A new plan for securing India?

[chaanakya]

Without passing Act through Parliament NCTC and power to arrest given to IB would not be legal and ultra vires to constitution of India. Law and order is a state subject and only if majority of states approve , the Act would become reality. This NCTC is nothing but bureaucrats working on executive authority . With legal advisors like GEV only God can help this country. The Govt should first pass stringent Anti terrorist law and give enough powers to State police then setup NCTC.

[ramana]

MHA claims the powers to arrest come from the old Unlawful Activities (Prevention) Act of 1967. Coincidently its acronym is same as UPA govt!

This act got amended in 1969, 2004 and 2008. The last one was after POTA was withdrawn.

Here is the NIA position on it

UAPA Pdf

[chaanakya]

Ordinance for UAPA was promulgated in 2004/2008. It refers to CrPC , which provides powers to arrest to Police officers. Powers to arrest given to CBI comes from Delhi Special Police Establishment Act ( yes , CBI does not have its own act as yet). IB officers are yet to be defined as Police officers. hence someone in MHA is certainly wrong. Otherwise as well, power to arrest does not figure in the Ordinance but by indirect reference to the Code (CrPC).

[chaanakya]

Ahh Section 43A from 2008 amendments.

[ramana]

One of the reasons Nixion had to resign due to Watergate, was his use/abuse of CIA for domestic spying on political opponents.


What UPA is doing by giving IB arrest powers is wrong and will usher in elected dictatorship.

[Aditya G]

The NCTC is being looked upon by suspicion due to the Congress/UPA government's poor track record on consulting and co-opting all stakeholders on matters of national policy before putting them on ground.

B. Raman makes his point again, with more elaboration. Mainstream media must pick this up.

http://www.indiandefencereview.com/home ... iasco.html

...

The 9/11 terrorist strikes in the US brought out serious gaps in the functioning of the CTC of the CIA. It was, therefore decided by the Bush Administration in 2004 to set up a National Counter-Terrorism Centre (NCTC) as an independent institution not under the control of any of the existing agencies. It was placed under the Director, National Intelligence, who is one of the personal staff of the President.

Whereas the US model of the CTC was given up after 9/11 due to inadequacies in its functioning, the Indian model of the MAC, patterned after the US CTC model, has continued functioning. Neither the Vajpayee Government nor the Manmohan Singh Government revisited the recommendations of the Saxena Task Force in the light of the 9/11 lessons.

The 26/11 terrorist strikes in Mumbai brought out gaps in the functioning of the MAC. Flow of preventive intelligence and follow-up action on even the limited intelligence that was available were unsatisfactory. In a statement in the LokSabha after taking over as the Home Minister, ShriP.Chidambaram admitted that the responsibility for follow-up-action on the available intelligence was diffused.

In the US, the NCTC is a legal institution set up under a Congressional legislation after bipartisan consultations, but it does not have any legal powers to act on its own in matters such as arrest, detention, interrogation, searches etc.
He, therefore, decided to set up the NCTC after a visit to the US.His model of the Indian NCTC differed from the US model in two respects. The US NCTC is an independent institution not coming under the control of any of the existing agencies. In India, it is proposed to be made a wing of the IB and will work under the DIB.

In the US, the NCTC is a legal institution set up under a Congressional legislation after bipartisan consultations, but it does not have any legal powers to act on its own in matters such as arrest, detention, interrogation, searches etc.

The Indian model has been set up under an executive notification under the Unlawful Activities Prevention Act of 1967. This has obviated the need for fresh legislation for its creation and for fresh political consulations at the Centre and with the States.

More seriously, the Indian NCTC is sought to be given powers of arrest and searches as part of its preventive operations.
The granting of these powers to the IB through the NCTC mechanism could have two undesirable consequences. Firstly, allegations of misuse of the IB for harassing political opponents. Secondly, it will affect the role of the IB as a clandestine intelligence collection organisation. It will be preoccupied defending its arrests before the courts and against allegations of human rights violations.Moreover, presently the IB enjoys protection from the Right to Information Act. If it has these powers and starts functioning as an intelligence collection agency cum central police, it may no longer be able to enjoy this protection.

The Home Minister had two options: Either make the NCTC an independent institution if he felt that it must have the powers of arrest and searches . Or if he felt that it must work under the IB, make it a division of the IB without giving it these powers.

His unwise action in making it part of the IB with these powers could prove counter productive. He should not stand on false prestige. He should re-visit the proposed NCTC architecture in consultation with political parties and the States.

It needs to be underlined that there is no opposition in the country to the NCTC concept, which is necessary. The opposition is to the manner in which it has been set up without adequate consultations and to some of its features.

...

[ramana]

Add to that PC has show a lot of incompetence in his role as MHA. So far NIA which has powers to arrest has not solved one single crime except pursue political ones!

[ramana]

http://www.satp.org/satporgtp/sair/

NCTC: National Confusion on Terror by Centre
Ajai Sahni
Editor, SAIR; Executive Director, Institute for Conflict Management & SATP
The crisis in India today is one of capacities, and this cannot be addressed by the reinvention of institutional forms. It doesn’t matter if our responses are centralised or decentralised, as long as the executive agencies remain infirm, under-manned, under-trained and under-equipped.

...Our principal problems lie, not in architecture, but in manpower, materials and execution. We have eviscerated our institutions over decades, and now believe that the solution lies in creating layer upon layer of meta-institutions to ‘monitor’, ‘coordinate’ and ‘oversee’ this largely dysfunctional apparatus.Counter-terrorism: The Architecture of Failure, November 24, 2011

The National Counter-terrorism Centre (NCTC) is an ill-conceived, redundant and derivative, vanity project, which aspires to imitate its namesake in the US, without the strength, the sinews, the resources or the constitutional context that would make such aspirations attainable. And if the idea itself was bad, its execution has been infinitely worse, tainted by deception and sleight of hand, as the Union Ministry of Home Affairs’ (UMHA) seeks to arrogate powers specifically excluded from its jurisdiction by the Constitution.

UMHA’s National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order, 2012, has, unsurprisingly, run into trouble, with no less than 14 State Chief Ministers opposing the Centre’s move to create the NCTC, effective March 1, 2012. The Chief Ministers have rightly objected to the absence of any consultative process, as well as to specific clauses of the Order, principally including the power of arrest and seizure conferred upon the proposed NCTC’s Operations Division, purportedly under Section 43A of the Unlawful Activities (Prevention) Act (UAPA), 1967.

In his letter of February 24, 2012, in response to the objections voiced by some of the Chief Ministers, Union Home Minister (UHM) P. Chidambaram has artfully argued that the powers conferred on the NCTC derive from the UAPA Amendments of December 2008, and that, when these were brought to Parliament, “There was no demur or opposition to either section 43A or the other amendments”. UMHA officials have argued, further, that when similar powers of arrest and seizure were given to the National Investigation Agency (NIA), through its empowering Act of December 30, 2008, there were no objections regarding any perceived infringement of the Constitutional distribution of powers between the Union and the States. In other words, the States were now presented with a fait accompli and were being told, facetiously, that, having failed to object to the Centre’s jurisdictional enlargement in the past, they had lost their right to do so in the present and the future.

This, however, is evidently not the position UHM Chidambaram projects to his closer confidants. Indeed, if evidence of bad faith on the part of the Centre was required, it is provided by the Wikileaks disclosures regarding Chidambaram’s alleged conversation with FBI Director Robert Mueller at a meeting in New Delhi on March 3, 2009. According to the record cabled by US Chargé d’Affaires Steven White, “[Mr. Chidambaram] conceded that he was coming ‘perilously close to crossing constitutional limits’ in empowering the NIA. He explained the concept of a ‘federal' crime does not exist in India, with law and order the responsibility of the State Governments.” Further, Chidambaram “opined that the NIA law would be challenged in court because it ascribes certain investigative powers to the NIA which may be seen to conflict with responsibility that is exclusively with the States.”

What is even more botehrsome is except for BRaman, none of the foremr RAW or IB personnel have spoken out about giving arrest powers for domestic Intelligence personnel which is a big violation of the Constituion and eventually will usher in decay in IB when these powers are misused wihtout any cheks and balances.


Except in totalitrian states, doemstic Intelligence people are not given arrest powers.


Examples of States with arrest powers to domestic Intelligence people are: Tsarist Russia(Chekests), Nazi Germany(Gestapo), Soviet Union (NKVD, KGB), PRC, a whole bunch of Islamist states with Mukkahbarats.


Per B Raman even British era IB did not have arrest powers in order to maintain gathering intelligence as the primary focus.

[ramana]

Op-Ed in Pioneer, 29th Feb., 2012

The objections raised by the States should not come in the way of setting up the National Counter-Terrorism Centre as proposed by P Chidambaram.


Union Minister for Home Affairs P Chidambaram’s pet internal security project, the National Counter-Terrorism Centre, was supposed to have become operational on March 1, but its launch has now been put off till further consultations with the State Governments. On December 23, 2009, addressing officers of the Intelligence Bureau, he had unveiled the proposed NCTC, boasting it would be functional in one year, whereas the US took three years.

Familiar with turf wars, his own enemies within the Cabinet and bureaucratic cross-wiring, it was uncharacteristic of him to set such an ambitious deadline. He studied the American, the British and the European models, and embarked on unifying all counter-terrorism forces at the Centre and in the States to “preventing, containing and responding” to acts of terror. What was to have been inaugurated on March 1 but has since been put off is a truncated yet an integrated mechanism to prevent and contain (which will include search and arrest powers) without the inbuilt capacity to respond to terrorism.

As originally planned, the NCTC will not be autonomous but work under the Director of Intelligence Bureau. In deep slumber India finally reacted after 14 major attacks — including Mumbai — by replacing Home Minister Shivraj Patil with Mr Chidambaram. The proposed NCTC is only the defensive element of making India safe. For assured security India will have to attack the source of terrorism, wherever it may be.

Internal security experts have reacted essentially in two ways: Calling the new entities like the National Investigation Agency, National Security Guard hubs and NCTC itself a monumental waste, a white elephant when what is required is improving intelligence, grassroots policing, implementation and accountability. And, above all, very tough laws. Supreme Court lawyer Rajiv Dhawan has called the NIA Act of 2008 and the Unlawful Activities Prevention Act of 1967, as amended in 2008, as “draconian”. These were passed by both Houses of Parliament on December 31, 2008. The other lacuna observed is that multiple organisations will now have the power to search and arrest, cutting across State boundaries, though in the case of the NIA it is with the consent of States and after securing court orders.

No one should grudge the creation of even a half-baked and overly delayed NCTC which will subsume the existing Multi-Agency Centre set up after the Group of Ministers report of 2001. What is Mr Chi-dambaram’s masterstroke is in creating the NCTC with the help of existing laws that enabled the notification of NIA and UAPA 2008, thereby obviating consultations with recalcitrant States. According to an authoritative source in the PMO, this was the strategy: First the act, then consultation.

So the UPA does want to usher in a Police state. And the good general in his myopia towards terrorism wants to applaud the move!}


When the NCTC’s history is chronicled, the first chapter will be devoted to comparing it with the game of snakes and ladders, with the ladders missing. The draft of the full bloom NCTC was sent to the PMO in early-2010 and altogether nine times. It kept lying there despite reminders and wholesome prodding, which included meeting members of the Cabinet Committee on Security. Defence Minister AK Antony was brought on board though Finance Minister Pranab Mukherjee, as a conscientious objector, wanted the NCTC’s powers trimmed down.

