Tuesday, February 21, 2012

Parliamentary Oversight Of Intelligence Agencies Of India Is Needed

In this exclusive guest column, Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, has shared his viewpoints about the growing needs of parliamentary oversight of intelligence agencies and law enforcement agencies of India.

Indian Government is too reluctant to ensure Parliamentary Oversight for Intelligence Agencies and Law Enforcement Agencies of India. If this is not enough, Indian Government has been launching new Projects having serious “Constitutional Ramifications” and “Civil Liberties Violation” effects.

For instance, the National Counter Terrorism Centre (NCTC) Project of India, National Intelligence Grid (Natgrid) Project of India, Aadhar Project of India, Crime and Criminal Tracking Network and System (CCTNS), etc are not governed by any Legal Framework and Parliamentary Oversight. Indian Government is not willing to understand and accept that Intelligence Work is not an excuse for Non Accountability.

For some strange reasons Intelligence Infrastructure of India has become synonymous for Non Accountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India.

Even a basic level effort to enact a Legal Framework for Intelligence Agencies of India is missing in India. The first and foremost challenge to such Parliamentary Oversight mechanism comes from the Intelligence Agencies themselves that do not wish to be governed by any Rules and Norms at all.

Then we have “Bureaucratic Hurdles” in India that do not allow such a Legal Framework to be proceeded with. Finally, the Parliament of India itself is not interested in bringing these Intelligence Agencies within the fold of Parliamentary Oversight.

Take the example of the recent Private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011. It was shelved out by none other than the Indian Prime Minister Dr. Manmohan Singh who announced that Law on Intelligence Agencies would be formulated soon. However, it proved nothing but a “Time Gaining Tactics” and so far Intelligence Agencies of India are not governed by any Legal Framework and Parliamentary Oversight.

Interestingly, even the Central Bureau of Investigation (CBI) is riding the same boat. The Draft Central Bureau of Investigation Act, 2010 is another example where the Indian Government is just interested in making “Declaration” with no actual “Intention” to implement the same.

In these circumstances, can the States trust the Centre regarding the establishment of National Counter Terrorism Centre (NCTC) of India? The answer is definitely negative even if States keep their “Political Interests” aside. This is also the reason why NCTC is facing stiff oppositions. Of course, there are “Practical Difficulties” and “Internal Turf War” among various Agencies and Ministries of Central Government a well. It seems the obvious but unsolvable Terrorism Dilemma in India would continue as National Interest of India and fighting Terrorism is not a “National Priority”.

Till now the constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) has not been accepted by States and now NCTC has been launched through an “Executive Order”. The practice of clubbing new Projects, Agencies and Institutions with existing laws is a bad approach. So NCTC without a Legal Framework is definitely Unconstitutional and even tagging it with the Unlawful Activities (Prevention) Act, 1967 would not save it from the Patent and Apparent Unconstitutionality with which it is suffering.