NCTC: Over the top ideas rain trouble on government

ONE of the features of the infirmity of the second UPA government is its poor power of anticipation. This is manifested in the manner in which it has been blind-sided by the negative response of almost all Opposition-ruled states to the order creating the National Counter-Terrorism Centre (NCTC).
That these states include Tripura, ruled by the Leftists, centrist Orissa, Bihar and Tamil Nadu, and the right-wing BJP-ruled Madhya Pradesh, Karnataka, Uttarakhand and Gujarat, tells its own story.
Though they have not spoken, the BSP that rules Uttar Pradesh and the Akali Dal-run Punjab are likely to have a similar view.
The situation is not dissimilar to what happened when the government announced its decision to permit 100 per cent Foreign Direct Investment (FDI) in multi-brand retail in December. But the issue of the NCTC is different.
It is not just a matter of anticipation, but something which appears to be questionable in law and utility. Everyone is agreed that India needs to do a great deal to enhance its ability to respond to the terrorist threat. For the past 30 years, we have suffered from the scourge of terrorism, and even today, our ability to thwart attacks in advance is negligible.
In the past month, we have heard of the peculiar clash between the Delhi Police special cell, acting as a proxy of the Intelligence Bureau (IB), and criticising the Mumbai Police for arresting one of their informants.
Insiders will tell you that the Mumbai Police are no angels, divided as they are between the crime branch and the Anti-Terrorism Squad.
The lack of coordination between the various intelligence agencies and the state police departments was one of the major reasons why the NCTC was mooted. It was proposed that the Multi-Agency Centre (MAC), set up by the group of ministers report of 2002 to fuse intelligence on terrorism from a variety of sources, become the core of the new NCTC. 
But where the MAC was confined to intelligence gathering and analysis, the NCTC will have investigation and operations functions as well.

Even more ambitious was the move, as enunciated by Union home minister P. Chidambaram in a speech at the Intelligence Bureau centenary endowment lecture in December 2009, to place institutions like the National Investigation Agency, the National Technical Research Office (NTRO), the National Crime Records Bureau, the Crime  and Criminal Tracking Network and Systems and  the National Security Guards under the NCTC; and have the counter-terror work of the Research & Analysis Wing (RAW), the Aviation Research Centre and the Central Bureau of Investigation (CBI), too under this organisation.
Clearly, Chidambaram was poorly advised. The proposal was transparently way over the top.
Terrorism is a major threat to India, but it is by no means the only one, or the most potent one. It simply does not make sense to have the NTRO, which specialises in high-end technical intelligence against China and Pakistan, to be made subservient to a counter-terror body. And why should the JIC whose remit is to provide analytical reports on subjects ranging from nuclear weapons to climate change be part of the NCTC?
The result was that the proposal was put through the grinder through 2010 and 2011 and when it emerged late last year, Chidambaram’s more extravagant claims were shorn off. 
But even the truncated proposal which has now been notified by the government has problems.
First and foremost, it locates the NCTC within the IB. There is a problem here. Though the NCTC has drawn its powers from the Unlawful Activities (Prevention) Act of 1967, the IB itself is not subject to any legal statute. It was established in 1887 through an office order to spy on Russian activities, and later on the Indian national movement.
Subsequently, there has been no effort to legislate its existence and place it under some form of parliamentary oversight, as is the practice in democratic countries. The government of India has ensured till now that the IB has no powers of arrests and seizures.
Whatever information or evidence it gathers is handed over to the state police services, or the CBI, which undertakes investigations, effects arrests and detentions and processes the evidence for prosecution.
By first placing the NCTC under the IB, and then giving it investigation and operations functions, the government has crossed an important firewall.
In great measure, the response of the states to the NCTC proposal is based on the fear that the central intelligence agency, already something of a bugbear for the Opposition, will become even more all-pervasive and powerful. More important, it will encroach upon the powers of arrest and detention which currently reside with the states.
Of course, there is Article 355 of the Constitution which states that “It shall be the duty of the Union to protect every state against external aggression and internal disturbance….” The wording is unambiguous “It shall be the duty…”, in other words, there is a mandate. But taken together with other Articles, it is clear that the mandate is for a cooperative and consultative federalism, not one that is run by the diktat of the Union government.
There is nothing wrong with the idea of the NCTC, and our recent history will tell us that we need a strong counter-terrorist organisation. But there is also a need to understand that huge organisations which are “too big to fail” are not a particularly good idea.

Second, that crossing the firewall between intelligence gathering and operations, particularly within the national boundaries, is a no-no and will take India down a dangerous and slippery slope, especially since the IB does not have any form of administrative or parliamentary oversight, leave alone legislative authority.
Third, that counter-terrorism requires a bottom up approach where our state police and intelligence services need to be revamped first, before any effective counter-terrorist strategy can get under way.

Mail Today Feb 22, 2012