Ishwar Singh

The Indian state should enact specific legislation for these intelligence agencies laying down their mandates, powers and proper procedure.

After the end of the Cold War, rose a multi-polar world with many nations trying to fill the void left by USSR. Until then, the role of intelligence agencies was largely external in nature, limited to the actions of state actors. However post-Cold War, especially after the 9/11 terror attacks, the need for a domestic intelligence agency was emphatically highlighted. The term ‘domestic’ implies elements which are mostly non-state parties operating independently without a formal structure. No longer were foreign invasions the prime threat, but rather organized crime syndicates and terrorism became the main focus of these agencies.

In India, thanks to our colonial masters who wanted to curtail revolutionary activities  and mismanagement of supplies during World War II, we inherited a well-oiled ‘domestic’ intelligence agency, namely the Intelligence Bureau or the IB. In addition to IB,  today other agencies such as National Investigation Agency (NIA), Central Bureau of Investigation (CBI) and to even an extent Research and Analysis Wing (R&AW) perform functions which can be qualified as domestic intelligence activities in nature. In totality, however there are around fifteen such agencies in India with overlapping functions. This in itself can be a point of criticism, however in the present piece I will be focusing on two concerns, firstly the legal basis of these agencies, and secondly on creating an accountability mechanism based on ensuring integrity of these agencies.

The rule of law is an integral feature of a democratic state and can’t be dispensed at any cost. The nature of powers granted require that the same are not misused and the first step in this process is to ground these powers in a legal regime. Article 21 ensures “no person can be deprived of life or personal liberty except according to procedure established by law” and includes also the recently recognized right of privacy.

European precedent regarding the same issue highlights this problem as they have seen extensive litigation over human rights issues and a lot of them do deal with intelligence agencies. In the popular case of Harman and Hewitt v UK decided by the European Court of Human Rights (ECHR), the lack of statutory basis for MI5 proved problematic as the court declared its actions not in accordance with law as the directive on which it was based was deemed to be not legally binding and hence unenforceable. As a response the UK government was forced to enact a statute for MI5 and other agencies. Additional cases such as that of Tsavachadis v Greece held that it was beyond the mandate of the Greek intelligence agency to conduct surveillance of Jehovah’s Witnesses. This meant that not only does enacting a statue is necessary but also the objectives and the mandate of the intelligence agency should also be included in the statute. This ‘grounding of legality’ could be done by laying down either “general statements that the powers of agencies can only be used where ‘necessary’, that alternatives less restrictive of human rights are always to be preferred, and that the principle of proportionality should be observed” or “of giving detailed provisions governing each investigative technique that the agency may utilise”. The approaches could change with regards to the mandate given to the agency but the ultimate aim in both the strategies is to restrict the unwarranted usage of powers.

Two of the most prominent Indian Intelligence Agencies, IB and R&AW have their origins in executive orders without any proper statutory origin and hence if challenged would have a hard time to prove the basis of their action as seen previously in a similar challenge to CBI in Navendra Kumar vs Union of India. This lacunae has been noted previously by LP Singh Committee which recommended enactment of a legal framework as well as a charter of duties and  similar views have been echoed by security experts. (See here and here for discussions on suggested reforms for Indian Intelligence Agencies) While there has been a previous attempt to rectify this but the same failed to become a statute. The only exception is the NIA which has its own legislation.

It should be noted that constitutionality of IB has been challenged by a former employee and is pending before the Karnataka High Court. In the same, the IB has advanced the stance that it is a mere civilian organisation devoid of any kind of police powers. While on the face of it such a stance seems untenable, ultimately the court would have to necessarily do a balancing act between the competing claims of ‘national security’ vis-à-vis ‘violation of fundamental rights’.

Taking note of this, it would be interesting to highlight the instance of one of the rare moments where the employees of these agencies came face to face with the might of the state. The response that followed both from the legislature in terms of enactment of laws as well as the judiciary in terms of  rights adjudication (especially concerning  ‘national security’ ) is described below.

In Satyavir Singh v Union of India, some R&AW employees formed an association under the name of “The Cabinet Secretariat (Research and Analysis Wing) Employees Association (Regd.)” and made a charter of demands. When these demands were not met, the employees resorted to agitation which further led to a pen down strike across its various branch offices. The agency responded by issuing dismissal orders without conducting any departmental enquiry under clause (b) of the second proviso to Article 311(2) of the Indian Constitution.

Similarly in A.K. Kaul v Union of India when IB employees formed an association, they were served with a circular stating that such an association would violate their service rules. The employees approached court and despite an interim order maintaining status quo, they were served dismissal orders under clause (c) of the second proviso to Article 311(2) of the Indian Constitution.

What is particularly striking in both the cases is the defence taken up by the agencies on the pretext of ‘national security’ to as showcase the urgency in dismissing these employees and advance the same for not holding a departmental enquiry thus violating their constitutional rights under Article 311. Further, in the latter case, the court also rejected the petitioner’s plea to disclose the material on the basis of which such an approval of the President was taken.

While both the decisions do not delve into the violation of fundamental rights, particularly the right to protest and right to form associations, the response of the legislature was swift to put an end to this saga by introducing the Constitution (Fiftieth Amendment) Act of 1984 and including intelligence agencies under the ambit of Article 33. Further, they also enacted Intelligence Organisations (Restriction of Rights) Act of 1985 which interestingly is the only piece of legislation that is applicable to these intelligence agencies and prohibits membership of any “trade union, labour union, political association” in order to ensure the “proper discharge of their duties” and the ‘maintenance of discipline”.  This restriction was upheld as constitutional in a tersely worded judgement –Intelligence Bureau Employees Association vs Union of India by stating that the restriction was not a blanket ban and employees can join associations which are “purely social, recreational or religious” in nature.

