Too Many Cooks Spoil the Food

By M H Ahssan

Creating new security agencies is not the answer to our problems

The government has at last — after the country and its people have paid a heavy price — come up with a proposal to constitute a National Investigation Agency (NIA) and given more teeth to anti-terror laws. The NIA is “to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of state, friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations.”

The NIA is to be entrusted with the investigation and prosecution of offences falling under the Anti-Hijacking Act, Suppression of Unlawful Acts Against the Safety of Civil Aviation Act, the SAARC Convention on Suppression of Terrorism Act, Weapons of Mass Destruction Act, Atomic Energy Act, Unlawful Activities (Prevention) Act and offences against the state mentioned in Chapter VI of the Indian Penal Code.

The concept is excellent. That such an agency was urgently required goes without saying. But the framers of the Bill, passed by Parliament and awaiting presidential assent, have made two cardinal mistakes. They have created a new agency, adding to the plethora of law enforcement agencies. Besides, they forgot that any new institution takes a couple of years to grow and become operational. The country is on fire. Terrorist incidents are happening with distressing frequency. We need the institution to become operational within the shortest possible time — a few weeks, if possible. And it is possible.

The Central Bureau of Investigation (CBI) already has a Special Crimes Division and an Economic Offences Wing. It has been taking up complex cases having interstate linkages or even international ramifications so far. The infrastructure is there. All the government had to do was to enlarge its mandate and give it additional manpower. The Delhi Special Police Establishment Act had to be replaced by a new law. However, for inexplicable reasons, the government decided to create a new body, which would take time to grow and acquire cutting-edge capabilities. Till then, the country will have to suffer turf wars among the different law enforcement agencies and the police of different states working at cross purposes or at least without adequate coordination.

The National Investigation Agency Bill, 2008, is a classic case of good intentions being defeated by unimaginative and bureaucratic thinking. All the optimism generated by the creation of the body would evaporate before long.

The Supreme Court of India had, in its judgment in writ petition (civil) No. 310 of 1996, observed that the suggestion to entrust the CBI with the investigation of cases “emanating from international terrorism or organised
crimes like drug trafficking, money laundering, smuggling of weapons from across the borders, counterfeiting of currency or the activities of mafia groups with transnational links” appeared “quite useful”.

However, before issuing any directions on the subject, it sought the views of the National Human Rights Commission (NHRC), the Sorabjee committee and the Bureau of Police Research & Development. Interestingly, all three bodies endorsed the suggestion. The NHRC clearly said that the CBI should be “entrusted with the responsibility of investigating federal crimes”. It is strange that the government chose to ignore the observations of the Supreme Court and the considered views of three expert bodies.

The US administration found that the responsibilities for homeland security were dispersed among more than 100 different government organisations. It was felt that “America needs a single, unified, homeland security structure that will improve protection against today’s threats and be flexible enough to help meet the unknown threats of the future”. Accordingly, the Department of Homeland Security was created and the various security organisations were amalgamated under four divisions: Border and Transportation Security, Emergency Preparedness and Response, Chemical, Biological, Radiological and Nuclear Countermeasures, and Information Analysis and Infrastructure Protection. The emphasis was on unification. In India, on the other hand, we are pursuing diversification.

On the legislative front, the government has chosen the easier option of strengthening the provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA). It would have been better if a new anti-terror law had been enacted. However, considering its political compulsions, the additional clauses incorporated in the UAPA are quite satisfactory. An accused could now be kept in police custody for 30 days, the time limit for framing the chargesheet has been extended to 180 days, a foreigner involved in terrorism-related crime is not to be granted bail, and the government could attach, freeze or seize the financial assets of a person involved in terrorism.

The Bill also states that if a person is found in possession of arms or explosives and there is reason to believe that such arms or explosives were used in the commission of a terrorist crime, the court shall presume, unless the contrary is proved, that the accused committed the offence. The one significant provision, which was there in the Prevention of Terrorism Act but has not found place in the UAPA, concerns the admissibility of confession before a police officer as evidence. Perhaps the politicians would agree to incorporate that clause as well in due course of time, after some more terrorist incidents. Terrorists must already be preparing to hit their next target in India. Are we ready? A few halting steps in the right direction have been taken. But the government has to cover much more ground.