ARE
INDIAN INTELLIGENCE AGENCIES ABOVE THE LAW?
By
Maj. Gen. V.K. Singh
The
recent report of phone tapping of prominent politicians by the NTRO has
highlighted, once again, the urgent need to review the functioning of our
intelligence agencies. It clear from the
revelations of the officials who were involved in the operation, as reported in
the Outlook journal, that the NTRO was intercepting cell phone calls without
any valid authorization. This is clearly illegal. There is no reason to believe
that the other intelligence agencies, such as the IB and RAW, have more respect
for the law than the NTRO, which has drawn a large number of personnel form the
two older agencies. Are our intelligence agencies above the law, or what is
even worse, a law unto themselves? It may appear implausible to the common
citizen, but is not far from reality.
Intercepting phone calls is not a new phenomenon. It
has been done by government agencies ever since Alexander Graham Bell made the
first telephone in 1876. During the British Raj, the CID regularly tapped the
telephones of political leaders in the forefront of the freedom struggle. However,
telephone tapping even under British rule was not done indiscriminately, as is
being done now. After the Supreme Court ruling in 1997, one thought government
would respect the law. Apparently, intelligence agencies have different views
on the subject. What is the reason for this? I think it has something to do
with the mindset and ethos of the intelligence agencies, developed over several
decades.
During my short stint with RAW I noticed that most
officers did not give too much importance to niceties such as privacy laws and
court rulings. An incident that I have mentioned in my book reveals the state
of mind of our intelligence agencies. There was a plan to intercept the
undersea cable running from Europe to South East Asia at the point where it
touched India in Bombay. When I expressed my reservations on the ground that we
really had no justification to do this, since it carried traffic between
countries other than India, I was told that almost everything that the agency
did was illegal! What about the embarrassment that it would cause to India when
the International Telecom Union discovered what we were doing? VSNL, the agency
manning the hub, was naturally reluctant to permit interception of the cable,
but they were arm twisted by citing national security. This is a ploy that
never fails. An appeal to patriotic instincts is frequently used to convince or
even coerce fence sitters and objectors to overcome their scruples. After all,
no one wants to be dubbed as anti national. I am not sure whether the proposal
finally came through or not. I wonder if
Ratan Tata was even aware of what was being planned – if he was, I am sure he would
have nipped it in the bud.
National security has become a panacea of
all ills. To add weight, one only has to add words such as sovereignty and
integrity. Unfortunately, very few people understand what these words mean. This
applies even to the political leadership and the judiciary. In 1967, the Lok
Sabha was debating amendments to the Official Secrets Act of 1923. Shri V.C. Shukla, who moved the Bill, did not
even comprehend the implication of the cleverly worded amendment, which would
make it more draconian than it was under British rule. One member who did was Shri
Nambiar, who had been convicted under the Official Secrets Act in 1948. He felt
that the new wording of section 3: ‘which is likely to affect the sovereignty
and integrity of India, the security of the State or friendly relations with
foreign States’, was very loosely worded. “Who will decide whether a particular disclosure affects the sovereignty
and integrity of India”, he asked? In the event, all the amendments
proposed by members were negatived and the Bill was passed.
What exactly is national security? To understand the
term, let us consider the example of a man who lives in the wilderness or
inherits a piece of land where he sets up a homestead. The first thing he does
is to build a fence around his property, to keep out wild animals. If that is
not enough, he keeps a dog and also buys a gun. To ensure that others living
nearby come to his aid when needed, he makes friends with his neighbours. To
feed his family, he grows crops on his farm, or keeps a flock of sheep or
goats. If he is skilled with his hands, he becomes a potter, carpenter, or
blacksmith. Let us replace the man by a community or a nation. The fence, dog
and gun become the armed forces, para military and police which provide
physical security from enemies outside and within. The good relations with
neighbours are nothing but treaties and agreements with other countries, a part
of foreign policy. The crops, animals and produce that sustain his family are
the same as the country’s agricultural production, industrial base and a sound
economy. These factors not only provide security but also sovereignty, which
means the freedom to take independent decisions and do what one wants without
seeking help or approval from others.
