After functioning in the shadows for decades – with zero accountability and budgets that kept increasing without any audit – it’s for the first time in India that the Parliament will debate the constitutional validity, efficacy & oversight mechanisms of India’s Intelligence community.
Despite the Constitution mandating, in its seventh schedule, that a central intelligence bureau be created only by an act of Parliament, no government in India has ever introduced a bill to be passed as an Act, thus creating a major anomaly in the functioning of intelligence agencies in the country. The charter, powers, duties and functioning of these agencies have also never been mandated by Parliament.
However, recurring incidences of intelligence failures in avoiding terrorist attacks and protecting the corresponding loss of innocent lives and national wealth has attracted some staunch criticism for the intelligence community in recent past. Thus, aimed at providing a legal framework of internal and external intelligence agencies, regulating the functioning and the use of powers by Indian Intelligence agencies, both within and outside India, and to provide for coordination, control and oversight of these agencies, senior Congress leader and Member of Parliament (MP) Manish Tewari has introduced a Bill titled “The Intelligence Services (Powers and Regulation) Bill, 2011”, in the recently concluded Budget Session of the Parliament. The Bill, if it gets through, claims to provide a clear framework to regulate the manner of functioning and the exercise of powers of Indian intelligence agencies.
With a strong belief that a legislation is imperative for empowering the intelligence agencies to equip them with the tools and resources necessary to address present day challenges and regulating the possible infringement of privacy of citizens, while giving credence to security concerns, the Bill, introduced by Tewari, also a senior Supreme Court lawyer, seeks to enact a legislation pursuant to Entry 8 of List I of the Seventh Schedule of the Constitution of India. If approved, the Bill would provide for “a legislative and regulatory framework for the Intelligence Bureau (IB), the Research and Analysis Wing (RAW) and the National Technical Research Organisation (NTRO); a National Intelligence Tribunal for the investigation of complaints against these agencies; a National Intelligence and Security Oversight Committee for an effective oversight mechanism of these agencies; and an Intelligence Ombudsman for efficient functioning of the agencies and for matters connected therewith.” The proposed reforms in India’s intelligence structure are based on Observer Research Foundation’s (ORF) year-long study guided by Tewari, who is also an advisor to ORF.
The need for the Bill, says Tewari, is based on the concern that organisations which are tasked with the responsibility of preserving and protecting national security (which by influence or corollary gives them the authority of life and liberty) need to be put on a proper legal footing. Tewari has contested that India’s central intelligence agencies – IB, RAW, NTRO – have no constitutional validity as they have not been created through an Act of the Parliament. “In response to a question on the legal architecture from which the IB draws its legal authority, the government responded saying that the Intelligence Bureau figures in Schedule 7 of the Constitution under the Union List. So, the government has the legislative power to create a bureau of intelligence to be called by whatever name and the mere mention of a subject in the laundry list of legislative powers gives neither life nor legitimacy to an organisation. The same goes for RAW. The government has already admitted that there is no specific statute governing the functions and mandate of RAW,” Tewari tells B&E. D. C. Nath, former IB Special Director and a member of the team that drafted the Bill, believes that a one-point answer to all problems related to intelligence in India lies in the understanding of intelligence, most importantly by bureaucrats and politicians. “While talking of intelligence, all that Chidambaram can talk about is the NCTC. However, there are many forms of intelligence – political, military, business, et al. Thus, there has to be a proper understanding and coordination. An acceptance of the primacy of intelligence in day to day functioning is very vital. There also has to be one Head of all these agencies,” says Nath while adding that the openness in the IB functioning is important to help understand and promote transparency.
The need for a legislation to regulate the functioning of India’s intelligence communities is also based on the fact that these agencies have been mired in several controversies ranging from appointments of its chiefs to illegal acts of detention, beatings and an allegedly guided emphasis on gathering political intelligence, which, apart from other negative aspects, certainly damages the integrity of intelligence professionals who prefer their core responsibilities rather than following the contrivances of the political party in power.
Strategic Analyst and another drafting committee member Commander Uday Bhaskar says that the Bill has been long overdue. “Ever since the intelligence failure leading to the Kargil war in 1999, there has been a need to revamp the intelligence structure. There has to be an objective overview of how intelligence agencies operate and the Bill is a commendable attempt in this direction. However, it needs to be reviewed in several areas,” Bhaskar tells B&E. Despite India having been an independent nation for sixty three years now, there has not been one attempt by any government so far to legislate the governance of a sector which should ideally have maximum accountability. Even the UK, from which India inherited its systems of governance and laws, has moved on and passed three Acts of Parliament between 1989 and 2000 to create and oversee its intelligence agencies. In fact, there are currently over 170 countries across the world which have some form of parliamentary control, sanction or mandate for their intelligence agencies.