Even a Group of Ministers produced no outcome and, according to the Home Ministry, the Prime Minister would “just not take a decision like sitting on the AFSPA”. Finally, a high-powered committee was appointed by the CCS that included the National Security Adviser, the Cabinet Secretary and the Home Secretary which produced the diluted version of the NCTC. Consulting States would have meant more delay.

Mr Chidambaram has taken away the intelligence coordination functions from the NSA which Mr Shiv Shankar Menon’s predecessor, former IB Director MK Narayanan, enjoyed. The understanding was that till the NCTC was established, the NSA would continue to coordinate the activities of all the intelligence organisations. India does not have an intelligence czar like in the US, the Director of National Intel-ligence, currently former three-star Air Force Lieutenant General James Clapper — the appointment was created after 9/11. Further the NSA in the US has no counter-terrorism responsibility as the President has an adviser on counter-terrorism. Lt Gen Clapper oversees the NCTC — besides the 13 intelligence agencies — which is a key component of the Department of Homeland Security.

What India needs and has had in the past is a Ministry of Internal Security. Mr Chidambaram, who was in charge of internal security in Prime Minister Rajiv Gandhi’s time, intends to make the NCTC the cornerstone of the Internal Security Ministry once the Ministry of Home Affairs is bifurcated; in the interim, he intends to let the NCTC operate under the Home Ministry, he being the points-person on intelligence and counter-terrorism. Eased out, the NSA would remain in the loop, but Mr Chidambaram will be the Commander-in-Chief.


{So one the slippery slope of a Police state. India doesn't need a Internal security ministry. That goes against the freedom movement.}

So what will the proposed NCTC have under its wings? Although it will work under the IB, which does not have search and arrest powers, the NCTC as of now has been empowered with these. A young and competent deputy director in charge of the NCTC will have an encrypted counter-terrorism data base and communication facilities networking nearly 500 intelligence agencies keyed on counter-terrorism. While the newly-established NatGrid will function under him, the equally new NIA will be patched on for all counter-terrorism activities. A standing counsel representing each State will be available to the NCTC to coordinate with MAC structures in the States. Fears exist that by granting arrest powers to the NCTC, which is excluded from provisions of the RTI Act, the IB might misuse these powers.

{Its not the IB, but the Home Minister could misuse the powers.}


As the oldest victim of terrorism and one that has displayed baffling tolerance, it is time to ask: If New York, London and Madrid can be secured, why not Mumbai or Delhi. After soft-peddling terrorism and politicising it by crying over the Batla House encounter, UPA2 has woken up. The Ministry of Home Affairs claims that since 26/11, more than 51 modules propagating radicalism have been busted, nearly 600 Islamists (and some Hindu) extremists have been arrested, 43 terrorist attacks have been prevented. But terrorists got through on five occasions. Still, this is not bad, but nowhere near ‘zero tolerance’.

Parliament should make law and order a subject on the concurrent list till States have the capacity to combat insurgency and terrorism. Police reforms, mandated by Supreme Court in September 2000, have not been implemented in letter and spirit. The States and the Centre have a common objective of making India safe for its people. Even a watered down NCTC will be a positive step towards strengthening India.

Mr Mehta its not a watered down NCTC but a highly empowered organization under the MHA control without any checks and balances.

Only police states have arrest powers to Intelligence people. Not only is that undemocratic but will destory the IB ethos.

Intelligence is not a police function even though the IB, is comprised of mainly Police personnel.

The niyaat is karab, why this lament at AKA and other good people?

[akashganga]

A different view of securing india. After independence india did well to secure from external physical threats by building good military. India's internal security comes primary from its hindu (hindu plus sikh plus buddist plus jain) majority. See where there are minorities in larger numbers like muslims in kashmir or christians in parts of goa or north east they want to break away from India. The only long term internal security for India is to ensure that Hindus (plus sikh plus jain plus buddist plus athiests) form overwhelming 90% plus of the population. My 2 paise.

[darshhan]

Mr Mehta its not a watered down NCTC but a highly empowered organization under the MHA control without any checks and balances.

Only police states have arrest powers to Intelligence people. Not only is that undemocratic but will destory the IB ethos.

Intelligence is not a police function even though the IB, is comprised of mainly Police personnel.

The niyaat is karab, why this lament at AKA and other good people?

Ramana ji , You have hit the nail on head.By the way in the words of Benjamin Franklin "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety".

[Aditya G]

Ajai Sahni continues ...

Simply put, if the US NCTC were to be called MAC, it would remain as effective (or otherwise) as it currently is. If the Indian MAC is rechristened NCTC, it will remain as dysfunctional.

All said, there is some good reason for NCTC to exist, but the powers to arrest should have been pursued via State Police or NIA setup

[darshhan]

Ajai Sahni continues ...

Simply put, if the US NCTC were to be called MAC, it would remain as effective (or otherwise) as it currently is. If the Indian MAC is rechristened NCTC, it will remain as dysfunctional.

All said, there is some good reason for NCTC to exist, but the powers to arrest should have been pursued via State Police or NIA setup

Aditya ji , There was a very good reason for creating NIA as well . I was all for its formation at that time along with others.And boy were we wrong.More than procedures it is about intent.And in the current UPA dispensation that is extremely doubtful.

Seriously , no more federal agencies for now.No amount of insecurity is enough to justify a Police state.If someone is still not convinced , I request them to go through the details of NCTC again and then imagine how much more powerful will PC become along with rest of the govt.

[ramana]

Better yet read about British rule in India before Independence.

[abhishek_sharma]

Former chief of RAW on NCTC

[ramana]

Former chief of RAW on NCTC

NCTC is a terrific idea but there are questions Centre and states must address

The proposal to operationalise the National Counter-Terrorism Centre (NCTC) from today (March 1) is reported to have been put on hold following the controversy it generated. That controversy rose mainly because the NCTC is to be set up in the Intelligence Bureau functioning under the Union government, which, for the first time in its history of 125 years, is to be vested with powers of search and arrest. An intelligence agency being vested with such powers is being viewed by several critics as a retrograde step repugnant to democratic norms. Second, it is also being seen by nearly a dozen chief ministers as an encroachment on the police powers of state governments.

For a proper understanding of the issues involved, it may be necessary to look at how the concept of the US Counter-Terrorism Centre evolved. In 1985, there was a series of terrorist incidents in various parts of the world, including at the Rome and Vienna airports. Duane Clarridge, a CIA officer tasked to prepare a concept paper on innovative ways to combat terrorism, realised that there was an inherent problem in the organisational structure of the CIA (which is also true of most intelligence agencies). It had separate directorates of intelligence, operations and science & technology, besides regional directorates which had strict geographical boundaries. He observed that with such a structure, the CIA could not effectively deal with acts of transnational terrorism, especially those committed by stateless Palestinians. He proposed the setting up of an inter-disciplinary centre with global reach in the Directorate of Operations, which would combine the resources of all the directorates, including analysts from the Directorate of Intelligence and technicians from the Directorate of Science & Technology. Following a presidential finding on terrorism authorising covert action by the CIA against terrorist groups worldwide, the CTC came into being on February 1, 1986.

9/11 brought about drastic changes in the American approach to the war on terrorism. As proposed in the Intelligence Reforms and Terrorism Prevention Act of 2004, the National Counter-Terrorism Centre (NCTC) was set up in the US under the director of National Intelligence to coordinate the working of all intelligence agencies dealing with terrorism. The official factsheet of the NCTC says that the organisation “does not direct operations or collect intelligence. It is the primary organisation in the US government for analysing and integrating all intelligence pertaining to terrorism (except purely domestic terrorism).”

A similar exercise to ensure coordination in tackling terrorism was undertaken in other Western countries and Australia, post 9/11. The most interesting among these models has been the Joint Terrorism Analysis Centre (JTAC) in the UK. In this model, representatives of all intelligence agencies, including those dealing with defence and revenue, work at a central set-up where information coming from all agencies is pooled. The representatives can pass the information available with JTAC back to their own headquarters and also access the databank of their own agency in order to verify or improve upon the information available with the JTAC, thus contributing to the common output of the JTAC. The centre works under the overall direction of the MI5 director. However, the day-to-day functioning of the JTAC is supervised for one year by an officer, drawn on rotation from each of the agencies represented in it.

In India, the Group of Ministers recommended the setting up of a multi-agency centre in 2001 for intelligence coordination. It, however, did not materialise at least until end-2008, chiefly because the 100 additional posts that the Director of Intelligence Bureau (DIB) wanted for setting it up were not forthcoming. In many ways, therefore, it is a matter of satisfaction that the Union home ministry now plans to set up an NCTC with adequate manpower and adequate powers to collect intelligence, take preventive action, respond with armed might if a terrorist attack takes place, arrest the accused, seize their weapons and other incriminating property, investigate the cases, prosecute the accused and get them punished. From a purely anti-terrorism point of view, this is certainly a terrific idea. After all, organisations like the Narcotics Control Bureau already exercise powers of search or arrest all over India (admittedly in respect of special enactments) without stepping on the toes of the state police. Besides, the director, IB, now, in effect, becomes the Chief of Homeland Security, taking off a great deal of workload which the National Security Adviser was carrying on his shoulders so far. The creation of the post of a Director of National Intelligence on the US pattern in India, to ease the workload of the NSA, was obviously not feasible and this is the next best solution.

But the chief ministers may not necessarily share these perceptions. That is because none of the CTC models referred to above provides for powers of arrest. The obvious question, therefore, is why the NCTC in India requires such powers which successful models elsewhere do not enjoy. Another obvious question is why another designated authority under the Centre when the NIA is already there. An uncomfortable question which may crop up is whether intelligence agencies in India, which now have powers of arrest, can continue to be exempted from parliamentary oversight. The intelligence community may like to know whether the JTAC model, in which all agencies would have a chance, by turn, to supervise the CTC’s day-to-day work under the overall direction of the DIB, would not have been a more satisfactory option. Some DGPs may want to know why it is being presumed that the local police would refuse to act if information is shared with them regarding a terrorist act which is likely to take place in their jurisdiction. Other police chiefs may want to know whether any system is in place to ensure that they would be kept informed and briefed about the progress of investigation in terrorism cases handled by the NCTC or NIA.

Further discussions between the Centre and the states are, it seems, to take place shortly. An informed debate on the basis of expert studies on the subject, particularly those which the government have relied upon in setting up the new mechanism would certainly be beneficial for the country.

The writer is a former chief of the Research and Analysis Wing
[email protected]

All the models citied have Congressional or Parliamentary oversight. Also MI5 is and has never been used to gather political intelligence on opposition parties.

Nixon's hamartia (fatal flaw) was to gather domestic intelligence on political opponents by CIA.

Mr Thakaran should also consider what it means to have intelligence officers with arrest powers could lead to politicization of the process. That has led to fatal failures in the such agencies world over.
IB has a sterling reputation for internal security and is studied by professionals. With this episode it could be one downward spiral.
True IB is staffed with IPS folks but they do not have police powers which are enforcement powers. Combining intelligence and enforcement powers could lead to misuse bu ruling parties.

To me an ideal NCTC whould be under IB but would utilize arrest powers of local police.

Alternately remove IB and put it under NSA as its roles and responsibilities are counter espionage and counter terrorism.

[Aditya G]

Source : Mid-Day Mumbai , 29th February 2012 ,Vikram Sood , a former chief of Resesrach and Analysis Wing (RAW)

http://soodvikram.blogspot.in/2012/03/a ... l?spref=tw

...

Our proposed NCTC, after more than 60 years of terrorism, is the creation of an executive diktat without any parliamentary debate or legislation. It is a successor to the Multi Agency Centre, which never really took off because of turf rivalries. This new centre, which will be subordinate to the Intelligence Bureau, will have indirect powers to arrest, search and interrogate. The caveat that the suspect would have to be produced without any unnecessary delay is an elastic concept.

