BackEnding the abuse of intelligence gathering
Intelligence operations in India need a strong oversight mechanism
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The cabinet on Thursday approved setting up an inquiry commission to “look into the incidents of physical/electronic surveillance in the states of Gujarat and Himachal Pradesh, and the National Capital Territory of Delhi, allegedly without authorization". It marks another missed opportunity to end the abuse of intelligence machinery—in all forms, physical and electronic—for partisan purposes in India.
The setting up of the commission—under the Commissions of Inquiry (CI) Act, 1952—should be seen in perspective. There are serious allegations against the Gujarat government for using the state’s intelligence and police resources to snoop on a woman. This was allegedly done at the behest of chief minister Narendra Modi. In response, the state government on 26 November appointed a two-member inquiry commission, with a retired judge of the Gujarat high court and a former additional chief secretary of Gujarat as members.
Allegations of partisan use of a commission of inquiry are real and cannot be ruled out.
The lead party of the ruling United Progressive Alliance—the Congress—and the lead opposition party, the Bharatiya Janata Party (BJP), are locked in a bitter struggle for power in the national elections due by May.
In fact, the extension of the inquiry to Himachal Pradesh and Delhi is a fig leaf as section 3(1)(b) of the law bans the setting up of competing commissions on the same subject by the Union and state governments unless the scope of the inquiry is extended to two or more states.
That kind of bickering, however, is normal when contentious subjects are investigated by any government. The Union government could have easily used this chance to inquire into the real fears of abuse of the intelligence apparatus in recent years.
It could have used this opportunity to device an overarching framework that would have allowed the gathering of intelligence for security purposes while installing safeguards to prevent the invasion of privacy of citizens. It did not do that.
There have been many instances of such abuse in the recent past.
Under the last army chief V.K. Singh, the army operated a shadowy intelligence unit called the technical support division that allegedly snooped on people it had no business spying on. In response to an internal army enquiry, the Union government has put a near blanket ban on the army establishing new intelligence units unless they are in the country’s border areas.
Another example is that of the rather lax provisions to tap phones. Permission to carry out interception of these devices rests with the Union and state home secretaries. In almost all democracies, this permission lies with judicial authorities where the executive has to build a solid case for doing so.
None of these issues have been raised. The government issued a bland one paragraph press note without specifying the terms of reference of the commission. Now these may be mentioned later when the formal appointment of the inquiry commissioner is carried out. Given the sensitivity and importance of the issue, the government should have been upfront about it.
It is high time the Union government and the political class in general learnt the value of respecting individual privacy. No democracy today—except the US—wantonly violates the privacy of citizens in the name of security. This does not mean their intelligence agencies cannot carry out their work or protect national security. Even in the US, there are specialized courts—for example, under the Foreign Intelligence Surveillance Act of 1978—where executive agencies can present their case, in camera, to judicial authorities. This safeguards the interests of citizens while ensuring that normal intelligence gathering continues.
India does not have to reproduce what other countries are doing. It can evolve its own procedures. The appointment of an overarching inquiry commission could have been the first step in that direction. That chance was missed on Thursday.
Should India institute judicial or legislative oversight over intelligence gathering? Tell us at views@livemint.com
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