One may ask, where does intelligence come in the
national security paradigm? Though it does not contribute directly to national
security, intelligence is important in that it assists in timely assessment of
threats to the nation’s security, both external and internal. Unless we have
good intelligence, we cannot protect our borders and our people, except at great
cost. Intelligence failures almost always translate into loss of life, as
happened in 1962 with China, in 1999 at Kargil and on 26/11 at Mumbai. However,
the role of intelligence in national security is minor, compared to that of military
strength, foreign relations, industrial capacity and economic well being. Then
why are intelligence agencies sometimes referred to as secret agencies? I think
it has more to do with the secretive manner in which they function, rather than
secrets.
Take the example of an agency like the NTRO or RAW, which deal with external
intelligence. Whatever secrets they have concerns foreign countries, whose disclosure
can harm them, not India. Unlike the defence forces, ISRO or the DRDO, they
have little that can be of interest to a foreign country. The only reason for
keeping such information under wraps is to protect the source. In case such
information is made public, accidentally or otherwise, it is only the source
which is compromised, with little effect on national security. An example was
the tape of the famous Musharraf – Aziz conversation during the Kargil war,
which was made public to show Pakistan's complicity. It did result in the
drying up of the source of the intercept, but there was certainly no effect on
our national security.
In
India, the term ‘security forces’ is used indiscriminately, not only by the
media and the general public but also by politicians and bureaucrats. During a
recent hearing before the CIC, an official of the Ministry of Home Affairs
stated that the Government takes cognizance of offences only when it is brought
to its notice by security agencies like the IB, CBI, etc. I was constrained to
point out to the official that none of these agencies were security forces,
which includes, apart from the armed forces of the Union, the para military
forces and the police. The CBI and police (the latter has a dual role) are
investigation agencies, while the IB and RAW are intelligence agencies. A very
simple rule is to remember that security forces are always uniformed and armed
i.e they carry weapons openly, while the others do not.
That
the confusion about security and intelligence prevails even at the highest
level is apparent from the fact that for several years we had an ex
intelligence man as the National Security Advisor. Officers in the armed
forces, foreign service and police spend a life time learning the finer points
of external and internal security. It is unrealistic to expect a person who has
dealt with intelligence all his life to become an expert on national security
overnight. Intelligence officers rarely attend the National Defence College,
where selected officers from the armed forces, IAS, IPS, IFS and other central
services are trained. Significantly, the NSA in the USA is a four star general
from the Marine Corps. Mercifully, the situation has recently been corrected
and we now have a skilled professional in Shiv Shankar Menon looking after
national security. If this change had occurred earlier, after the departure of J.N.
Dixit, I doubt if the NTRO would have been tapping phones the way they have
been doing for several years.
The
problems with intelligence agencies stem from lack of awareness about their
role and functions by those responsible for their supervision. Ministers and
Secretaries are either too preoccupied with other matters or feel it prudent to
leave such ‘sensitive’ issues to experts, so that their backs are covered in
case things go wrong. With increase in terrorism,
nobody wants to risk disregarding the advice of intelligence czars, who are not
accountable to anyone. The heavy veil of secrecy that covers our intelligence
agencies hides little else than their shortcomings. In spite of the
astronomical sums spent on them, they have utterly failed to provide
information about a single terrorist attack in recent years, let alone external
threats from China in 1962 or Pakistan in 1999. Yet, no one has been sacked.
They are not subject to parliamentary oversight or financial audit. Is it any
wonder that they have become a law unto themselves? They are the only public
institution which is not accountable to the public, through Parliament. Their
sins remain hidden due to the mantle of secrecy that they have deliberately
covered themselves with. It is high time the people who pay their salaries –
the Indian tax payer – held them accountable.
6 June 2010
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