India: National Confusion Over NCTC Terror By Centre – Analysis

By Ajai Sahni

The National Counter-terrorism Centre (NCTC) is an ill-conceived, redundant and derivative, vanity project, which aspires to imitate its namesake in the US, without the strength, the sinews, the resources or the constitutional context that would make such aspirations attainable. And if the idea itself was bad, its execution has been infinitely worse, tainted by deception and sleight of hand, as the Union Ministry of Home Affairs’ (UMHA) seeks to arrogate powers specifically excluded from its jurisdiction by the Constitution.

UMHA’s National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order, 2012, has, unsurprisingly, run into trouble, with no less than 14 State Chief Ministers opposing the Centre’s move to create the NCTC, effective March 1, 2012. The Chief Ministers have rightly objected to the absence of any consultative process, as well as to specific clauses of the Order, principally including the power of arrest and seizure conferred upon the proposed NCTC’s Operations Division, purportedly under Section 43A of the Unlawful Activities (Prevention) Act (UAPA), 1967.

In his letter of February 24, 2012, in response to the objections voiced by some of the Chief Ministers, Union Home Minister (UHM) P. Chidambaram has artfully argued that the powers conferred on the NCTC derive from the UAPA Amendments of December 2008, and that, when these were brought to Parliament, “There was no demur or opposition to either section 43A or the other amendments”. UMHA officials have argued, further, that when similar powers of arrest and seizure were given to the National Investigation Agency (NIA), through its empowering Act of December 30, 2008, there were no objections regarding any perceived infringement of the Constitutional distribution of powers between the Union and the States. In other words, the States were now presented with a fait accompli and were being told, facetiously, that, having failed to object to the Centre’s jurisdictional enlargement in the past, they had lost their right to do so in the present and the future.

This, however, is evidently not the position UHM Chidambaram projects to his closer confidants. Indeed, if evidence of bad faith on the part of the Centre was required, it is provided by the Wikileaks disclosures regarding Chidambaram’s alleged conversation with FBI Director Robert Mueller at a meeting in New Delhi on March 3, 2009. According to the record cabled by US Chargé d’Affaires Steven White, “[Mr. Chidambaram] conceded that he was coming ‘perilously close to crossing constitutional limits’ in empowering the NIA. He explained the concept of a ‘federal’ crime does not exist in India, with law and order the responsibility of the State Governments.” Further, Chidambaram “opined that the NIA law would be challenged in court because it ascribes certain investigative powers to the NIA which may be seen to conflict with responsibility that is exclusively with the States.”

D. Raja of the Communist Party of India rightly notes that, “The NIA Act and UAPA Amendments were passed by Parliament in the weeks after the Mumbai attacks when there was an atmosphere of panic.” This, indeed, is the essence of the Centre’s subterfuge – in an atmosphere of near hysteria and complete suspension of critical faculties in the wake of a major terrorist attack, the States are brow-beaten into acquiescence, and then bound to their creeping abdication of power through subsequent and arbitrary orders by the Centre. Even now, most of the Chief Ministers adopt an extremely tentative tone in voicing their objections to the NCTC Order, prefacing these with an extended declaration of their shared concern on the urgency and necessity of fighting terrorism. Indeed, the Centre has sought to reduce the State’s objections to the lack of a consultative process, rather than any substantive clauses of the NCTC Order.

The powers of arrest and seizure, however, are not the only clause the States have reason to object to. Other clauses that would rightly attract Constitutional scrutiny include:

Para 3.3 of the Order states: “NCTC shall have the power to set up Inter-State Intelligence Support Teams (INSIST)”. Any mandatory State component or operation in State jurisdictions of such INSISTs would trample Constitutional boundaries.

Para 3.4 states: “NCTC shall have the power to requisition the services of the National Security Guard (NSG) or any other special forces.” The question of territorial jurisdiction where they are deployed remains open. It is also not clear whether “any other special forces” also include such Forces raised by the States, over which no Central Agency can exercise such direct command.

