First, counter the states’ concerns
Suhas Chakma on why NCTC should not become the alibi for central intervention
IN THE light of opposition from non-Congress ruled states to the National Counter-Terrorism Centre (NCTC) Bill, the Ministry of Home Affairs (MHA) has announced a number of overtures. The MHA has reportedly proposed that state DGPs will become exofficio members of the NCTC and as per the proposed Standard Operation Procedure (SOP) ‘in the normal course, arrest, search and seizure shall be carried out by the Anti-Terror Squad (ATS) or other police units of the state concerned’ while in situations ‘where immediate action is required’ on intelligence inputs, officers of the Operations Division of the NCTC may ‘affect arrest, search or seizure without informing the local police’. The SOP further provides that after effecting arrest or search or seizure, the NCTC team shall, at the earliest, hand over the arrested person(s)/seized material to the nearest police station together with a written statement giving the details of the case. The operations wing of the NCTC shall ‘submit a report’ to the Director of the NCTC, the Director of Intelligence Bureau and the Union Home Secretary and the DG of the state police to ensure oversight.
These overtures of the MHA still leave three primary questions unanswered. First, why cannot the National Investigating Agency (NIA), which has already been given the power to arrest, search and seize all over the country, including in Jammu and Kashmir, perform these tasks? Second, if the NCTC team were to hand over the arrested person/seized materials to the local police, does it mean that the role of the NIA has come to an end? Third, whether the operations wing of the NCTC is to report to the Director of the NCTC, the Director of Intelligence Bureau, the Union Home Secretary and the DG of the state police, which is the centralised authority to control and coordinate counter-terrorism measures of all the organisations responsible for counter terrorism measures including the Intelligence Bureau, Research and Analysis Wing (R&AW), the ATS etc.
All these questions point to the NCTC adding to multiplicity of organisations like IB, R&AW, Multi-Agency Centre (MAC), State Multi Agency Centres and a number of state intelligence agencies.
The objection of the states ruled by the non-Congress parties — Bihar, Gujarat, Odisha, Karnataka, Punjab, Tamil Nadu, Tripura, West Bengal — that the NCTC Bill infringes the sacrosanct principle of federalism by usurping state police’s power to arrest, search and seize is a belated one. The NIA Act of 2008 not only empowers the central agency to arrest, search and seize but also provides for trial of offences in the NIA Special Courts including in Jammu and Kashmir, where the laws of India cannot be extended under Article 370 unless enacted by the State Assembly.
The NIA, complemented by the regional hubs of the National Security Guards (NSGs), is sufficient to address counterterrorism challenges. As and when the NSG guards are required to intervene to address immediate terrorist attacks, it is given that the NIA and state police too will intervene and issues such as arrest, search and seizure will be effectively addressed.
That India’s counter-terrorism measures have been plagued by the lack of centralised control and coordination stood exposed during the Mumbai attack. Though the MAC has reportedly provided specific inputs based on information shared by the United States about the impending attacks on Mumbai through the sea, the Coast Guard failed to respond with the necessary alacrity. In fact, there was reportedly no senior officer — i.e., of the IPS cadre — in the control room of the Ministry of Home Affairs on the fateful night of 26/11.
WHILE THEN Home Minister Shivraj Patil and Maharashtra Chief Minister Vilasrao Deskmukh resigned, what accountability has been established with respect to the officers is not known. After P Chidambaram took over as home minister, he directed the RAW chief to report him against the then established practice of reporting to the Prime Minister only. Chidambaram further ensured that the control room of the MHA is manned by a senior officer 24/7. Yet, these measures fell short of establishing an authority to ‘control and coordinate’ all counter-terrorism measures. The fact that the NCTC is being empowered to arrest, search and seize instead of the state police or the ATS indicates the lack of centralised control and coordination. Immediacy of the situation is an alibi.
There was no opposition to the MAC as it did not infringe the domain of the states. The home minister is right now the only centralised control and coordination authority. The Union government must ensure conformity with the rule of law, including compliance with the Constitution.
Suhas Chakma is director of the Asian Centre for Human Rights.