement agencies need to have a legal framework and their working should be brought up to speed with present day realities.

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.