Arrests and detentions on the basis of suspicion under the supervision of an intelligence agency run the risk of misuse and overuse especially when our data banks about individuals are still inadequate. At the same time, the high powered and state-of-the-art NCTC will have to continue to rely on inexact human intelligence provided by ill trained and under manned forces in the field. The IB and not the NCTC, thus becomes ultimately responsible for follow up action. This would include action relating to international terrorism or acting purely on its own intelligence at other times. Thus, nearly four years after the Mumbai 2008 terrorist attacks, we are not sure when and what kind of NCTC we will have.

The NCTC is meant to be a service agency feeding the government as an interface and coordinating intelligence efforts without running those operations. Logically, the proposed NCTC should not become a super intelligence agency and following from this, take over the operational role of intelligence organisations. On the other hand, intelligence agencies should not become part of the NCTC or even subordinate to it. This would not only hamper intelligence effort that extends beyond intelligence on terrorism, and even warp results, which is far more dangerous.

...

Intelligence agencies are not human rights organisations. Their game is ruthless, requires a high level of deviousness, tenacity and the ability to subvert by whatever means. It is always dangerous to give such agencies the power to arrest and seize. Fears of a secret agency being empowered to arrest search and interrogate are real and are anathema to a democratic dispensation. It is not enough to declare that the present government does not have any authoritarian ambitions but the system proposed must have permanent inbuilt safeguards. Finally, the proposed NCTC should not be located in any of the Ministries or its departments.

Perhaps the NSCS under the NSA would be the best location.

[Lalmohan]

ramana - MI5's role w.r.t. communist, fascist and defintiely irish republican political parties is very blurred

[ramana]

Lalmohan, All those are anti state organizations.
Am talking about normal political opposition parties in the normal political process.


I see that former RAW chiefs have written about the bad idea of arrest powers for Intel orgs. Has any ex IB chief said anyting about that or are not?

If they don't it means they are still in police mind set which is the bane of Indian intel orgs as I wrote in 1999 in the Kargil failure.

[brihaspati]

Ramana ji,
the fear of giving arrest powers is not about its so-called misuse - but the possibility that such an outfit then has almost all the powers of the state without any of its accountabilities, and could turn its bite towards its own master - the regime.

Whenever usual governments or leaders apprehend "misuse of powers" on the "common", it simply means that they are scared that such "users" may not remain under their personal total control.

[ramana]

Well here its the 'masters' via PC that want such powers for thier own minons. There is no one in the 'masters' complaining about such powers.

The silence of the ex-IB chiefs means its a much desired power.

[brihaspati]

True. They are now panicking that non-party groups have also possibly now brought in the GPS listening devices. So one way eavesdropping in favour of one particular party by the agencies is facing obstacles or counter-measures.

[ramana]

Bji,
What is a GPS listening device?

[brihaspati]

Bji,
What is a GPS listening device?

Those that can listen in on GSM and also act as GPS trackers.

[ramana]

Wow!

[Aditya G]

http://www.thehindu.com/news/resources/ ... 931470.ece

NEWS » RESOURCES

February 25, 2012
Chidambaram's letter on NCTC to CMs

[ramana]

Tribune has a set of articles debating the issue. Can some one post them here please?

http://www.tribuneindia.com/2012/20120308/edit.htm

[darshhan]

Tribune has a set of articles debating the issue. Can some one post them here please?

http://www.tribuneindia.com/2012/20120308/edit.htm

First one by Mr.Raghavan(fmr CBI Director)

Raising policing standards is the key

http://www.tribuneindia.com/2012/20120308/edit.htm#6

The Central government and the non-UPA-led States are once again at war. This time it is about the legitimate role of the Centre in keeping a tab on terrorist activities in and around the country. A proposal of the Ministry of Home Affairs (MHA) to create a National Counter-Terrorism Centre (NCTC), which would coordinate the collection and dissemination of intelligence related to terrorism, and monitor appropriate follow-up action has run into trouble. It has been assailed by the non-UPA States as a brazen attempt to politicise the combat against terrorism, while at the same time diluting the States’ role and authority.

The Home Minister Chidambaram’s efforts to mollify the incensed States, led by Mamata Banerjee, saying that the exercise was one aimed at assisting the States rather than undermining their authority, has not cut much ice.

Cooperation for preventive action

Why do we need a NCTC ? I don’t have to go far into the history of terrorism. Only last week did the HM announce the arrest of two Lashkar-e-Toiba (LeT) activists, who were planning to set off some explosives in a crowded locality in the capital. He also complimented the role of three unnamed States in catching the culprits before the attack.

What this instance would highlight is that preventive action- more than detection- calls for the pooling of information and its analysis before tipping off concerned agencies to move swiftly and nab the conspirators.

The essence here is one of unstinted willingness on the part of the agency that knows to share critical information with the one that needs to know. A turf war and one-upmanship are antithesis to a prompt and effective use of terrorist intelligence.

This is what happened in the case of 9/11 among U.S. organisations like the FBI, CIA, Pentagon and others, and what followed is history. Here, information was available in bits and pieces with several units engaged in the business of protecting the nation. They were either unwilling to share it with the others or did not know the significance of what they were holding. The result was calamitous.

The 9/11 Commission, that went into the whole episode, was appalled by this failure and the lack of appreciation by intelligence bodies of their complementary role. After thorough investigation, the Commission was convinced that the need of the hour was one single coordinating body at the centre. This was to be the NCTC, that was set up in 2004, and which reported to the newly created position of Director, National Intelligence (DNI) (not to be confused with the CIA Director), who was placed in the White House. Set up initially under an Executive Order of August 2004, it gained legal authority under the Intelligence Reform and Prevention of Terrorism Act (IRPTA) later in the year. This was in fulfillment of the 9/11 Commission recommendation: “Breaking the older mold of national government organisations, this NCTC should be a center for joint operational planning and joint intelligence, staffed by personnel from the various agencies.”

Since its creation the NCTC in the U.S. has given a reasonable account of itself, and there has been no major terror attack on the U.S. Two incidents of 2009 however revealed the chinks. These were a U.S Army Major attack (November 5,2009) on a recruitment camp in Fort Hood resulting in the killing of 13 persons, and the aborted attempt (December 25, 2009) by a Nigerian national Abdul Muttalab (23) to set off an explosive device on board a Northwest- Delta Airlines aircraft flying from Amsterdam to Detroit.

An inquiry held in the matter was particularly critical of the latter incident, because, although information sharing was adequate, those at the analyst desk had failed “to connect the dots.” The study concluded that the NCTC lacked in resources and a purposive organisation. This indictment alone would indicate that an NCTC was not a panacea for all current ills of the situation. A lot more was needed in terms of employee imagination and alertness.

Attacks despite mac

This detailed reference to what has been the U.S. experience is because our NCTC was to be modeled after its U.S. counterpart. It was created soon after the Home Minister’s visit to the U.S. following the 26/11 attack on Mumbai to study how the organisation had evolved in that country. It must however be brought on record that New Delhi did not have to re-invent the wheel.

This was because, under the NDA government, a Multi Agency Centre (MAC) had indeed been established on the recommendation of a Task Force set up in 2000 under the leadership of Gary Saxena, a former RAW chief. This MAC - in reality the current NCTC – was to be within the Intelligence Bureau (IB) in a genuinely coordinating role. It was the result of an Executive Order, and MAC was not armed with any legal authority. It was entrusted with tasks of “joint analysis, joint assessment and joint identification of follow-up action.” It was to get relevant tasks executed through other agencies, including the State Police.

While I am not aware of any critical evaluation of the MAC, the guess is that it was functioning unostentatiously and professionally. It is an entirely different matter that there were a number of terrorist incidents all over the country since 2000, including 26/11. Whether MAC could be assailed directly for this is a matter of dispute.

Anyhow, following the damage that 26/11 caused to India’s image as a nation capable of taking care of the risks from terror- especially with a troubled neighbor such as Pakistan- with a hyperactive ISI with a notorious reputation for harbouring designs against India, the Home Minister Chidambaram could not rest without any proactive reorganisation of intelligence. This is the genesis of both the National Investigation Agency (NIA) and the more recent NCTC.

Reservations over nia too

There were initial reservations over the legal tenability of the NIA. The States were in course of time convinced that the NIA had its basis on the Constitutional mandate to the Union Government that it should safeguard the country’s defence through an appropriate mechanism. The States were also satisfied that the NIA did not make any serious inroads into their authority.

This is however not the case with the NCTC set up under an executive order taking advantage of the provisions of the Unlawful Activities (Prevention) Act 1967.

In a letter to the States, Home Minister Chidambaram has explained the need for an NCTC. A note attached to the letter makes things even clearer. It says: “A body mandated to deal with counter terrorism must have, in certain circumstances, an operational capability. This is true of all counter terrorism bodies in the world. When engaged in counter terrorism operations, the officers must have the power to arrest and the power to search, which are the bare minimum powers that would be necessary. Besides, the powers conferred under section 43A must be read with the duty under section 43B to produce the person or article without unnecessary delay before the nearest police station (which will be under the State Government), and the SHO of the Police Station will take further action in accordance with the provisions of the CrPC.”

The basic features of the contemplated NCTC are that it will be a separate body within the IB and report to the DIB. It will have powers of arrest and search. In this respect, it is very different from the NCTC of the U.S and its equivalent in many countries.

The flip side

It is the consensus among intelligence professionals the world over that, however powerful their organisations may be in an informal sense, never should they be burdened with legal authority that would make them more accountable to the law and judicial authority and also vulnerable to exposure through such overt actions as search and arrest.

This is why the proposal to arm the IB personnel with new powers has caused eyebrows to raise. I am not very sure whether the IB chief ever fell in line with the proposal wholeheartedly.

There are twin dangers here. First, arrests by IB officers will make them face judicial proceedings every other day. There is secondly the definite prospect of misuse of authority that would vitiate the ambience with an elitist organisation. The posting of IB personnel to man Immigration desks at ports way back in the 1970s brought its own problems, that caused severe embarrassment to the higher echelons of the organisation.

What non-UPA Chief Ministers fear are questionable arrests that could be made by the IB on partisan grounds. A series of arrests in quick succession in a particular State would help to disseminate the impression that the State in question had become a haven for terrorists or suspects. Political propaganda on these lines also cannot be ruled out.

I do not think it is the case of any Chief Minister that the NCTC per se is a bad idea. They consider themselves as patriotic as anyone at the Centre promoting the new outfit. What they plead for is that the new creation should be just a coordinating body and nothing more. Their standpoint is that the exercise of police powers should remain the prerogative of the State Police as enshrined in the Constitution. Nothing should be done to disturb the equilibrium of this well conceived arrangement by the Fathers of the Constitution.

Fundamental to the debate however is the need to re-examine the distribution of powers under the Constitution.

There is a school of thought –which is hard to wish away- that ‘Police’ and ‘Public Order’ should be brought under the Concurrent List. This takes into account the continuing decline in standards of policing all over the country and the abominable politicisation of forces.

It is an entirely different question whether giving a greater say to the Union Government in matters of policing will help to stem the rot. The management of the IPS Cadre by both the States and MHA has left a lot to be desired. Instances of individual officers defying State governments as well as the MHA at the instance of powerful politicians are a cause for concern.

When such undesirable and unprofessional activities are encouraged purely to serve narrow political ends, the apprehension that the proposed NCTC will not rise above politics in exercising its authority cannot be brushed aside. Ultimately, as in every other human activity, objectivity and integrity can alone take care of a situation sought to be protected by law, rules and regulations.

