Why the NCTC cannot be set up at the cost of states

By Arun Jaitley

India has been on the radar of terrorism both domestic and cross-border for the past three decades. We successfully tackled terrorism in Punjab. The situation in Jammu & Kashmir is slightly better. But its potential to re-erupt on the slightest provocation is always there. There are parts of North-East which are disturbed due to insurgency.

A decade ago we used to proudly proclaim that India is uninfluenced by any Jehadi domestic modules. That is no longer the situation. We have a western neighbour who through State and non-State actors has a history of fomenting trouble in India. India thus needs a concerted approach against terror. The war against terror must be uninterrupted – it should be uninterruptable.

Home Minister Sushil Kumar Shinde. PTI

Home Minister Sushil Kumar Shinde. PTI

There are some interesting chapters from the recent history which demonstrate the UPA’s soft approach on terror. When the NDA government enacted the Prevention of Terrorism Act the Congress Party opposed the legislation as being anti-minority and not anti-terrorism. The Pota was an effective instrument for investigating and punishing the terrorists. The UPA election manifesto promised the repeal of Pota. Besides the BJP, the security establishment of the country was uncomfortable with the repeal of Pota. The UPA was therefore compelled to amend the Unlawful Activities (Prevention) act wherein all but two of repealed provisions of Pota were incorporated. The two provisions which were not incorporated related to the bail and admissibility of confessions. When P Chidambaram took the charge of the home ministry, his initial comments about Maoist violence appeared to be encouraging. But one article by the UPA chairperson in the Congress party’s in-house journal diluted his enthusiasm. He changed the track. The burden of his new song was that fighting Maoism was the responsibility of the states and the Centre would merely help the states in intelligence capacity building and providing security forces.

It is the combined responsibility of the Centre and the states to combat terrorism. Terrorism impacts the sovereignty of India. It also impinges on both public order and law and order. Under our constitutional scheme the defence of India is the responsibility of the Central government. Public order and police fall within the domain of the states. The fight against terrorism can and must co-exist with federalism. It would be meaningless to debate an imaginary ‘federalism versus terrorism’ issue.

There could be no possible objection to a National Terrorism Counter Centre but its powers and jurisdictions must be within the constitutional framework. Collecting cross-border intelligence and keeping an eye on the activities of those who foment trouble from outside is exclusively within the domain and the capacity of the Central government. Terrorist modules have inter-state operations. Collection of national intelligence and transmitting relevant information to the states is also the responsibility of the Central government. The Centre has already been empowered through the creation of a National Investigative Agency which investigates offences among other laws under the Unlawful Activities (Prevention) Act. The establishment of an adequate Collection and Transmission mechanism is understandable. Why does the Central government need to give police powers to the NCTC which would otherwise be under the domain of NIA or the state police?

The NCTC is proposed to be set up under the Intelligence Bureau. Its’ director will report to the director of Intelligence Bureau. Intelligence agencies should not get into police powers. The American NCTC deals with only strategic planning and the integration of intelligence without any operational involvement. The joint terrorism Analysis Centre plays a coordination role. The Indian proposal is to have an agency which will have the intelligence functions and would also conduct operations. It is this power being vested in an intelligence agency to the detriment of the law and order powers of the state which the state governments are rightly objecting to.

Why should the Central government not trust the states? In the operational functions the NCTC can always coordinate its activities with the state police. Is there any reason to doubt that the State police in India cannot be trusted for the anti-terror functions. In extraordinary cases the NIA can also be involved in such functions.

It would be dangerous to vest the powers of search, seizure and arrest i.e. the operational powers to an intelligence agency. The Intelligence Bureau functioning is secret. It is a non-statutory body. Its’ budget and spending has no accountability. Of late, the IB as an important national resource has shifted its’ focus predominantly from security related activities to political and quasi-political activities. I am strongly of the opinion that this tendency has to be curtailed. The IB’s functions should not be political or investigative. It is an agency which must restrict itself to intelligence collection, processing and transmission. That is what the NCTC must do.