In practice however, misuse of intelligence agencies is rampant in India both externally through political agencies as well as internally wherein IPS officers who are political appointees discriminate against members who are directly recruited and openly flaunt the restrictions imposed under Intelligence Organisations (Restriction of Rights) Act which in itself is a punishable offense! (as discussed in a book titled ‘Sins of Conscience’ by RN Kulkarni who incidentally is also the petitioner in the case pending before the Karnataka High Court).

Recently, in the case of Nisha Priya Bhatia vs Union of India, the apex court had to deal with an employment dispute arising out of a sexual harassment complaint filed by a former employee of RA&W. The petitioner had filed a sexual harassment complaint and the resultant inquiry was mired with procedural lapses and delays. During the same time, the complainant was compulsorily retired on the pretext that her identity has been compromised which was in contravention of Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 which allowed the same in case of ‘exposure’. While it is pertinent to note that the case received extensive media coverage for various reasons, it is pertinent to note that two specific grounds of challenge, one being void for ‘vagueness’ and second being its non-publication. Both the grounds were rejected on account of ‘national security’.

The challenge on the ground of vagueness of the term ‘exposure’ was held as unsustainable because the standard taken for a ‘reasonable man’ was different in light of the petitioner being a ‘Class I Intelligence Officer’, also hinting at the media frenzy that resulted in the entire incident. Though judicial discretion could be accorded in erstwhile context, it is the second ground which seems more problematic wherein the court held that its in ‘public interest’ that intelligence organization’s structure should not be revealed through publication of such rules. While declaring this, they followed the impugned judgement of the Delhi High Court and out rightly declined to entertain the petitioner’s plea on the fact that she was made aware of the rules only when the order of compulsory retirement was communicated to her, and instead chose to rely on the Union’s affidavit that the relevant rules are available at every branch office of R&AW. Unfortunately no discussion on ‘proportionality’ or any ‘compelling grounds’ vis-à-vis for non-publication for these rules were discussed extensively despite the fact that a redacted version of these rules could easily have been made available in public domain. However, the court noted the procedural irregularities in the complaint of sexual harassment and awarded compensation under Article 21. This could be seen as an addition in the class of cases where compensation can be awarded as a constitutional remedy.

Coming to contentions of fundamental rights of private citizens vis-à-vis these intelligence agencies, it is to be noted that not many cases as of now have reached the courts for adjudication especially where IB or RA&W are the alleged offenders. Even then , claims for violation of fundamental rights have largely been restricted to claims regarding privacy which has only been recently recognised as a fundamental right explicitly and therefore it is expected that we can expect better clarity on these aspects in near future. Additionally, existing case law largely deals with the actions of the CBI which already has a legal framework and thereby these cases has been kept outside the scope of this article.

The IB though was involved in the case of Priya Parameshwaran Pillai vs Union Of India wherein the Delhi High Court ordered the IB to remove petitioner’s name from a secret database on the basis of which a lookout circular was issued which prevented the petitioner from exercise her right to travel. This action was held to be unjust, but the decision fell short of declaring the action as violation of fundamental right despite a specific prayer to that effect. Another case was of CPIO, Intelligence Bureau vs Sanjiv Chaturvedi wherein the CIC ordered that the IB report which highlighted the harassment meted out to respondent during his tenure with state of Haryana, be divulged. On appeal, the Hon’ble Delhi High Court noted the exemption provided to intelligences agencies under Section 24 in Right to Information Act of 2005 from divulging any information. However the court noted the ‘human right violation’ exception to this blanket exemption and allowed the petitioner to access the report prepared by IB. This case serves as an example of how thorough statutory enactments can be used for regulation of these organisations as well as for protection of human rights.

In a recent paper, intelligence agencies  were evaluated on different benchmarks namely, (a) Domestic intelligence subject to laws; (b) Co-ordination of domestic and foreign intelligence; (c) Executive branch coordination; (d) Independent assessments and (e) Oversight Mechanisms. While the legislature may take its time considering the political  attention paid to reforms in intelligence agencies, to enact the law, it is pertinent that a system that ensures integrity and promotes democratic functioning should be put in place.

An effective oversight system ensures that resources are effectively utilized, proper training and recruitment process as well as an increase in operational capabilities. This only would happen if a well-balanced system of checks and balances is in place especially balancing the degree of control over these agencies between the executive and legislature. The ultimate authority and legitimacy of intelligence agencies should rest on legislative approval of their, operations and expenditure but due to the nature of the work the effective control should lie with the executive. There is no intrinsic conflict between effective executive control and parliamentary oversight. On the contrary, the latter depends on the former. A well-calibrated accountability system insulates security and intelligence agencies from political abuse without isolating them from executive control.”

Conclusion

Hence in future, keeping in mind the ever increasing activist approach of Indian Courts, the Indian state should enact specific legislation for these intelligence agencies laying down their mandates, powers and proper procedure.

India operates in a rough neighborhood with both external and internal threats and hence the importance of intelligence agencies in national security can’t be disregarded. Though secrecy is the traditional norm, it is high time that transparency and accountability be maintained by the intelligence agencies. A lot is at stake, taxpayer’s hard-earned money, unrestricted powers and even the risk of political abuse. These reforms convert the earlier concept of a guardian state to that of a modern accountable democratic state vis-à-vis intelligence agencies. These reforms would also legitimize the intelligence agencies while improving their infamous public image.

The author is IVth year student at NLSIU Bangalore.

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