[darshhan]

Part 1 by Mr.N.N.Vohra(Governor of J&K)

Why states alone cannot deal with terror

While a host of issues are involved in any discussion on national security I shall focus essentially on certain aspects of the core issue: are the obtaining Union–State understandings adequate for the effective management of national security?

In this context I feel that it may be useful to make a few introductory observations. In the past decades there have been serious internal disturbances and communal conflagrations in several parts of the country. The affected States have not been able to timely and effectively deal with such developments on their own. Consequently, the Union has been deploying Central Police Forces, and even the Army, to restore normalcy in the disturbed areas.

In certain cases, as for instance in the North-East States, such deployments have been on an extensive scale and for prolonged periods. This has led, among many other consequences, to prolonged agitations for the repeal of the Disturbed Areas Act and the Armed Forces Special Powers Act on the ground that the enforcement of these laws has resulted in large-scale violations of Human Rights of the affected populations. The Government of India has had the aforesaid laws examined by several Committees in the past years. It has, however, not so far been possible to arrive at any clear cut decision regarding the amendment or repeal of these laws.

In the past three decades, the States have been questioning the Union’s constitutional authority to take pre-emptive action to deal with an emerging internal disturbance in any part of the country. Without detailing the arguments raised by the States I would briefly state that, as of today, the Union does not have the authority to suo motu deploy Central Police forces in any State or part thereof to prevent or pre-empt an arising serious disturbance. As per the practice which has evolved over the years, the Armed Forces of the Union have been deployed only after consultation with the affected State Governments or at the latter’s specific requests.

Do States have a case?

Considering the enormous cost paid by the country for the State Government’s failure to prevent the demolition of Babri Masjid, questions have continued to be asked as to what exactly is the Union’s responsibility in such matters. And more recently, after the gruesome terrorist attack in Mumbai in November 2008, serious questions have arisen even about the inherent capacity of the Union to deal with such situations.

Time has come to arrive at clear agreements, within our federal arrangements, to lay down the respective responsibilities of the Union and the States for effective security management. If such agreements cannot be secured then, in my opinion, we need to urgently bring about the required constitutional amendments to ensure that, between the Union and the States, the country can be effectively protected from terrorist and other attacks which may arise from within or beyond our frontiers.

In the context of these introductory observations I would state that, since the advent of terrorism in our country, the safeguarding of national security has emerged as perhaps the most crucial area of governance. It has been realised that endeavours to promote the welfare of our people would have little meaning if the very unity and integrity of the country is threatened and the security of all our people cannot be fully assured.

Not just physical security

The Mumbai terrorist attack has warned us that no more time can be lost in reorganising, enlarging and strengthening the national security management apparatus for effectively preventing and, as necessary, successfully encountering every threat to the Indian State, from anywhere across its land or sea borders or from across the air space. National security could be defined, in simple terms, to comprise external security, which relates to safeguarding the country’s territorial integrity against war or external aggression, and internal security, which concerns the maintenance of peace and public order within the entire country.

Security experts and analysts have generally found it convenient to separately address issues relating to the management of internal and external security. In my view, such a sectoral approach is no longer tenable. Ever since Pakistan launched a proxy war in Jammu and Kashmir and Jihadi terrorist networks started operating in India, the traditional distinction between internal and external security got obliterated and, as we have seen, issues relating to these two arenas have got growingly intertwined. It is no longer practical to deal with them separately.

It also needs to be recognised that, over the past years, the arising security threats and their sources have geographically spread far and wide, far beyond our immediate and extended neighbourhoods, to countries in the Middle East, South East Asia and even in the Western hemisphere.

Consequently, our internal security concerns have also spread to cover myriad issues and, today, it would just not do to merely focus on the threats to physical security. Internal security management is now required to be viewed holistically and, for this reason, it has become essential to provide security in respect of almost all areas and particularly in respect of food, water, energy, nuclear power, economy, environment and ecology, science and technology, cyber security and so on.

For effective internal security management it would also require to be kept in view that our country represents an immense cultural and geographical diversity and the well over one billion of our people comprise multi-religious, multi-lingual and multi-cultural societies in which certain socio-religious practices, traditions and customs are rooted in thousands of years of recorded history.

Further, it needs to be remembered that the free interplay of cultural and religious identities in our vast and unfettered democracy generate disagreements and confrontations, which have the potential of leading to conflicts and large scale disturbances, particularly when anti-national elements join the fray, with or without involvements from across our frontiers. If the unity and integrity of our country is to be preserved it would be necessary to ensure security on all fronts and, besides, promote tolerance and communal harmony among our people.

Current and expanding threats

For appreciating the scale and complexity of our national security concerns it would be useful to keep in mind that India is a large country with land borders of over 15,000 kms, a coast line of over 7,500 kms, over 600 Island territories and an Exclusive Economic Zone of over 25 lakh sq kms. We also cannot afford to forget, even momentarily, that the internal situations obtaining in most of the countries in our immediate neighbourhood are generating serious threats to our national security.

While it may not be meaningful to recount the varied security threats which we have faced since Independence it could be said that, briefly, the more worrying internal security threats which our country is encountering today relate to the continuing proxy war in Jammu and Kashmir; Jehadi terrorism which has continued to grow both in its reach and spread; Left-Wing Extremism and the still active insurgencies in the North-East States.

After its successful foray in Punjab about three decades ago, in end 1989 Pakistan launched a proxy war in Jammu and Kashmir which is still continuing. In the past decades, Pakistan’s Inter -Services Intelligence (ISI) agency has continued to expand its terrorist activities across the length and breadth of the country. Besides, Pakistan terrorist cells have also been operating from bases in the Middle East and from the soil of at least two of our neighbours.

The activities of Pakistan based Jihadi groups have resulted in the security environment in the vast hinterland of our country continuing to remain threatened for the past many years now. A relatively more recent phenomenon, which is no less worrying than the importation of terrorism, is the birth of a number of radical counter groups which have been aggressively organising to retaliate against terrorist violence unleashed by the Jihadi networks. The emergence of such radical groups carries the grave danger of promoting hate politics and divisive ideologies which could lead to large scale communal violence and pose a most serious threat to our secular fabric, and even to our democratic framework.

The alarming activities of the Indian Mujahideen, which were first heard of in late 2007, have also been spreading. Investigation agencies have revealed that this group has been operating in India with the active support of an underworld network in Karachi, which works in collaboration with Pakistan-based Jihadi groups. The cadres of this outfit have the resources and capability of perpetrating serious violent incidents in various parts of the country.

ISI and Maoists

Besides providing ideological support, training, weapons, communication systems, funding and other required logistical support to the terror groups, the ISI, notwithstanding the foreign policy statements made by the Pakistan Government from time to time, has been continuing with its activities to enable cross-border infiltrations for intensifying violent activities in Jammu and Kashmir. Pakistan is continuing its proxy war in J&K.

According to certain recent reports, the ISI has also stepped up its activities to revive Sikh militancy in Punjab by providing financial and logistical support to establish terror modules from among militants in the Sikh diaspora. It is also reported that the ISI has been pressurising various Sikh militant groups to arrive at operational understandings with each other and, besides, to join up with the Kashmir-centric militant outfits. The armed struggle being carried out by the Left Wing extremist groups, aimed at capturing political power, has emerged as perhaps the foremost internal security challenge to the country.

Of the various elements which subscribe to violence, the CPI (Maoist) is the largest group which has been responsible for the rather significant increase in incidents of violence since 2007. The year 2010 witnessed a sharp increase in violence caused by the Maoists in Chhattisgarh and West Bengal and a visible enhancement in the activities of this group in Bihar, Andhra Pradesh and Maharashtra. The incident at Dantewada, which resulted in the killing of 76 CRPF personnel, was the largest-ever Maoist strike against the security forces. There are reports that the ISI is striving to establish a linkage with the CPI (Maoist) group and the latter are trying to establish a nexus with the insurgent groups in the North-East region.

In so far as the activities of the various insurgent groups active in the North-East region are concerned, recent reports suggest that the number of incidents and the levels of violence have somewhat declined in the recent past, consequent to the Centre’s initiatives to engage the warring groups in peace talks, some of which have been progressing well.

Serious public disorders have also been caused by varied other developments and the past year witnessed highly disruptive agitations in several parts of the country. Among these were the pro-Telengana agitation in Andhra Pradesh, the United Naga Council economic blockade in Manipur and the pro-Gujjar agitation in Rajasthan. All these agitations adversely affected the maintenance of peace and public order.

To be concluded

[darshhan]

Part 2 by Mr.N.N.Vohra

States ill equipped to handle terror

Having briefly commented on some of the more worrying threats to internal security yesterday, it would be useful to examine whether the existing security management apparatus in the country has the capacity of meeting the existing and emerging threats to national security. The pattern on which the security management machinery has been established in our country over the past six decades has been essentially determined by the Constitutional responsibilities of the Union and the States, respectively, in regard to this important arena of governance.

Thus, as per the provisions in our Constitution, while the Union has the overall responsibility, there is no doubt that the States are required to play an important role in the maintenance of national security.

The Constitution prescribes that the Union shall be responsible for the defence of India; the control and deployment of the armed forces of the Union; and protecting the States against external aggression and internal disturbances. Correspondingly, it is prescribed that the States shall be responsible for the maintenance of Public Order and Police. Criminal Law, Criminal Procedure and Administration of Justice are listed among the subjects in which the Union and the States have concurrent jurisdictions.

It may be noted that while the subject of ‘security’ under Article 352 and under the Emergency Provisions in Part XVIII of the Constitution has been assigned to the Union, the term ‘national security’ does not find any mention in the Constitution. It would appear that the founding fathers of our Constitution had not envisioned that the country would be so soon and so seriously threatened by proxy wars, terrorist attacks and varied new forms of criminality and it is perhaps for this reason that it was not considered necessary to define the limits beyond which ‘public disorder’ would graduate to an ‘internal disturbance’.

And, possibly, it is again for the same reason that the Constitution does not prescribe the stage at which the Central Government would require to take over and become responsible for dealing with an internal disturbance in any State.

In so far as the Union’s duty to protect the States against war and external aggression is concerned no issues have ever arisen, from the 1947-48 Indo-Pak war onwards, about the Central Government’s role in the matter. However, in so far as the Union’s duty to protect the States against internal disturbances is concerned, issues have been raised, time and again, about the Central Government’s jurisdiction, as happened in 2008 when serious communal disturbances took place in Orissa.

The Constitution provides exclusive powers to the States to make all required laws in regard to Police and Public Order and to take all necessary executive decisions in respect of both these subjects. However, if one looks back on the law and order related developments in the past six decades it would be difficult to say that all the States have been adequately discharging their constitutional duty of maintaining internal security within their realms.

Track record of states

Taking an across-the-board view, it could be said that, since 1950, most of the States have not been able to effectively maintain internal security within their jurisdictions. While the reasons for the failure would vary from State to State, and from time to time, it could be said that, over all, recurring defaults have taken place for want of the requisite political will and the consequential failure of the States to maintain civil and armed police forces of high professional standard in adequate strength; and to timely put to use whatever forces were available, to deal with an arising situation.

As if these failures were not enough, the successive governments in the States, irrespective of their political complexion, have also been guilty of politicising the entire hierarchy of the constabularies which have been, on many occasions, deterred from enforcing the law and even misused for carrying out unlawful behests. The aforesaid factors have, over the years, resulted in eroding the discipline, integrity, morale and professionalism of the State Police Forces.

On their part, the States have been attributing their failures to the paucity of resources. They have also been advancing the specious argument that it is essentially the responsibility of the Union to provide them the required funds. In this context, the States have found it convenient to support their case by citing Article 355 under which it is the constitutional duty of the Union to protect the States against internal disturbances.