Para 3.5 confers “… the power to seek information, including documents, reports, transcripts, cyber information and information of every other kind in whatever form…” No Central Agency can have mandatory access to such information held by the States.

Para 5.1 imposes the duty on “all civil authorities in the territory of India” to “act in aid of the NCTC”, a power which would allow the NCTC to exercise direct (and extra-constitutional) command over State agencies.

Para 6.1 establishes a Standing Council, including the “Heads of the Anti-Terrorist Organisation or Force in each State”, bypassing the State Government and the State Police hierarchy, including the State’s Director General of Police, to create the possibility of a direct, extra-constitutional, chain of command between the NCTC and a State Police unit.

These powers cannot be arrogated by the Centre, nor can they be ceded by the States through any ‘consultative process’. If there is, in fact, any pressing necessity for the Centre to be given greater powers to deal with the imperatives of counter-terrorism (CT), these cannot be conferred through any informal process of consultation, through executive orders, or through amendments to any existing laws. The most marginal augmentation of the Centre’s jurisdiction beyond the existing Union and Concurrent lists can be secured only through a constitutional amendment, no less.

It is abundantly clear, by the very evasiveness of the Centre’s approach, that the Union Government lacks the confidence that it can, in fact, demonstrate the necessity of its proposals on the grounds of CT imperatives and in an open and calm debate on the distribution of powers between the Union and the States.

Indeed, and this has been repeatedly argued elsewhere, the “bold, thorough and radical restructuring of the security architecture at the national level” that UHM Chidambaram proposes is anything but necessary, and is, more likely, a wasteful symbolic process, intended to feed the illusion of power, and the pretence of an ‘effective response’, rather than to augment the substance of CT capacities and capabilities.

The idea of the NCTC as panacea, moreover, needs to be vigorously contested. Despite trillions of dollars that have been poured into its CT architecture, and a multiplicity of wars launched abroad to protect the ‘homeland’, the reality is that US CT success is anything but complete. There are often loose assertions that the US has successfully protected the ‘homeland’ from terrorist attacks since 9/11, but this is contra-factual. In at least three cases, disaster has been averted, not by any preventive initiatives on the part of US intelligence and enforcement agencies, but by the sheer and spectacular incompetence of terrorists: the December 2001 case of the “shoe bomber”, Richard Reid; the December 2009 “underwear bomber”, Umar Farouk Abdulmutallab; and the May 2010 “Times Square bombing”, by Faisal Shahzad. Nor, indeed, has the US homeland been entirely free of terrorist successes since 2001. On July 28, 2006, for instance, Naveed Afzal Haq opened indiscriminate fire at the Jewish Federation of Greater Seattle, killing one and wounding five. On February 12, 2007, Sulejman Talovic killed five and wounded another five, at the Trolley Square Mall in Salt Lake City, Utah. And on November 5, 2009, Nidal Malik Hasan, a US Army major serving as a psychiatrist, killed 14 and injured 29, at the military establishment at Fort Hood, Texas. The US homeland is, further, infinitely better protected by geography, history and demography. America has, moreover, compromised almost every Constitutional principal to secure itself over the past decade.

More significantly, the US has been quite unsuccessful in other theatres of CT intervention – the AfPak region is a dramatic case in point. This theatre – plagued by continuous Pakistani mischief – offers a better point of assessment of US CT capabilities. US technical capabilities have certainly created some dramatic ‘successes’ – the neutralization of Osama bin Laden at his Abbottabad safe haven the most prominent among these. The reality, however, is that, where only a handful of Afghan Districts along the AfPak border were afflicted by the Pakistan-backed Taliban insurgency in the aftermath of Operation Enduring Freedom, today, Taliban factions have established their disruptive dominance in 31 of the country’s 34 Districts. American aid and interventions in Pakistan have also failed to establish any measure of stability and, indeed, the country’s “descent into chaos” has only accelerated over the years.

The intention, here, is not to suggest that everything the US has done is wrong. Rather, that the image of uncontaminated success that is projected, as a contrast to India’s unmitigated failure, is far from accurate.

