NCTC not against federalism; needed for national security

Chief ministers of eight states have vehemently opposed the creation of the National Counter Terrorism Centre (NCTC) as they believe that it would violate the ‘federal’ structure and suppresses the rights of states.

We need to discuss whether this is really true. Their other objection is that the Centre did not consult them before setting up such a powerful counter terrorism agency. Considering the chief ministers of Tamil Nadu, Kashmir, Odisha, Gujarat, West Bengal, Bihar and Madhya Pradesh are all political heavy weights, it becomes a Centre-State relations controversy.    

The NCTC derives its powers from an existing statute the Unlawful Activities (Prevention) Act, 1967 or UAPA. This was later amended in 2008. The centre is well within its rights to set up this body. Article 73 of the Constitution spells out the extent of the executive power of the Union and the power of parliament to lay down laws for states.

The controversy largely arises on operational powers to the NCTC under section 43 (A) of the Unlawful Activities Prevention Act (UAPA) 1967, amended and passed with unanimity by both House of Parliament in the aftermath of the Mumbai terror attacks in 2008. This says a suspect may be arrested by any officer of the designated authority.

The NCTC will also have the power to seek information, including documents, reports, transcripts, and cyber information from any agency, including from the Central Bureau of Investigation (CBI), National Investigation Agency, Natgrid, National Technical Research Organisation, Directorate of Revenue Intelligence and all seven central armed police forces including the National Security Guard (NSG). It will be the nodal agency for all counter-terrorism activities and intelligence agencies such as Intelligence Bureau (IB), Research and Analysis Wing (R&AW), Joint Intelligence Committee (JIC) and state intelligence agencies. This seems to make the agency appear as a behemoth, which will consume all other bodies.

The states are concerned about NCTC overriding their powers. Under the 7th schedule (List II) of the Indian constitution the states have the right over public order (not including the use of armed forces - army, navy and air force) and the police. The states feel that if NCTC officials are given the power to conduct operations and arrest suspects in their respective states, this would weaken the state police. The states feel that this would be a draconian measure.

Global phenomenon

However the same 7th schedule under List I give the Union powers for the Defence of India. Terrorism is now a global phenomenon and nation states are at their wits end in try to combat this menace to humanity. Agencies like the NCTC will play a frontline role to combat this challenge. Integration of vital information is crucial in this battle against terrorism.

Intelligence gathering in India has not been adequate owing to a proliferation of agencies with overlapping roles and the absence of suitable inter-agency channels to coordinate their work. The Multi Agency Centre has been moderately successful but this is just the first step. The Intelligence Bureau is overburdened and faces a serious resource crunch at the operational level. This explains the reason for repeated terrorist attacks and its inability to track down the perpetrators.

While India continued to suffer terrorist attacks time and again the US post 9/11 successfully thwarted such threats effectively through the creation of the NCTC and instituted an office of the Director of National Intelligence under the Intelligence Reform and Terrorism Prevention Act (2004). This helped to make the nation more secure through a fully integrated Intelligence Community.

The US too could have witnessed federal challenges as the 10th Amendment of the US Constitution states –“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is not the case in India where in a similar context the powers are given to the Union and not the states.

Given the US government’s track record to streamline its security bureaucracy, to tackle the scourge of terrorism, home minister P Chidambaram and former national security adviser MK Narayanan visited the US in 2009 to study the working of the American NCTC.

These two bodies became the template on which the Indian agency would be carved out. They observed that the American NCTC dealt only with intelligence gathering/coordination and strategic planning. It did not concern itself with the operations aspect of counter terrorism. The UK body too was largely used to coordinate different intelligence agencies.

Looking at these aspects it was decided that the Indian agency would in addition to regular intelligence functions also possess wide ranging powers to conduct search operations.

The creation of NCTC is not an attack on the federal structure of India. In fact it will go a long way to safeguard our national security interests in conjunction with the state police apparatus.

(The writer teaches at the School of Law, Christ University, Bangalore)