Union Government’s dilemma

Considering the pattern along which the Union-State relations have evolved in the past decades it has not so far been possible to clearly lay down the responsibility of the States to maintain internal security. The general tendency has been to avoid any confrontation with the States which could possibly precipitate a constitutional crisis. Not having been able to critically question the States about the causes of a given disturbance, the Union has been assisting the States, virtually whenever called upon to do so, by deploying Central Police Forces to restore normalcy in the disturbed area. The Union has also been providing, on a progressively increasing scale, financial and logistical support to the States for enlarging and modernising their police forces.

It is relevant to note that notwithstanding its constitutional duty to protect the States against internal disturbances the Union has not so far been able to establish its right to suo motu deploy Central Police Forces for pre-empting an arising disturbance in any State, and not even for protecting the Union’s properties located in the States. The failures which led to the demolition of the Babri Masjid, and the grave consequences of this event for the entire nation, are still far too fresh in our memories to call for any retelling.

The Union has also been hesitant in issuing ‘directions’ to the States, under Article 256, for dealing with an arising disturbance. The general approach which has evolved over the years is for the Union Ministry of Home Affairs to merely issue ‘advisories’ to the States in regard to the management of an emerging disorder. Resultantly, in the past years, colossal human, economic and other losses have been incurred on account of varied serious internal disturbances in different parts of the country.

In this context, there should be no basis whatsoever for losing any more time in making the States understand and fully accept the Union’s responsibility to maintain national security. In this regard, the States shall also need to accept their responsibility to act in close cooperation with each other and provide prompt support to the concerned agencies of the Central Government for ensuring effective security maintenance on all fronts.

Once the aforesaid position has been clearly accepted by the States, it would be necessary to undertake a critical assessment of the existing security management systems and structures which are operated by the State and Central Governments. And after such a review has been completed, the entire security management apparatus, across the country, would need to be reorganised and re-oriented to clearly define the role, authority and responsibility of every element within the nation-wide machinery.

Posturing by states

If the aforesaid approach is to be implemented within a practical time frame, it shall be necessary for the States to forthwith withdraw from their position that as ‘Police’ and ‘Public Order’ are within their domain it would not be constitutionally correct for the Centre to interfere or question the manner in which the States deal with the management of internal security issues. Instead, the States would need to forthwith give up their traditional postures and accept their high responsibility of ensuring effective internal security management by working in close coordination with the security establishments of other States and in complete concert with all concerned agencies of the Central Government.

If the States accept their responsibility to effectively maintain internal security within their areas, the State Governments shall need to devote high priority attention for enlarging and upgrading their security administration machineries.

As the very first step, the States will need to provide adequate budgetary support, on a sustained basis, for the enlargement and functional improvement of their civil and armed Police Forces. In this context, it would be relevant to note that in 2009-10 the allocation for Police was a mere 4.3 per cent of the total budgeted expenditure of all the States and Union Territories.

As about eighty per cent of the annual Police budgets in the States goes toward the payment of salaries and pensions of the constabulary, very little is left for the progressive enlargement and modernization of the Police Forces. One of the consequences of the aforesaid situation is that nearly four lakh of the sanctioned posts in the States and Union Territory Police Forces were lying vacant at the end of 2009. In other words, about one fifth of the total sanctioned posts were lying unfilled all over the country. Needless to stress, the most urgent steps are required to be taken to make the State Police organisations adequately strong and capable if they are to serve as reliable instruments for effectively managing internal security.

To be concluded

[darshhan]

Part 3 by Mr.N.N.Vohra

WHAT THE STATES CAN AND MUST DO

Besides losing no further time in enlarging and upgrading the State Police Forces, there must also be no further delay in carrying through the very long awaited Police Reforms.

In this context it may not be out of place to recall that, for the past several decades, the States have failed to accept the Union Home Ministry’s repeated exhortations regarding the crucial need for implementing Police Reforms.

It is a matter for both shame and grave concern that after over six decades since Independence, almost all the State Police Organisations function within a law which was enacted by our colonial masters a century and a half ago!

Most States have also not so far implemented the Supreme Court’s directions for carrying out fundamental reforms in regard to the functioning of the Police. In the Chief Minister’s Conference on Internal Security held in 2010, it was disclosed that 22 States have not yet enacted a new Police Act; 19 States have yet to set up Police Complaints Authorities; 24 States have not yet established State Security Commissions; most States have not yet segregated the ‘law and order’ and ‘investigation’ functions, nor set up separate Intelligence and Anti-Terrorist wings.

It also needs being noted that internal security cannot be effectively managed unless the entire framework of the Criminal Justice system functions with speed, fairness and transparent honesty. As per recent reports, over two crore criminal cases were awaiting trial and an equal number of crimes were pending investigation. This situation, alongside progressively declining conviction rates, has rightly contributed to the public perception that crime is ‘a low risk, high profit business’.

l No further debate is required to conclude that terrorism related crimes cannot be dealt with by the security management apparatus which presently obtains in our country. It is also clear that no more time is available for continuing negotiations with the States to bring them around.

Besides the enormous logistical inadequacies which mar the functioning of the justice delivery system, the integrity of the subordinate judiciary has become increasingly disreputable and, recently, serious allegations have been raised against even those who man the highest echelons in the judicial system, up to the august level of the Chief Justice of India. It is unnecessary to debate that the most urgent steps need to be taken to enforce judicial standards and accountability, clean up the entire justice administration apparatus and enlarge and strengthen it adequately to deliver speedy and effective justice.

Another cause for serious concern is that while we continue to live with a good number of outdated laws, many of which were enacted during the colonial period or in the early years of our Independence, we still do not have an adequately comprehensive law, applicable to the entire country, which can effectively meet the requirements of dealing with terrorist offences, cyber crimes, and the speedily growing criminality which poses a grave threat to the very unity and integrity of our country.

Economic offences & corruption

It is necessary that a well considered law, enforceable in the entire country, is enacted on the most urgent basis. We also need a comprehensive law for dealing with serious economic offences which, if not prevented, controlled and firmly dealt with deterrent steps, would have the potential of suddenly disrupting the entire national economy.

It also needs to be kept in view that varied threats to national security originate from corruption in the administrative system. In the past years several major scams and scandals have been brought to light. As per the Corruption Index, recently released by Transparency International, India’s position has further declined since 2009 and now stands at number 87 in a list of 178 countries. Corruption retards progress and breeds delay, inefficiency and unaccountability in the governmental machinery. A corrupt administration generates frustration, anger and disgust among the people, paving the way for their alienation and attraction to extremist ideologies.

Further, the corrupt elements in the governance systems, who enjoy close linkages with known criminal and anti-national elements, have the opportunity of sabotaging and subverting the highest national interests from within the establishments in which they are entrenched. The Centre and the States need to consider the most urgent and ruthless measures for eliminating corruption at all levels, starting from the top-most echelons in all arenas of functioning, including the judicial system.

As regards the subversion of security interests from within the governmental systems it may not be out of place to recall that, after the Mumbai serial blasts in March 1993, the Central Government had set up an inter-Ministerial Committee (chaired by the Union Home Secretary) to ascertain, inter alia, how the Dawood Ibrahim criminal gang had succeeded in bringing several tons of RDX into Mumbai city to carry out the bombings. This Committee had concluded (referred to as the ‘Vohra Committee Report’ or the ‘Criminal Nexus Report’) that criminal activities can be carried out virtually unfettered because of the existence, in several parts of India, of an unwholesome nexus between corrupt politicians, dishonest public servants and organised crime/mafia gangs.

It would be beneficial to urgently review and determine whether adequate follow-up action was taken in furtherance of the conclusion arrived at by this Committee and, if not, what more needs to be done. In my opinion the said criminal nexus, which has very significantly spread in its scale and strength since 1993, is the source of grave threats to national security.

Trained manpower

Another area of serious concern relates to the lack of adequately trained and experienced functionaries who could be suitably deployed to man the nation-wide security administration apparatus. For meeting this objective it shall be necessary, in the first instance, to raise a cadre of functionaries who have been especially trained for operating the agencies of the Central security apparatus all over the country.

So far, only the Intelligence Bureau in the Union Home Ministry has a cadre of deputationist Indian Police Service officers who comprise the core cadre of the Bureau and are thus enabled to spend their entire careers in this agency, other things being equal. The external intelligence agency, R&AW, which has been in existence for over four decades now, has been facing serious personnel-related problems for having failed to develop a trained and trustworthy cadre.

It is a matter for serious concern that despite the grave threats to the country in the past years, it has still to be accepted that the effective management of national security cannot be entrusted to persons who do not have adequate training, experience and the aptitude for working in this important arena.

It is, therefore, necessary that the highest priority is accorded to raising a pool of adequately trained, experienced and trustworthy functionaries, who can be assigned to man the posts in the entire security management apparatus, all over the country.

In this context I had proposed (Report of the Government of India Task Force on Internal Security; September 2000) a broad framework for raising a pool of trained officers for manning the Central Government’s security administration machinery. The Group of Ministers (GoM), chaired by the Union Home Minister, had approved the approach recommended by me. This was in early 2001. Nearly a decade has since elapsed and the GoM’s decision has still to be implemented. It is evident that this matter is not considered important enough to merit any attention.

I would conclude by reiterating the following aspects:

l India faces serious security threats from numerous sources, from within the country and across its frontiers.

l The States have not displayed the requisite political commitment to devote the required attention to effectively manage Internal Security. Consequently, the State Police Forces have limited demonstrated capacity to deal with serious Internal Security situations on their own.

l Within the Union-States understandings, which have so far evolved in the arena of national security management, the Central Government does not have the authority to suo motu deploy Central Police Forces to timely deal with an emerging disorder in any State, notwithstanding the Union’s duty to protect the States against internal disturbances.

l The Union also does not have the authority to take cognizance and immediately proceed to investigate even a terrorist crime, or a major criminal offence with nation-wide ramifications, without following the prescribed consultative procedures. The inherent delay in operating within such a system is bound to result in the failure of investigations, considering the speed and accuracy with which the mafia and terror groups strike.

l For the past many years now, successive governments at the Centre have been holding consultations with the CMs of States for securing agreement about the necessity to establish a Federal/Central agency which has the authority to suo motu take up investigation of federal offences/major crimes which have inter-state ramifications and grave implications for National Security. The requisite understanding on this crucial issue has not so far emerged. However, in the wake of the 26/11 attack at Mumbai, a National Investigation Agency (NIA) was established after Parliament hurriedly passed the NIA Act in end 2008. The NIA has the authority to investigate and prosecute certain specified offences which affect National Security. The experience so far has shown that the State Police authorities take their own time in handing over to the NIA even major crime cases which may have inter-State ramifications.

l Many offences, including major IPC crimes, which could be directly linked to terrorist activities, have not been brought under the NIA’s jurisdiction. The NIA, as presently constituted, does not have the authority to preempt or prevent a terror crime, even in coordination with the concerned States.

No time to negotiate with states

In my view, no further debate is required to conclude that terrorism related crimes cannot be dealt with by the security management apparatus which presently obtains in our country. It is also clear that no more time is available for continuing negotiations with the States to bring them around. The required legal and institutional arrangements need to be put in place on the most urgent basis for establishing a duly empowered umbrella national agency for the effective management of National Security, in close coordination with the States.

Equally important, the States would need to be suitably assisted and empowered to take over larger responsibilities so that they become progressively capable of satisfactorily managing Internal Security situations of varied kinds on their own or in collaboration with the neighbouring States.