The Bill stipulates that the day-to-day operation of the RAW shall be vested in an officer not below the rank of a Secretary to the Government of India, appointed by the Prime Minister, with a tenure of two years or until the age of 62. It also stipulates that the IB shall function under the control of the PM and it shall be the duty of the IB to work for national security in the context of internal conflict and, in particular, provide protection against threats from espionage, terrorist acts organised by other countries within the territory of India with the help of Indian nationals or residents and from actions intended to subvert the Constitution of India by violent means. The Bill further proposes that the NTRO (raised in the aftermath of the Kargil war), shall function under the control of the PM and the Central government shall, in consultation with the National Intelligence & Security Oversight Committee, appoint an Intelligence Ombudsman from amongst persons having special knowledge in the field of intelligence to address the grievance of the members of staff and officers of the RAW, the IB and the NTRO.
The NTRO, which gathers technical intelligence using an array of radars and antennae on the lines of the US National Security Agency (NSA), has been dogged by a series of controversies of late. It also has the dubious distinction of becoming the first intelligence agency in independent India to face a hostile audit by the CAG. As per the new Bill, the day-to-day operation of the NTRO shall be vested in a Chairman who shall be appointed by the PM and shall hold office for a period of two years or attaining the age of 62 years.
The Bill further states that the Committee shall, unless it is necessary to perform the functions assigned to it under the Act, not go into the operational aspects and sources of intelligence of the functioning of the RAW, IB and NTRO, as the case may be. The Bill also envisages establishing a tribunal to be known as the National Intelligence Tribunal, under the chairmanship of a sitting or retired Supreme Court judge, for the purpose of investigating complaints against RAW, IB or NTRO.
Given the rising number of terrorist attacks hitting India in recent years, the propositions of the Intelligence Bill do seem relevant, especially if we look at the absence of a regulatory mechanism and an absolute lack of accountability & procedure. However, it is also a fact that there is not a single instance in the history of the Indian Parliament where a private member’s Bill has been legislated into an Act.
Despite the Constitution mandating, in its seventh schedule, that a central intelligence bureau be created only by an act of Parliament, no government in India has ever introduced a bill to be passed as an Act, thus creating a major anomaly in the functioning of intelligence agencies in the country. The charter, powers, duties and functioning of these agencies have also never been mandated by Parliament.
However, recurring incidences of intelligence failures in avoiding terrorist attacks and protecting the corresponding loss of innocent lives and national wealth has attracted some staunch criticism for the intelligence community in recent past. Thus, aimed at providing a legal framework of internal and external intelligence agencies, regulating the functioning and the use of powers by Indian Intelligence agencies, both within and outside India, and to provide for coordination, control and oversight of these agencies, senior Congress leader and Member of Parliament (MP) Manish Tewari has introduced a Bill titled “The Intelligence Services (Powers and Regulation) Bill, 2011”, in the recently concluded Budget Session of the Parliament. The Bill, if it gets through, claims to provide a clear framework to regulate the manner of functioning and the exercise of powers of Indian intelligence agencies.
With a strong belief that a legislation is imperative for empowering the intelligence agencies to equip them with the tools and resources necessary to address present day challenges and regulating the possible infringement of privacy of citizens, while giving credence to security concerns, the Bill, introduced by Tewari, also a senior Supreme Court lawyer, seeks to enact a legislation pursuant to Entry 8 of List I of the Seventh Schedule of the Constitution of India. If approved, the Bill would provide for “a legislative and regulatory framework for the Intelligence Bureau (IB), the Research and Analysis Wing (RAW) and the National Technical Research Organisation (NTRO); a National Intelligence Tribunal for the investigation of complaints against these agencies; a National Intelligence and Security Oversight Committee for an effective oversight mechanism of these agencies; and an Intelligence Ombudsman for efficient functioning of the agencies and for matters connected therewith.” The proposed reforms in India’s intelligence structure are based on Observer Research Foundation’s (ORF) year-long study guided by Tewari, who is also an advisor to ORF.
