Court’s Order on Intel Agencies Means Snooping Will Continue

India should learn from the West where legislative oversight of intel agencies has worked well, writes Aditya Sinha.

With the Supreme Court’s dismissal of Prashant Bhushan’s November 2012 PIL, seeking legislative oversight and auditing by the Comptroller and Auditor General (CAG), all resistance to encroachment on citizen privacy and civil liberties has melted away.

The government, which has a clear preference in the liberty vs security debate, told the court on 20 August 2015, that the three intelligence agencies in question – the domestic-oriented Intelligence Bureau (IB), the external Research and Analysis Wing (R&AW) and the National Technical Research Organisation (NTRO) for signal intelligence – had sufficient internal audit mechanisms. It also opposed legislative oversight of the agencies. The court duly declined to interfere in the country’s security apparatus.

News has focussed on the auditing. The IB is said to have an annual budget of around Rs 700 crore and the R&AW, it is speculated, has a budget of about Rs 2000 crore. The NTRO relies on heavy hardware (it has customs exemption on imports) but even then approximate budgeting numbers are difficult to estimate.

India Not Ready for Legislative Oversight

The agencies are squeamish about their operational funds, known as the Secret Service Fund, estimated at about six percent of the total budget of each agency. It is a misconception that huge secret monies are involved, says an insider; the IB’s operational fund for instance, spread across the country does not amount to more than five-star coffees or fancy dining for sources.

In “Kashmir: The Vajpayee Years”, former R&AW chief, AS Dulat, revealed that money was spent on “buying” separatists and militants (and that it was more effective than a “kill policy”), and that money has played a big role in Kashmir since the 1950s. Such expenditures, however, are not the norm; in the IB, special sanction is required even to pay off militants.

It is not the money that is a big deal. “It’s all linked to oversight,” says Dulat. “Once that happens, auditing and other things will follow.”

Though the USA and Britain both have Congressional/Parliamentary oversight, such is not the case in India, though it was first proposed in 1990 by a BJP MP, Jaswant Singh, while he headed Parliament’s Estimates Committee. Once the BJP attained power in 1998, he forgot about legislative oversight; even the Kargil Review Committee skirted the oversight issue in its report on the intelligence failures that led to the 1999 skirmish.

“India is not yet ready,” says Dulat about legislative oversight. “It’s not like the US, which has the Senate Select Committee on Intelligence. Here, things will come out in the public.”

How It Happens in the US

The US Select Committee was set up in 1976 as a permanent continuation of the Senator Frank Church committee hearings into excesses by the US agencies. This legislative oversight has been useful to the intelligence community. George Tenet, the second-longest serving CIA chief, came to the agency after serving as a staff director of the Senate Committee.

This committee also facilitated the government’s passage of the PATRIOT act in the wake of the 9/11 attacks, which expanded intelligence powers.

Keeping An Eye on the Spies

• Intelligence agencies are not only squeamish about funds, insiders say only paltry sums exchange hands, ruling out the possibility of an audit.
  
• The Kargil Review Committee had kept mum on the issue of oversight, despite the fact that intelligence failure led to the 1999 skirmish.
  
• Oversight panel in the US ensures efficient working of the intelligence agencies; it has in fact extended their mandate through the Patriot Act.
  
• The Supreme Court doesn’t answer the questions related to the powers given to the intelligence agencies to snoop on citizens.
  

No End to Snooping

Bhushan’s PIL also called for de-linking the National Security Advisor from intelligence oversight by creating a National Intelligence Advisor, and for the agency chiefs to provide quarterly briefings to a parliament committee. The PIL was motivated by reports of corruption – a Rs 800 crore procurement scam in the NTRO – and long-running allegations of political misuse of the intelligence apparatus.

Bhushan was also concerned about technological advances in eavesdropping and the carte blanche given to agencies to snoop on citizens. There are concerns all over the world on this score – not only was the US community riled by revelations of domestic snooping by whistleblower Edward Snowden (who said only 1.2 percent of such intelligence was actionable), but even tech giant Apple is currently embroiled in a dispute with the FBI on its refusal to break open a terrorist’s phone as that would make iPhones vulnerable to government surveillance.

What About the Privacy of Citizens

The Supreme Court judgement, not to mention the intelligence community’s views, are out-of-sync with such debate in the West – even though the debate rages here as well. In India, the Software Freedom Law Centre finds that there are about one lakh phone taps a year.

And lost in the din of the current culture wars was the news this week of the setting up of a National Media Analytics Centre, a cyber-snooping agency. The government seems contemptuous of legislative oversight, and the court’s decision shows there is no resistance to the government’s creeping encroachment on individual rights.

(The writer is a senior journalist and co-author with AS Dulat of “Kashmir: The Vajpayee Years”)

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