If the required Union- States agreements cannot be arrived at without further loss of time, the Union would need to seriously consider bringing about the required amendments to the Constitution of India or carrying through a supporting legislation under Article 355 to empower itself to effectively discharge its responsibility for managing National Security with the close cooperation of the States.

I would conclude by saying that all political parties, irrespective of their ideologies and differences, must urgently close ranks and unanimously agree to take all required decisions which shall ensure that the country’s integrity and security is protected and safeguarded under all circumstances.

Concluded

[darshhan]

Part 4 by Mr.Shankar Sen

An idea whose time has come

The decision of the Central government to operationalise the ambitious National Counter Terrorism Centre (NCTC) from 1st March, 2012 sparked off protests from the Chief Ministers of a number of non-Congress States.

Chief Ministers like Naveen Patnaik, Jayalalithaa, Mamata Banerjee and Narendra Modi criticised the powers given to the NCTC as an assault on the federal structure of the Constitution.

Indeed, the issue has turned into a full-blown controversy between the Centre and the non-Congress State governments. In view of stiff opposition from the non-congress Chief Ministers, the central government was forced to put off indefinitely the operationalisation of the NCTC.

A pet project of the Home Minister P. Chidambaram, NCTC got approval from the Cabinet committee on security (CCS) in January 2012. The draft of the NCTC was sent to the PMO as early as 2010 but, there was opposition to the setting up of such a powerful body from different quarters. It was kept pending in PMO for a long time. The present NCTC is a compromise reached after prolonged inter-departmental meetings and consultations.

Powers & provisions
The NCTC is now to be located in the Intelligence Bureau and headed by a Director who will be an officer in the rank of Additional Director, IB. It will have three units – gathering intelligence, analysis of intelligence and carrying out of operations. Each will be headed by a Joint Director of the IB. Appointment of the Director and the three Joint Directors has also now been put on hold in the wake of the controversy.

According to the official order, NCTC will integrate Intelligence pertaining to terrorism, analyse it, pursue or mandate other agencies to follow up the leads and coordinate with existing agencies for effective response. It will further maintain a comprehensive data base of terrorists and their associates and of all information pertaining to them. It will prepare threat assessment reviews and disseminate them at appropriate levels of Central and State governments. It will be a single window organisation that will gather and disseminate Intelligence to Central and State security organisations.

The operational wing of the NCTC can arrest and search any suspect under Unlawful Activities (Prevention) Act, 1967. It will have a Standing Council, which will comprise heads of anti-terror organisations of the States.

Apprehension
Opposition of the non-Congress governments stems from the fear that NCTC may be used to undermine their authority. They fear that empowering NCTC with Section 43(a) of Unlawful Activities (Prevention) Act, 1967 would infringe on powers of the States.

Under the Section on receiving information about terrorist threats or “design of the terrorists to commit an offence”, NCTC can launch operations without the consent of the State governments. Under this Section, “personal knowledge or information given by a person” can be the basis for launching such operations.Further, NCTC will have powers to requisition the services of NSG or any other special force for undertaking counter-terrorist operations.

26/11, an eye-opener
However, need for a powerful and effective NCTC cannot be overstressed. It is indeed an excellent idea. The Mumbai carnage revealed the appalling lack of coordination among different security and Intelligence agencies. 26/11 revealed serious gaps in our system of collection and dissemination of Intelligence. Flow of preventive intelligence and follow up action even on the limited available intelligence was totally unsatisfactory.

It was a case, as a security expert aptly put it, in which every individual and agency had all the materials to defend itself but, collectively little to defend the nation.

US security officials in their testimonies to the Senate Committee have said that India’s response to Mumbai terrorist attack was hamstrung by lack of coordination among the different levels of the government and due to local police’s inadequate training and lack of powerful weapons. Fears of similar vicious attacks in future cannot be ruled out.

The US think-tank Rand Corporation, in its report has warned of similar attacks in future. The report said that India is likely to remain a target of Pakistan based terrorist attacks because, among other things, of its inability to compel Pakistan to dismantle its terrorist infrastructure.

NCTC in the US
After the Kargil war, the government established a multi-agency centre as recommended by G.C. Saxena Committee. But the concept could not be implemented properly and MAC ended up becoming another office of the Intelligence Bureau. Chidambaram got the idea of NCTC from USA.

But NCTC in USA does not conduct counter-terrorist operations. This is the responsibility of Homeland Security. In USA, NCTC integrates all foreign and domestic Intelligence analyses to produce detailed assessments designed to support senior policy makers, law enforcement agencies, Homeland Security and other groups.

But in US, NCTC is a legal institution set up under Congressional Legislation after bi-partisan consultations. But it has no powers to act on its own in matters such as arrest, detention, interrogation, searches etc. Its official fact-sheet says that the organisation, “does not direct operations or collect Intelligence, it is the primary organisation in the US government for analysing and integrating all Intelligence pertaining to terrorism”.

Again, NCTC in USA is an independent institution because it was felt that an independent body would be able to take an objective view of the counter-terrorist operations and bring about better coordination in the functioning of the different Intelligence agencies and ensure their proper coordination.

In UK also, the Joint Terrorism Analysis Centre (JTAC) analyses intelligence culled from different quarters while anti-terrorist operations are carried out by a Regional Counter-Terrorism Command and local police.

IB should be kept out
In India, NCTC has been made a wing of the IB and will act under the DIB. Here lies the rub. IB is a clandestine Intelligence organisation. Opposition parties have good reasons to fear that somehow or the other, it can be used against them. There will be allegations of misuse of the NCTC for harassing political opponents.

There is also another inherent danger in this arrangement. Arrests made by NCTC, a wing of IB, will be challenged in the courts of law. IB and NCTC will be preoccupied in defending arrests before courts of law and also allegations of violation of human rights. This will definitely affect IB’s efficient functioning.

Idea whose time has come
In India, ravaged by terrorist strikes and violence, the need for a powerful NCTC cannot be overstressed. It is a terrific idea whose time has come. Terrorist threats of various forms require a comprehensive response. Different modus operandi of the terrorist groups, random nature of their attacks and absence of discernible standard operating procedures (SOPS) make it difficult to provide reliable advance warning about terrorist attacks. Even the limited intelligence which is available is not analysed and disseminated because of gaps in the counter-terrorism architecture.

Further, Intelligence apparatuses in most of the States are in a bad shape. They are packed with people who have been picked up on considerations other than competence. There is substance in the complaint that they are often utilised for political surveillance and collection of Intelligence about inter-party and intra-party problems.

The State Chief Ministers, who are assailing the NCTC, should not however forget that the State governments depend pathetically on the Centre for containing even minor law and order problems. State police chiefs at the drop of a hat, seek the help of central para-military forces to deal with situations arising out of various bundhs and agitations. Again, under article 355 of the Constitution it is the responsibility of the central government to protect States from external aggression and internal disturbances.

State Chief Ministers’ objections against giving police powers to the NCTC are possibly valid but the need for a strong NCTC with a comprehensive reach is also of crucial importance. It has a pivotal role to play in collection and dissemination of Intelligence for combating terrorism.

The Union Home Minister, in his letter to the Chief Ministers, has maintained that powers conferred on NCTC under Section 43(a) of Unlawful Activities (Prevention) Act must be read with duties under 43(b) of the Act, to produce the person arrested or article seized without unnecessary delay to the officer-in-charge of the nearest police station (which will be under the state government) and the concerned Station House Officer would take further action in accordance with the provisions of CrPC. He feels that these “bare minimum powers” are necessary for successful counter-terrorist operations.

But this is unlikely to assuage the concerns of the State Chief Ministers. It is, therefore, necessary for the Home Minister to revisit the proposed NCTC architecture in consultation with the State Chief Ministers and other political parties. In this context, the Union Home Secretary’s meeting with the Directors General of Police and Chief Secretaries of States is unlikely to serve the purpose.

The writer, presently a Senior Fellow at the Institute of Social Sciences, was Director, National Police Academy at Hyderabad and the first Director General of the National Human Rights Commission. He is a retired IPS officer from the Odisha cadre.

[darshhan]

Part 5 by Shri B.Raman

Inadequate consultation is the bane

Consensus on an effective architecture to deal with terror has proved elusive over the past two decades. Mistrust between different agencies, and not just between the Union and the States, has dogged the issue

India has been facing the evil of terrorism since 1971 when two members of the Jammu & Kashmir Liberation Front (JKLF) hijacked an Indian Airlines plane to Lahore and set it on fire after asking the passengers and crew to leave the plane.

Except in J&K and the North-East, where the Army had to be asked to take over the leadership of counter-terrorism and counter-insurgency operations, in the rest of the country, the responsibility for dealing with terrorism vested with the State Police. In Punjab, it was the Police under the able leadership of K.P.S.Gill, the Director-General of Police, that effectively brought the so-called Khalistani terrorism under control.

In Tamil Nadu, it was again the Police that brought the activities of the so-called Al Umma, a local terrorist organisation, under control. The police also dealt with the activities of the Liberation Tigers of Tamil Eelam (LTTE).

In Mumbai, the successful investigation of the 1993 serial blasts was carried out by the police. Thus between 1971 and 1993, the police forces in different States were able to deal effectively with terrorism with the help of intelligence inputs and guidance, where necessary, from the central intelligence agencies.

The infiltration of the Lashkar-e-Toiba (LET) and other Pakistani terrorist organisations into India — first into J&K and subsequently into other States of India — from 1993 onwards gave a new pan-Indian dimension to the evil of terrorism and made Indian counter-terrorism experts realise that the police alone, however capable, would not be able to deal with the jihadi octopus of Pakistani origin. The problem was aggravated by the emergence of the so-called Indian Mujahideen in 2007.

NEW ARCHITECTURE

The need for a pan-Indian counter-terrorism doctrine and architecture was increasingly felt in the post-1993 years, but unfortunately no action has been taken to evolve such a doctrine and architecture. Despite terrorism of the jihadi kind, originating from Pakistan, assuming a pan-Indian and global dimension, we continued to deal with it in an ad hoc manner with the help of the police in different States.

The Task Force for the Revamping of the Intelligence Apparatus, headed by G.C. Saxena, former chief of the R&AW, which was set up by the Atal Behari Vajpayee Government in 2000, drew attention to our failure to address the problem of pan-Indian terrorism in a professional manner and suggested the creation of a Counter-Terrorism Centre (CTC) in the Intelligence Bureau to deal with terrorism in a coordinated manner.

The CTC suggested by it was patterned after the CTC of the USA's Central Intelligence Agency (CIA), which was then responsible for counter-terrorism in the US, since the terrorist threats to the US before 9/11 mainly emanated from abroad and were largely directed at US nationals and interests abroad. Since terrorism in India — whether regional or pan-Indian-was largely directed at homeland targets, the Saxena Task Force, of which I was a member, suggested that the proposed CTC should be part of the Intelligence Bureau and should work under the direction of the Director, Intelligence Bureau (DIB).

The CTC, as proposed by the Saxena Task Force, was essentially a preventive architecture responsible for introducing the principle of jointness in preventing terrorism. Jointness meant counter-terrorism experts from different agencies of the Government of India working together under the leadership of the DIB for analysing and assessing the intelligence collected by different agencies and the Police and giving directions for follow-up action.

The idea was that the follow-up action would still be taken by the State Police, but on the guidance and directions of the CTC, which was not given any executive powers of its own. The Vajpayee Government set up the CTC in the IB, but named it the Multi-Agency Centre (MAC). Since it was not given any executive powers to act independently on its own in the jurisdiction of the State Police, there was no objection to its creation from the States.