Crucially, India’s past CT failures arise out of an acute deficit of capacities for intelligence gathering, analysis and response, and not out of any extraordinary defects of institutional ‘architecture’. Home Minister Chidambaram explicitly noted, in his Intelligence Bureau Centenary Endowment Lecture on December 23, 2009,

…police stations in the country are, today, virtually unconnected islands… There is no record of crimes or criminals that can be accessed by a Station House Officer, except manual records relating to that police station… we must have more police stations and, at the police station level, we must have more constables, some of whom are exclusive for gathering intelligence… the police must also be the first responder in case of a militant or terrorist attack… QRT and commando units should have modern weapons and equipment…

Of course, with little evidence or argument, he goes on to assert that doing all this “is just extracting a little more from the ‘business as usual’ model”. The real priority, he urges, is “a bold, thorough and radical restructuring of the security architecture at the national level”.

The truth is, most of the functions that the NCTC, in its latest avatar, is intended to perform, were already allocated to the Multi-Agency Centre (MAC) in the Intelligence Bureau (IB), which was approved more than three years ago, through the UMHA’s Memorandum of December 31, 2008. The core of these functions is the creation of a national database and network for intelligence on crime and terrorism. Three years later, MAC has still not been able to construct even a skeleton of this core. Acute deficits of capacity in the IB, the lack of specialists who can create the database, less than complete enthusiasm in other agencies, who were also required to depute their officers to MAC, and the failure of the States to create the necessary linkages to all Police Stations and intelligence sources, lie at the heart of this failure. It is not clear how, by giving this a new name and adding a few more powers and functions, a failed MAC is to be converted into a successful and highly efficient NCTC. Putting the same broken system into a new box is not going to make it work. Crucially, moreover, unless capacities to generate intelligence on the ground, and to network the most dispersed nodes of intelligence gathering and response, are not dramatically improved, all meta-institutional innovations will fail.

Simply put, if the US NCTC were to be called MAC, it would remain as effective (or otherwise) as it currently is. If the Indian MAC is rechristened NCTC, it will remain as dysfunctional.

An internal organisational restructuring of the IB, to improve the separation of functions – intelligence gathering, analysis and operations (each of these already exist within the IB’s ‘mandate’) – and an acceleration of the MAC project to secure its objectives within an improved time frame, would achieve infinitely more than the ‘in your face’ theatrics of ‘architectural restructuring’ and the NCTC. IB’s past operations have not been crippled by the lack of the powers that UMHA seeks to confer on the NCTC; nor will these powers result in any dramatic transformation of its performance. There has, for some time now, been a constant refrain in certain quarters that India’s CT strategy suffers because of a deficit of necessary powers and that consequently, an agency like the NCTC had to be provided broader powers to fulfil its operational mandate. This is nonsense. What CT agencies – in the States and at the Centre – need most is capacities and capabilities, not brute legislative sanction, or layer upon layer of new supervisory institutions in the realization of a capricious and imitative ‘new architecture’.

It is, of course, the case that much of what needs to be done lies within the purview of the States, and, with rare exception, the States have remained neglectful of their responsibilities, even as they have, repeatedly, petitioned the Centre to ‘do more’ in the wake of each significant crisis. This, however, cannot be the basis of an informal re-negotiation of the distribution of powers between the Union and the States. Any usurpation of extra-constitutional authority will, eventually, be kicked back into the natural confines of the Constitution. Further, it is, in fact, the case that greater centralization of response capabilities, command and control will detract from, rather than contribute to, a greater efficiency of CT responses. The only element that requires centralization, here, is the national intelligence database (and not intelligence gathering capabilities), with real time access to the most dispersed of decentralized response units.

The Centre’s present misadventure flows from an astonishing immaturity of approach; from rank opportunism, not statesmanship. Enduring institutions cannot be created through sleight of hand and subterfuge, or by exploiting lawyers’ loopholes in the law.

Ajai Sahni
Editor, SAIR; Executive Director, Institute for Conflict Management & SATP