Police powers will stir up a hornet's nest

Ever since the 26/11 terrorist attack on Mumbai, Government of India has been taking various measures to augment its counter-terrorism capabilities. The National Investigation Agency was set up.

NSG hubs were established at other metropolitan centres. Coastal security was beefed up. Counter-insurgency and Anti-terrorism training centres were established. The states were asked to reinforce the capabilities of their police forces, etc. As part of this exercise, the Union Home Minister, P Chidambaram, announced at a conference of the Intelligence Bureau in December 2009 the decision to set up an over-arching National Counter Terrorism Centre to perform “functions relating to intelligence, investigation and operations” for “preventing, containing and responding to terror attacks”.

The Home Minister’s scheme, however, ran into rough weather. There was opposition from various quarters to the setting up of such a powerful body. The proposed NCTC represents a compromise arrived at after more than two years of inter-departmental discussions and wrangling. The NCTC will function as part of the Intelligence Bureau.

However, its functions would not be limited to collecting, coordinating and disseminating intelligence about the activities of terrorists and terrorist organisations – it will also have the powers of arrest, search and seizure under Section 43 (A) of the Unlawful Activities (Prevention) Act. In other words, the IB would be vested with police powers, which it did not have so far.

There is no doubt that our counter-terrorism capabilities need to be enhanced. There is no doubt that the existing Multi Agency Centre had proved inadequate and that a more powerful body was needed in its place. However, while fulfilling an important requirement, the Home Ministry appears to have over-played its cards. In the wake of 9/11, the US Government also set up a National Counter Terrorism Centre, but it was an independent body, not under the control of any intelligence agency. The thinking was that an independent body would take an objective view of the counter terrorism operations of the different intelligence agencies and ensure their proper coordination.

This objectivity would be missing in our NCTC. Besides, any mistakes made by the IB would get replicated and even magnified by the apex body.

There is another sinister aspect to the proposals. The central government could always misuse the IB and, through it, the NCTC to arrest and harass its political adversaries, branding them as terrorists or their associates. We are witness to the CBI being used to political advantage. The possibility of NCTC being also misused would always be there.

Besides, an intelligence agency has been given powers of arrest only in totalitarian regimes. In US or in the UK, the intelligence agencies do not have such powers.

Chidambaram got the idea of NCTC essentially from USA. But the NCTC set up in USA in 2004 was given responsibility only of intelligence integration and strategic planning and not directing any operations.

Operations are conducted by the Department of Homeland Security. In the UK, the Joint Terrorism Analysis Centre (JTAC) also merely integrates intelligence received from different agencies while the counter terrorist operations are carried out by the Counter-Terrorism Command, the local police and the Regional Counter-Terrorism Commands.

Objections

Several chief ministers have objected to the NCTC on the ground that it violates the existing arrangement for the distribution of powers between the centre and the states and that it impinges on the federal structure enshrined in the Constitution. The objection is valid only insofar as the proposed NCTC vests police powers in the body – powers which are exercised normally by the state police, the CBI and the NIA only.

The Union Government should revisit this particular clause and withdraw it to avoid unnecessary controversy and friction in centre-state relations. The ‘federal’ principle has unfortunately become a convenient argument for the opposition parties to assail the central government on a wide range of issues – the Lokpal Bill, FDI in retail, giving police powers to the RPF, etc. The state chief ministers seem to forget that they depend on the centre for even the most minor eruptions on law and order front – be it agrarian trouble, caste clash, festival arrangements, rail roko or any other agitation.

Terrorist threat requires a much more comprehensive response. There are terrorist organisations which want to destabilise India politically, disrupt it economically and fracture it socially. There can be no getting away from greater central involvement in dealing with this international threat. The NCTC would have a pivotal role to play in combating the terrorist threat. This is, however, not to say, much less justify, that it should have powers which would be undemocratic.

The country must have an NCTC – and a strong one at that – with a comprehensive reach, but it must not become a parallel police body armed with powers, the temptation to abuse which would always be there.

(The writer is the former chief of the Border Security Force and UP Police.)

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