NATIONAL & INTERNAL SECURITY

Before his death in January 2002, R.N.Kao, the founding father of the R&AW, met Vajpayee and told him that without the co-operation of the State Police, the Government of India would not be able to deal with terrorism effectively. He also expressed the view that the National Security Adviser, being an officer of the Indian Foreign Service, with no exposure to the State Police, would not be able to command the required co-operation from the State Police. He, therefore, suggested the creation of a post of Deputy NSA to be manned by a senior officer of the Indian Police Service either from the States or the IB.

Kao told me that Vajpayee reacted positively to his advice and said that he would initiate action for the creation of a post of Dy NSA to be manned by a police officer, who was an expert in internal security and who commanded the confidence of the State Police. By the time this post came into being, Kao passed away. When this post was created, it was filled up by another IFS officer, who was an unknown quantity in the States and who had very little expertise in internal security matters.

The 9/11 terrorist strikes in the US Homeland brought out inadequacies in the functioning of the CTC of the CIA. It was decided by the George Bush Administration in 2004 to set up an independent organisation called the National Counter-Terrorism Centre (NCTC) for ensuring jointmanship in dealing with terrorism and place it under the Director, National Intelligence. It also modified the counter-terrorism architecture in the US by creating a Homeland Security Council, which was distinct from the NSC, and placing it under a Homeland Security Adviser, distinct from the NSA.

When the Dr.Manmohan Singh Government came to office in 2004, it created a separate post of Internal Security Adviser on the pattern of the USA's Homeland Security Adviser and made him exercise leadership in all internal security matters, including counter-terrorism. M.K.Narayanan, former DIB, was appointed to this post.

In 2005, after the death of J.N Dixit, the then National Security Adviser, Narayanan was designated as the NSA and asked to perform both the tasks of co-ordinating external and internal security duties. He was not able to devote adequate attention to internal security matters because of his preoccupation with the negotiation with the US on civil nuclear co-operation.

Internal Security Management in the Centre consequently suffered. The progress in the implementation of the Saxena Task Force's recommendation on counter-terrorism was slow and no attempt was made to draw up a co-ordinated Counter-Terrorism Doctrine and revamp our counter-terrorism architecture.

The result: The 26/11 terrorist strikes, which dramatically exposed the poor state of our preventive architecture. There was no co-ordinated follow-up action even on the limited intelligence that reportedly came from the US through the R&AW regarding the plans of the LET to launch sea-borne terrorist strikes in Mumbai.

Chidambaram's plan

After taking over as the Home Minister post-26/11, Chidambaram, who has assumed total responsibility for counter-terrorism management, has sought to revamp the counter-terrorism architecture. He initiated in particular four steps.

Firstly, he decentralised the deployment of the National Security Guards and created the National Investigation Agency (NIA) to improve our investigation capabilities. Secondly, he instituted a system of daily meetings of the intelligence chiefs under his chairmanship to discuss the available intelligence and assess the evolving threats. Thirdly, he speeded up the implementation of the Saxena Task Force recommendation for the Multi-Agency Centre, which had gone into doldrums under ShivRaj Patil, his predecessor. And fourthly, after a visit to the US, he decided to set up an NCTC partly — not totally — on the pattern of the USA's counterpart.

While his first three steps did not meet with any opposition from the States, his attempt to create the NCTC has met with serious opposition because of his decision to keep it as part of the IB and give it independent executive powers of arrest and searches without the prior knowledge of the State Police.

His idea probably was that to meet situations where a State Police dragged its feet for making an arrest, the NCTC should have its own powers of arrest so that it could make an arrest, produce the suspect before the Police and direct it to act against him.

This was a major encroachment on the powers of the State Police and without the prior concurrence of the States.

In his NCTC architecture, Chidambaram has made two significant departures from existing practices in countries such as the US. Instead of making the NCTC an independent institution, he has made it a part of the IB. By giving the NCTC independent powers of arrest, he has violated the widely held principle in other democracies that a clandestine intelligence agency should not have police powers of arrest, which could be misused for political purposes.

His failure to consult the States beforehand and his attempt to confront the States with a fait accompli, which would have definitely infringed on their rights, have created so much opposition that the very principle of jointmanship in preventing terrorism through a body like the NCTC, now stands suspected as a politicised measure to circumvent the States.

Apparently, there were inadequate consultations even at the Centre as one could see from the opposition expressed by an increasing number of ex-R&AW officers to the move to make the NCTC a part of the IB. The controversy has not only become a Centre vs State issue, but is also threatening to become an IB vs R&AW issue.

At a time when there is an urgent need for unity of action against terrorism, creation of a preventive architecture against terrorism has become a highly contentious and politicised issue. While one has to welcome Chidambaram's decision to postpone the implementation till belated consultations are held with the States, it is doubtful whether the opposition-ruled States, whose suspicions have been aroused, will now agree to the creation of the NCTC at all even if it is not given executive powers. The whole concept, which is necessary, has become suspect in their eyes. It is very unfortunate.

There is no hurry to create the NCTC now. The MAC could continue to handle the tasks of follow-up action on the intelligence collected and prevention. The States have not objected to the MAC and have got used to it. Instead, Chidambaram should focus on revamping the counter-terrorism architecture by making the NCTC an independent institution, without executive powers working under the direction of the DIB, who could wear two hats as the head of the IB and of the NCTC.

The NCTC could work under the DIB but without becoming a part of the IB. It would be similar to the R&AW and the Directorate-General of Security, which are independent institutions working under Secretary (R), who wears two hats.

In his address to IB officers in 2010, Chidambaram had suggested the creation of a Ministry of Internal Security to focus exclusively on the operational aspects of Internal Security Management. There has been no follow-up on this since then.

The time has come to consider this proposal as part of the over-all revamping. None of these ideas would work unless he manages to reach a political consensus with other political parties and the States. Prior consultations with the States should be sincere and serious and not just a gimmick.

The writer is former Additional Secretary, R&AW, Cabinet Secretariat

[darshhan]

Part 6 by Shri Prakash Singh

Grey Areas need to be addressed

It is wrong in principle to vest the Intelligence Bureau with powers of arrest. The NCTC can function without such powers, which, if vested, would always arouse suspicion and would be liable to be misused

India has been battling against terrorism of one hue or the other ever since the mid-fifties, when Phizo raised the banner of revolt in the Naga Hills. The battle has unfortunately been fought in an ad hoc manner. The attack on Mumbai on 26/11 eventually shook off the inertia of the country and marked the beginning of a new phase, characterised by a comprehensive response to the challenge of terrorism.

The Union Home Minister P. Chidambaram, with all the controversies he finds himself surrounded with, deserves full credit for trying to raise a counter-terrorism architecture. The National Investigation Agency (NIA) was set up. NSG hubs were established in Hyderabad, Kolkata, Mumbai and Chennai. Anti-terrorism and Counter-insurgency Schools were set up in some states. Coastal security was beefed up. The states were asked to strengthen their police infra-structure, etc.

In December 2009, while addressing a conference of the Intelligence Bureau, the Home Minister for the first time spelled out the need to have an over-arching National Counter Terrorism Centre. Its charter would include “preventing a terrorist attack, containing a terrorist attack should one take place, and responding to a terrorist attack by inflicting pain upon the perpetrators”.

Power to arrest, search & seizure

It was an ambitious scheme, which encountered opposition from other security related departments. After prolonged consultations, the outlines of the scheme were finally revealed through an executive order on February 3. The NCTC would function as a wing of the Intelligence Bureau and its functions would not be limited to collecting, coordinating and disseminating intelligence about the activities of terrorists but also include the powers of arrest, search and seizure under the Unlawful Activities (Prevention) Act. In other words, the Intelligence Bureau would be vested with police powers, albeit through the NCTC.

Chidambaram has drawn inspiration from the US National Counter Terrorism Centre which was established by a Presidential Executive Order in August 2004 and codified by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). It was meant to lead the “nation’s effort to combat terrorism at home and abroad by analysing the threat, sharing that information with our partners, and integrating all instruments of national power to ensure unity of effort”. It was placed under the Director of National Intelligence but was not given any power of arrest, interrogation or investigation. The Indian version of the NCTC obviously goes beyond the US model.

Howsoever laudable Chidambaram’s intentions may have been, he made three grievous mistakes in executing a much needed proposal. Firstly, the states were not consulted on such a sensitive issue affecting centre-state relations, which they should have been. The battle against terrorism can be fought successfully only with the combined efforts of the Centre and the states.

Secondly, the NCTC, both in USA and UK, are independent entities. Making NCTC part of the IB could be a disadvantage in the sense that objectivity would be at a discount and a mistake made by the IB were likely to be replicated by the NCTC. Thirdly, it was wrong in principle to have vested the Intelligence Bureau with powers of arrest and seizure. Intelligence organisations in democratic countries are not given such powers, which are normally associated with totalitarian regimes only. Besides, in the event of the central government getting derailed, as happened during the Emergency in India, these powers could always be misused to harass the political adversaries, branding them as terrorists or their collaborators.

States' objection untenable

The government has now called a meeting of the Chief Secretaries and Directors General of Police of all the states to sort out the thorny issues. Hopefully, there should be a meeting ground. There is absolutely no doubt that the country urgently needs a National Counter Terrorism Centre. It is also necessary that the NCTC should have a comprehensive reach across the length and breadth of the country and that its operations are not hamstrung by a narrow interpretation of the federal principle.

The objection of the states that the proposed NCTC impinges on the federal character of the constitution and that it is an encroachment on their turf is untenable. The ground reality today is that the states depend upon the Centre to discharge even their normal law and order responsibilities. Be it a caste conflict, a communal show down, festival arrangements, or any kind of bandh, the states clamour for central forces to deal with the situation.

They forget then that under the Constitution it is their responsibility to deal with such situations. On the other hand, when the Centre takes an initiative to deal with the problem of terrorism which has inter-state or even trans-national ramifications, the states wake up to what they consider their constitutional rights and resent the Centre’s alleged encroachment in their fiefdom. It has to be understood that dealing with terrorism would necessarily require Centre’s help, involvement and guidance. The states, on their own, just cannot cope with the terrorist threat.

The country must have an NCTC - and it must be a strong body with full authority over sharing, collation and dissemination of all intelligence relating to terrorism. However, the temptation to vest it with police powers must be resisted. Such powers would always arouse suspicion and the temptation to misuse them would always be there. The dialogue with the states should lead to a meaningful compromise. The proposed NCTC should neither be crippled nor made more powerful than is actually necessary for combating terrorism.

(The writer is a former Director General of the Border Security Force, DGP UP and DGP Assam)

[darshhan]

Last Part by Prof Madabhushi Sridhar

States fear the ‘Centre’ more than ‘terrorism’

The Union of India is a symbol of centralised authority. Makers of our Constitution never used the expression ‘federation’ but deliberately called it ‘India that is Bharat, is a union of states’. They preferred to give more powers to the Union, entrusting it with the responsibility of securing the nation from external forces, while provincial states have been granted the exclusive jurisdiction of maintenance of law and order.

India is, however, neither a union of states nor a federation. Constitutional experts call it a quasi-federation. Some other political scientists characterise it as ‘cooperative-federation’ and explained that India is a federation in ordinary times and becomes a Union in an emergency. The question, however, is when is India not in an emergency?

Home is the subject of states and the Center’s ‘Home’ department is expected to deal with inter-state issues and national crime besides coordinating the investigation. Terrorism is an international phenomenon, and creates a war like situation, which in fact invokes the jurisdiction of the Centre to defend the country, though in strict sense it could be classified as a ‘law and order’ problem. It is undoubtedly a national problem warranting a collective and concerted action.

The real question, therefore, is not inadequacy of the ‘mechanism’ but the incapacity to man it. In 2009, the Centre came up with the Multi Agency Center(MAC) to coordinate between different agencies to fight terrorism. It was not opposed by any state or chief minister then.

