New Delhi: Bihar Chief Minister Nitish Kumar today said that NCTC “violates” the principle of federalism and the structure adopted for it suffers from “serious and basic flaws”.
Referring to Emergency days, Kumar said that if such powers are given to a secret intelligence agency of the Central government, they will remain prone to misuse against political rivals and asked the government to immediately withdraw it.
“One does not have to go far back in history to recall that eminent political leaders were branded as threats to national security and were put behind bars during the emergency of 1975-77,” Kumar said.
He raised several issues related to jurisdiction, accountability and power to investigate that the Centre proposes to vest in the NCTC and said that it will be prone to gross misuse.
“I am disturbed to see the sacrosanct principle of federalism being violated in course of Centre’s anti-terrorism onslaught. The order issued to set up NCTC also suffers from several legal and procedural defects,” he said, addressing a meeting of chief ministers on the constitution of NCTC in New Delhi.
Holding that excessive interference from Centre in matters of day-to-day governance is against the spirit of the Constitution, Kumar said the significant area of control of law and order and policing left with the states is now increasingly under attack from the Centre and “NCTC is the latest instrument of interference in this context”.
Noting that it has been an established practice and sacrosanct principle all over world that secret intelligence agencies are not given powers to arrest, he said, adding that, “None of the post-independence Governments did so till date.”
He said the structure adopted for creation of NCTC suffers from a serious and basic flaw as it has been created within Intelligence Bureau(IB) which is a secret intelligence organization without any accountability to Parliament or courts regarding its work.
Kumar said that he was of the considered opinion that the order issued regarding constitution of NCTC should be “withdrawn immediately”.
He said that creating a body through executive order, clothing it with legal powers of operations without making it answerable to the courts for the consequences of its actions and to cap it all keeping this agency under an intelligence agency will be prone to gross misuse.
Kumar noted that the home ministry has made it clear that NCTC is not an investigating body and only an all encompassing body for coordinating and sharing intelligence.
He also pointed out that in the existing criminal justice system in the country, only investigative agencies are answerable to courts and these are creatures of legislation.
“However, in the present scheme of things, a body created by the executive instruction of GoI is sought to be clothed with legal powers which have the potential of impinging upon the life and liberty of citizens of this country, which is normally done only by agencies created by legislative action and answerable to the court,” he said.
Terming it a “serious legal concern” which needs to be addressed, the Bihar chief minister wondered “what is the need, then, to create new outfits like NCTC with provisions which arbitrarily trample upon Constitutional safeguards to protect the highly delicate balance of power between the Centre and the States?”
Kumar said that if the Centre still deemed it prudent to form an outfit like NCTC within the IB, then it must also be given powers to investigate the cases.
“Further, any such outfit, if it has to be created at all, must be set up through legislation by Parliament. Another feasible option would be empowerment of NIA to arrest as well as investigate all terror related cases.
“In any case, everything should be done within the legal frame work of law while ensuring accountability before the Parliament and respect to the federal structure of Indian polity,” the chief minister said.