Post-Court’s Order, Time Now To Give Legal Cover to Intel Agencies

Many countries have given legal cover to their intel agencies, it’s now India’s turn, writes Vappala Balachandran.

After the Supreme Court’s recent order on intelligence agencies, government should now think of providing legal cover to our intelligence agencies. (Photo: iStock)

A media report on 23 February said that the highest court had ruled that “Intelligence Agencies cannot be made Accountable to CAG”. Another headline said: “Supreme Court Junks Plea Seeking to Make Intelligence Agencies Accountable”. A third report said that “Putting intelligence agencies IB, RAW and NTRO under judicial scanner may ‘dent’ national security”.

The CPIL’s (Centre for Public Interest Litigation) proposal of placing intelligence agencies under the audit control of the CAG can never be accepted since these organisations work secretly to further national security interests.

Their finances should never be subjected to public audit since it would reveal the sources and method of operations. The second statement of CPIL, as reported by the media, that they are exercising “police powers” without backing of any law, is also not correct. Indian agencies have never exercised police powers – they have only supported authorities on law and order, by way of collecting intelligence to make the nation safer.

A legal basis for any arm of the government would clearly define its charter, responsibilities as well as its accountability. (Photo: iStockphoto)

Law to Shield Our Intel Agencies

Do we really need a law to regulate our intelligence agencies? Yes – here I would prefer to use the word “empower” rather than “regulate”. A legal basis for any arm of the government would clearly define its charter, responsibilities as well as its accountability.

I wish the CPIL had used better arguments asking for a statutory basis for the functioning of our intelligence agencies rather than complaining about their powers or suggesting that they are put under CAG’s audit (since they are not  public departments).

First and foremost, our intelligence agencies need legal protection for doing their security-related work covertly by using unconventional methods. Our successive governments want them to undertake “bold” covert operations yet they do not offer them basic legal protection beyond what is available for any government official from, say animal husbandry or irrigation department.

This is not adequate as we saw recently in the case of a senior Intelligence Bureau official who is still facing prosecution. What should be done is try preventing abuses by rogue elements among intelligence agencies who misuse secret channels for partisan considerations, which is detrimental to national security.

Lessons From Other Countries

• Canada: Intelligence function taken away from police in 1981; a statutory civilian agency created in 1985.
  
• South Africa: Legal protection extended through the Intelligence Services Act in 1994.
  
• Australia: Legal basis given to its intelligence agency in 2001.
  
• UK: Legal protection granted by passing laws in 1989 and 1994.
  

What should be done is try preventing abuse by rogue elements among intelligence agencies who misuse secret channels for partisan interests. (Photo: iStockphoto)

Preventing the Abuse of Intelligence Gathering

The removal of the intelligence function from the National Police (RCMP) in Canada, first recommended by the MacKenzie Commission in 1968 was finally made effective only in 1981 when the McDonald Commission highlighted the RCMP abuses in intelligence gathering. It resulted in creating a statutory civilian agency in 1985.

South Africa passed their Intelligence Services Act in 1994 when they set up new intelligence services after the end of the Apartheid regime while Australia, which created their ASIS (Australian Secret Intelligence Service) through an executive order in 1952, chose to give it a legal basis in 2001 by Intelligence Services Act 2001.

Although USA had codified CIA’s work in 1947, the Nixon era’s abuses resulted in their Congress wresting decisive control from the executive over their intelligence agencies. The British services were pressurised to pass laws in 1989 and 1994 due to staff betrayals, and also pressure from European Conventions to subject even security organisations to operate within the legal framework.

(The writer is a former Special Secretary, Cabinet Secretariat, and a member of the High-Level Committee which enquired into the police performance during 26/11 Mumbai)