However, this centre remained just a name without delivering any thing even after its existence for three and a half years. Prior to that, a Group of Ministers in 2001 suggested a Joint Task Force of Intelligence agencies, which was approved by the then Government. When the Centre offers some intelligence and data with advice to act in a particular manner, no state police has ever refused to comply so far.

Another body unnecessary

There are those who argue that another organisation to deal with terror is wholly unnecessary. Our problem is not the deficit of ‘power’ but the deficit of ‘capacities and capabilities’, which is lacking in our counter terrorism actions. What we need is an effective national database on terrorism, which can be shared in real time. Our principal problem lies, not in architecture, but in manpower, materials and execution. We have eviscerated institutions over decades, and now believe that the solution lies in creating layer upon layer of meta institutions to monitor, coordinate and oversee this largely dysfunctional apparatus.

Another point of view is that we do need a separate body for responding immediately and manage the crisis. For example, in the Mumbai attack case, in 2008, state authorities waited for National Security Guards (NSG) teams to do the operation. Vikram Sood, former chief of India’s external intelligence agency, the Research and Analysis Wing, made a relevant point saying that the NCTC should be an independent body with no operational role. It should not have any powers to arrest. It should only be a coordinating body.

The point to be noted is that it was not the lack of such a centre that stopped NSG from countering the terrorist attack on Mumbai, but the lack of the readiness and political will, with required efficacy and capability. The Mumbai attack reflected the facts of slackness, negligence, corruption and unpreparedness to face such attacks, besides a lack of coordination between the forces and within the state police.

What we need is a centralised data which is available at the click of a mouse. We have several agencies to deal with different aspects of the problem separately, but the government appears to use them to employ henchmen and control opponents.

The Centre has often used the extraordinary power under Article 356 of the Constitution to remove the elected governments in states and impose its own rule, weakening the federal characteristic. This is the basis of apprehension of the non-congress Chief Ministers about the contemplated National Counter Terrorism Center.

The opposition is based on the apprehension of political misuse of that power by the Centre. This is a ‘political’ opposition and not a philosophical conflict. More than ‘terrorism’, the states seem to fear the political terror unleashed by the party in power at the centre based on the past experience.

In the era of coalitions, when the Union Government is weak and depends on support from small parties or groups, the federal character is imposed by political necessity.

The opposition from at least thirteen leaders from different parts of the country has forced the Centre to roll back the proposal. The Centre should have more consultations with the States before announcing the formation of this NCTC unilaterally. If distribution of power is a mechanism envisaged in the ‘federal’ constitution, states too must appreciate that securing the country is the main objective of the rule of law.

(The writer is Professor and Head, the Centre for Media Law and Policy NALSAR University of Law, Hyderabad.)

[ramana]

The fundamental problem of police reforms is the fear of unintended consequences in hands of bad politicians. There is a past history. Yet the bureaucrats and commissions recommend more centralised powers which feed the fear. Time after time reforms are stalled or delayed because of this unstated fear. What is needed is fundamental approach to prevent abuse of police powers.

[ramana]

X-post....

Playing safe on terror

March 07, 2012

The assembly poll verdict has underscored the importance of regional political parties in our federal polity. After the poor electoral show by the Congress in UP, Punjab and Goa, state chief ministers will like to test the Manmohan Singh government. The National Counter-Terrorism Centre (NCTC) will probably be the first target.

Set up by an executive office memorandum on February 3 this year, the counter-terrorism body has become the bone of contention between home minister P Chidambaram and state chief ministers belonging to opposition parties at the Centre, with the latter feeling that the NCTC encroaches on their law and order jurisdiction. Chidambaram was virtually asked by the prime minister last month to address their concerns after Odisha chief minister Naveen Patnaik first raised the red flag over foisting the NCTC on states without consulting the stake-holders. With powerful CMs like Narendra Modi, Nitish Kumar, J Jayalalithaa and Parkash Singh Badal jumping on the anti-NCTC bandwagon, Patnaik wants the PM to call a meeting of CMs to resolve the issue.

Forced to fend for himself despite the NCTC being cleared by the Cabinet Committee on Security (CCS), Chidambaram is peeved. The new body naturally flows out of amendments to the 2008 Unlawful Activities Prevention Act created after the 26/11 Mumbai attacks. The 2008 amendments were personally drafted by Chidambaram in consultation with the leader of Opposition in Rajya Sabha Arun Jaitley. The NCTC was proposed as part of the new security architecture on December 23, 2009 and the proposal put up before the CCS in April 2010. Yet it took the CCS nearly two years to clear the NCTC on January 12, 2012.

The Manmohan Singh government should take a deep breath before sitting down to give an all systems go to the NCTC. The reasons are manifold. First, there is disquiet among senior UPA ministers and Congressmen over the NCTC. A Cabinet minister argued that the body would make the home minister the most powerful person in the government. Second, given its nature, structure, objectives and powers, the NCTC will be still-born without the cooperation of the state governments. Can any NCTC team enter Azamgarh or Gorakhpur without the help or knowledge of local police? There would be riots.

Third, there is discomfort within the Intelligence Bureau (IB), as the NCTC could expose the premier agency to courts if equations go awry between the investigators and the local police in case there’s a shoot-out or an unfortunate custodial death. The Batla House encounter on September 19, 2008, against Indian Mujahideen terrorists happened on the basis of IB inputs. Had the NCTC been in existence at that point, the NCTC or IB would have been involved in the shoot-out with the Delhi Police coming into the picture much later, as envisaged in the NCTC law. The thought of being dragged to the court is enough to send shivers down the spine of the IB investigators.

Finally, the public record of even the American NCTC is nothing to write home about. It failed to detect the Nigerian ‘underwear bomber’ Umer Farouk Abdul Mutallab when he boarded the US-bound flight from Amsterdam on December 25, 2009. All this is not to say that the government should not have a cogent and prompt response to tackle terrorist threats. But there is a need for more due diligence on the NCTC. Better to have an institution with firm legal foundations than a half-baked one with the potential of serious political mischief.

Worse it will ruin the only eyes and ears of the nation.

Two furrin trained lawyers working to undermine national institutions.

[abhishek_sharma]

To woo CMs, Centre will clip NCTC wings

[ramana]

To woo CMs, Centre will clip NCTC wings

Its still a MHA order and not a legislation. The Secy's language has too many weasel/nebulous words to allow potential abuse. The Centre can unclip the powers in future.

If they are serious they should bring in a new law and put NCTC under it or remove it from IB.

It is un-democratic to give Central spy agencies arrest powers. It smacks of KGB, Gestapo etc.

Where are the checks and balances? INC has misused such agencies during the Emergency and seeks more powers now.

[ramana]

B. Raman in Pioneer...

National Security is too important to be left to politics

He means politicking.

The NCTC fiasco shows how an issue concerning the security of the country has got needlessly converted into a political confrontation


Individual States can control regional terrorism or insurgency with a limited spread. We have had success stories as in the case of Al Ummah in Tamil Nadu.

But terrorism or insurgency of a pan-Indian spread is a different kind of threat. It’s like that of the Indian Mujahideen or the Maoist insurgency. All of India is their theatre and target. No individual State police, however professional and competent, can deal with the threat on its own.

We are on the threshold of other and more deadly mutations of terrorism, such as maritime terrorism. Global terrorist organisations have been on the lookout for weapons of mass destruction. From being global, such threats are likely to become national.

Only the Union Government can deal with these mutations and prevent them from operating in our territory. No individual State police has or will ever have the expertise and capability to prevent and neutralise them.

Our internal security problems are inextricably entwined with our external environment. The non-state actors of today — whether terrorists or insurgents — copycat the security agencies in their ability to use modern technologies and find new means of causing large-scale death and destrution.

Protecting ourselves from these ever-changing threats is the business of all of us — whether the central agencies or the State police. When our Constitution was framed more than 60 years ago, our internal security tasks were simple — dealing with dacoities, robberies and insurgencies of the Telangana kind, at the most.

Our founding fathers had the confidence that the States could deal with any internal security threat single-handedly. In their keenness to preserve and protect our federal structure, they made the police a State subject.

Threats have changed today beyond our worst imagination. No single Government or agency or police force can cope with the threats of today by operating from an island of its own imagination.

The island mentality and the island techniques in the management of internal security have to give way to a cooperative and coordinated way of managing internal security.

Federalism is no longer the ability to act alone. It is the willingness and the ability to act together. Terrorists and insurgents are increasingly working together at the regional, the national and the global levels. But we in India are not. We find it easier to cooperate with other nations, but not with ourselves.

The current controversy over the issue of the National Counter-Terrorism Centre between the Centre and the States illustrates the continuing prevalence of the island mentality in dealing with pan-Indian internal security threats.

The concept was borrowed by Union Minister for Home Affairs P Chidambaram from the US where its counterpart has played a useful role in preventing terrorism.

Normally, there should have been no controversy but Mr Chidambaram’s action in seeking to make the NCTC a part of the Intelligence Bureau with executive powers of arrest and search has rightly alarmed the Opposition-ruled States.

In the United States and elsewhere, such instruments function independently and not as a wing of the intelligence agency. They have no powers of arrest and search. The IB is a clandestine instrument. Fears of likely misuse of such powers by it are legitimate. They have to be addressed.

{Note he doesn't give any ways to address them but accepts there is a concern!}

We used to have ‘good’ habits of cooperation in the past when the same political party was in power at the Centre and in the States. These habits are withering away due to the emerging multi-polarity of our political landscape in which everything is getting increasingly politicised.

{This is what the old time bureaucrats want. Dealing with the INC monarchy}


We need new instruments to deal with the threats of today. Yesterday’s instruments are out of date. To oppose the new instruments under the pretext of threats to federalism is short-sighted and will prove to be suicidal.


{Federalism is the only stick the states can wave when the real concern is the arrest powers to a Central clandestine agency under a ministry control and not even the Prime Minster}

We have to think of new ways of interpreting and protecting federalism that would strengthen our ability to maintain internal security without jeopardising our federal structure. Dogged, unthinking opposition to new, much-needed structures such as the NCTC will prove counter-productive.

The Centre cannot escape blame for the current controversy. It should have realised that it cannot deal with internal security without the cooperation of the State police. Instead of consulting the States and encouraging them to get into the same boat, it has added to their suspicions by playing games that politicians play, unmindful of the national interest involved.

Its action in avoiding political consultations on the NCTC before issuing the notification on the organisation’s creation, is haunting it now. Instead of making the States more flexible and responsive to ideas of pan-Indian counter-terrorism management, it has made them more distrustful of the Union Government.


{The manner in which the NCTC was proposed to be created further fuelled the motivations for creating it.}

It is time for the Prime Minister to take over the leadership role in this matter and remove suspicions and apprehensions of the States. How can India have internal peace if the institutions of individual States decay, and how can individual States have internal peace if the central institutions are thwarted from functioning as they should?

The Prime Minister should announce the withdrawal of the notification already issued and set up a small group of experts from the Centre and the States to come out with a fresh draft of how the NCTC will function without adding to frictions between the Centre and the States.

(The writer, an expert on counter-terrorism and strategic affairs, is a former senior officer of Research & Analysis Wing. He is now Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies.)

The urgent need is to show how the NCTC arrest powers can't and won't be misused. As long as it functions under the MHA which is a ministry comparisoans to FSU and Nazi Germany will remain. So if you want to have arrest owers for IB in NCTC then move the NCTC under the NSA. It cannot remain under a politicial minister. Next have a SC level judge to refer to habeaus corpus type writs to justify the arrest powers are not abused.