“Regulating the Gentleman’s Game”: Intelligence Reform in India
Menaka Guruswamy
In the Republic of India’s 74th year, I think of the idea of India that we committed to. A sovereign, secular democratic republic – where what would separate independent India from the colonized nation would be the ethos of democratic constitutionalism. Governance that would be according to procedure established by law, overseen by the people’s representatives in Parliament, adjudicated by an independent judiciary, and implemented by an accountable Executive.
The security (strands of the security net) fabric of this independent country are its armed forces, para-military, police, independent courts, and its many intelligence agencies. Amongst those many agencies, are the court favourite - the Central Bureau of Investigation (CBI), the Research and Analysis Wing (RAW) which primarily analyses external threats, the Intelligence Bureau which is responsible for internal security, the Directorate of Revenue Intelligence, and even the tantalizingly named Joint Cipher Bureau. There are about fifteen such agencies including the three military branches have their own intelligence services, Central Police Organizations (CPO’s)Armed forces, like the Border Security Force, the National Security Guard, the Army, the Central Reserve Police Force or even the new National Investigation Agency are established and regulated by statutes. Indian intelligence agencies are not established, funded or regulated by law. The exception to this norm is the CBI, which is perplexingly established by the Delhi Special Police Act, which by virtue of its territorial operability, would render any CBI operation outside Delhi state to be illegal.
Sometime ago while on a panel that was discussing the need for regulating our agencies, I listened as a former head of the IB looked at us civilians, and explained patiently that intelligence was a ‘gentleman’s profession’ operating in a very “tough neighbourhood. “A former head of the RAW nodded in agreement, and concluded that only when these ‘honorable gentlemen’ were ready, should regulation be contemplated.
The call for regulation of our agencies, includes demands for oversight, accountability, efficiency and protection for officers from within the agencies, i.e. whistleblowers. It includes a formal accessible recruitment and appointment process, consistent training while in service, hiring of those with special language and analysis skills. All these processes are lacking at the moment, and is reflected in both a lack of operational and infiltration capabilities as well as a fall in the number of suitable recruits.
Then Vice President Hamid Ansari delivering the fourth R.N Kao memorial lecture organized by the RAW, in remembrance of their founder. The Vice- President argued that the present system of oversight of security and intelligence being limited to that by the Executive did not meet the requirements of good governance in an open society. He further declared that that there was no reason why a democratic society like India should not have a Parliamentary Standing Committee akin to other democracies, to ensure financial and performance accountability of the services.
The accountability of intelligence services has been paid much lip-service in India, but, has generated very no reform of any consequence. The content of democratic accountability of intelligence services has manifested in different forms. Hans Born and Ian Leigh in their book titled ‘Making Intelligence Accountable’ state that democratic accountability is comprised of executive control and parliamentary oversight, as well as inputs by civil society. The authors distil a consensus among the OECD, the UN and other international entities to explain that the objective is that security and intelligence agencies should be insulated from political abuse without being isolated from executive governance.
In the last twenty years litigation at the European Courts on issues of privacy and domestic cases against illegal wire taps- have resulted in extensive regulation of intelligence services. For instance, in the case of Harman and Hewitt v UK, decided by the European Court in 1986, the lack of a statutory basis for the UK Security Service (MI5, which deals with domestic security) was held to be fatal to the claim that its actions were in ‘accordance with the law’ for the purpose of surveillance and file-keeping contrary to the right of privacy guaranteed by the ECHR. As a consequence of the ruling the UK passed the statutory charter for MI5 (the Security Service Act, 1989) and soon after passed the Intelligence Services Act 1994 for other intelligence agencies.
Similarly, to ensure compliance with Article 21 of the Constitution of India, that provides that ‘no person can be deprived of life or personal liberty except according to procedure established by law’- legislation is warranted. Else, such deprivation is patently unconstitutional and illegitimate. (what about right to privacy, and domestic political snooping to aid the ruling party, whichever?)
Countries with comparable structures of parliamentary democracies, like Australia and the United Kingdom have oversight mechanisms. In the UK, MI5 like India’s IB falls within the Home Ministry. (RAW is part of the Cabinet Secretariat and reports notionally to the Cabinet Secretary, and now to the NSA, both of whom report to the PM). And via the Intelligence Services Act, 1994, Parliament’s Intelligence and Security Committee (ISC) reviews the budget, administration and policies of the intelligence agencies in the UK. However, MI5 requires no separate approval before undertaking a new operation.
The Australian Security Intelligence Organization works closely with the Australian Protective Service, both agencies falling under the Attorney General. A Parliamentary Oversight Committee, in addition to a separate intelligence officer in the PM’s office can initiate investigation of the agencies.
There are various oversight mechanisms used by other democracies including: statutory bodies comprising independent experts appointed by the Executive (Canada), to more familiar parliamentary committees with finance, administrative and policy oversight functions (UK, Norway), to all powerful Congressional oversight mechanisms that include review of appointment processes (USA). ( The USA even has a Intelligence Committee that approves major operations? I think?)Even countries that are relatively young in terms of their life spans as democracies, like Argentina, Poland and South Africa all have Parliamentary Oversight Committees.
India stands alone among the worlds’ democracies for having intelligence agencies that are entirely unregulated and unaccountable. The Saxena Committee Reforms, not implemented largely due to bureaucratic infighting, and use of the Official Secrets Act often prevents national security issues from being analysed appropriately.
In India, there is much controversy and critique on the lack of an established process of appointment for both potential officers and the head of the agency. It is imperative that legislation must establish the process of appointment, including minimum qualifications. Such process must be subject to scrutiny by Parliament or atleast the leader of the Opposition. Further, like other positions of authority and responsibility- tenure and criterion for removal must be clearly specified by law. This not only assures quality of candidates, but, also acts as insulation from pressure by the government, and places a premium on merit and not connections and pliability.
At present there is little or no redressal in place both for citizens affected by actions of intelligence entities and for employees within the agencies, including whistle blower protection mechanisms, There are different approaches that have been adopted by various countries, including an independent ombudsman as in New Zealand who has the power to address complaints against the agency, specialist tribunals (United Kingdom), parliamentary oversights committees that deal with complaints against the agency (Germany and Norway) and the court system itself (US).
Independent India, its Constitution and its people, warrant an accountable, efficient and well- trained intelligence community. Anything less impacts the rule of law in this country, legitimizes zones of unaccountability, which further fuels a culture of impunity and unconstitutionality.
Dr. Menaka Guruswamy is a Senior Advocate at the Supreme Court of India. She was educated at the National Law School, Bangalore, Oxford University and Harvard Law School.
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