The need for the Bill, says Tewari, is based on the concern that organisations which are tasked with the responsibility of preserving and protecting national security (which by influence or corollary gives them the authority of life and liberty) need to be put on a proper legal footing. Tewari has contested that India’s central intelligence agencies – IB, RAW, NTRO – have no constitutional validity as they have not been created through an Act of the Parliament. “In response to a question on the legal architecture from which the IB draws its legal authority, the government responded saying that the Intelligence Bureau figures in Schedule 7 of the Constitution under the Union List. So, the government has the legislative power to create a bureau of intelligence to be called by whatever name and the mere mention of a subject in the laundry list of legislative powers gives neither life nor legitimacy to an organisation. The same goes for RAW. The government has already admitted that there is no specific statute governing the functions and mandate of RAW,” Tewari tells B&E. D. C. Nath, former IB Special Director and a member of the team that drafted the Bill, believes that a one-point answer to all problems related to intelligence in India lies in the understanding of intelligence, most importantly by bureaucrats and politicians. “While talking of intelligence, all that Chidambaram can talk about is the NCTC. However, there are many forms of intelligence – political, military, business, et al. Thus, there has to be a proper understanding and coordination. An acceptance of the primacy of intelligence in day to day functioning is very vital. There also has to be one Head of all these agencies,” says Nath while adding that the openness in the IB functioning is important to help understand and promote transparency.
The need for a legislation to regulate the functioning of India’s intelligence communities is also based on the fact that these agencies have been mired in several controversies ranging from appointments of its chiefs to illegal acts of detention, beatings and an allegedly guided emphasis on gathering political intelligence, which, apart from other negative aspects, certainly damages the integrity of intelligence professionals who prefer their core responsibilities rather than following the contrivances of the political party in power.
Strategic Analyst and another drafting committee member Commander Uday Bhaskar says that the Bill has been long overdue. “Ever since the intelligence failure leading to the Kargil war in 1999, there has been a need to revamp the intelligence structure. There has to be an objective overview of how intelligence agencies operate and the Bill is a commendable attempt in this direction. However, it needs to be reviewed in several areas,” Bhaskar tells B&E. Despite India having been an independent nation for sixty three years now, there has not been one attempt by any government so far to legislate the governance of a sector which should ideally have maximum accountability. Even the UK, from which India inherited its systems of governance and laws, has moved on and passed three Acts of Parliament between 1989 and 2000 to create and oversee its intelligence agencies. In fact, there are currently over 170 countries across the world which have some form of parliamentary control, sanction or mandate for their intelligence agencies.
The Bill stipulates that the day-to-day operation of the RAW shall be vested in an officer not below the rank of a Secretary to the Government of India, appointed by the Prime Minister, with a tenure of two years or until the age of 62. It also stipulates that the IB shall function under the control of the PM and it shall be the duty of the IB to work for national security in the context of internal conflict and, in particular, provide protection against threats from espionage, terrorist acts organised by other countries within the territory of India with the help of Indian nationals or residents and from actions intended to subvert the Constitution of India by violent means. The Bill further proposes that the NTRO (raised in the aftermath of the Kargil war), shall function under the control of the PM and the Central government shall, in consultation with the National Intelligence & Security Oversight Committee, appoint an Intelligence Ombudsman from amongst persons having special knowledge in the field of intelligence to address the grievance of the members of staff and officers of the RAW, the IB and the NTRO.
The NTRO, which gathers technical intelligence using an array of radars and antennae on the lines of the US National Security Agency (NSA), has been dogged by a series of controversies of late. It also has the dubious distinction of becoming the first intelligence agency in independent India to face a hostile audit by the CAG. As per the new Bill, the day-to-day operation of the NTRO shall be vested in a Chairman who shall be appointed by the PM and shall hold office for a period of two years or attaining the age of 62 years.
The Bill further states that the Committee shall, unless it is necessary to perform the functions assigned to it under the Act, not go into the operational aspects and sources of intelligence of the functioning of the RAW, IB and NTRO, as the case may be. The Bill also envisages establishing a tribunal to be known as the National Intelligence Tribunal, under the chairmanship of a sitting or retired Supreme Court judge, for the purpose of investigating complaints against RAW, IB or NTRO.
Given the rising number of terrorist attacks hitting India in recent years, the propositions of the Intelligence Bill do seem relevant, especially if we look at the absence of a regulatory mechanism and an absolute lack of accountability & procedure. However, it is also a fact that there is not a single instance in the history of the Indian Parliament where a private member’s Bill has been legislated into an Act.
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