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14 August 2014, Gateway House

Counter-terrorism and federalism

A powerful National Counter Terrorism Centre may appear to contravene the federal spirit, but it is a necessary step. The opposition of several state governments to the potential encroachment upon their powers by the NCTC can be addressed if the centre and states share the responsibility of combating terrorism

Fellow, International Security Studies Programme

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The attacks of 26 November 2008 in Mumbai highlighted many serious problems in India’s security. As a result, the government took steps to strengthen the country’s counter-terrorism (CT) apparatus, especially to address the deficiencies in intelligence operations. Within weeks, Parliament approved of a new National Investigation Agency (NIA).

Although many states questioned the need for a central agency to investigate terrorism, the anguish generated by the attacks overruled the questioning.

The Multi-Agency Centre (MAC) within the Intelligence Bureau was also reinvigorated. It was to become a platform for major security agencies to share terrorism-related information and analysis. The MAC would help all security agencies to be on the same page in terms of CT intelligence.

However, these were supposed to be transient steps; the then home minister, P. Chidambaram, wanted to combine the NIA and MAC into a dedicated CT agency called the National Counter Terrorism Centre (NCTC), and vest it with the operational powers so far given only to the state police and central investigation agencies. In conceiving of such an agency for India, Chidambaram had in mind the U.S.’s NCTC, which functions as a centre for joint operational planning and joint intelligence.

States such as Gujarat, West Bengal, Odisha, Tamil Nadu, Madhya Pradesh, and Bihar strongly opposed this proposal. They said the NCTC’s operational powers will encroach upon the powers of the state and thereby affect the federal distribution of power.  Constitutionally, “public order” and “police” are in the State List 1.

Undeterred by this opposition, the government promulgated an Executive Order in February 2012 to create the NCTC. The order stated that the NCTC will perform the functions of intelligence, investigation, and operations. 2

The states which opposed the NCTC felt that the central government had not consulted them and other state governments. They specifically cited two clauses within the Executive Order in their opposition to the NCTC:

  • Clause 3.2 and the enabling section 43A of the Unlawful Activities (Prevention) Act, 1967, which authorise NCTC officials to arrest any terrorism suspect and carry out operations without prior authorisation from the respective states;
  • Clause 3.5, under which the NCTC will “have the power to seek information, including documents, reports, transcripts, and cyber information from any agency” in discharging its functions. 3

These clauses, they argued, will give the NCTC unbridled powers to not only  conduct raids in any state, overriding the authority of the state police authorities, but also the power to summon any information for intelligence, investigation, and operations from any agency. In their view, such unrestrained powers were not even given to the NIA for the purposes of investigation.

In wanting to emulate the U.S. model for preparing a CT strategy, Chidambaram had overlooked a significant detail—in the U.S., the states also assume an important role in the federal CT structure through the Department of Homeland Security’s (DHS) Fusion Centres, which plug CT intelligence into the NCTC. 4

In India, the situation is different. Constitutionally, the states are indeed in charge of “police” and “public order.” But in reality, these provisions do not guarantee the states a real say in the management of security issues, because the related “Defence of India” is in the Union List.

Besides, under the Emergency Powers vested under Articles 352, 355 and 356, the centre can intervene in the affairs of the state. In the past, these provisions were liberally exploited by a powerful centre to interfere in the administration of many states, which created discontent among regional leaders.

But there are other reasons for the scepticism among the states about the NCTC:

Firstly, the heavy politicisation of the intelligence agencies has allowed the ruling parties, both at the centre and the states, to use the agencies to pry on or harass the leaders of opposition parties. Allegation have been made, for example, that the NIA has been used for political purposes to probe saffron terror-related cases such as the blasts in 2006 in Malegaon and the bombing of the Samjhauta Express in 2007.

Secondly, the scepticism springs from the alleged biases in the security agencies against the minority communities and allegations of the agencies’ involvement in human rights violations, particularly during CT operations. The controversy generated by the “encounter” killing of Ishrat Jahan in Gujarat in 2004 vividly brings forth these concerns. There are fears that with unbridled powers, the NCTC may end up as one more political tool in the hands of the government.

Chidambaram had attempted to mitigate these concerns by convening a meeting of chief ministers in May 2012, but the critics were not convinced. 5 Ultimately, the NCTC proposal was put on hold by the central government.

Although such a powerful central agency may appear to contravene the federal spirit, it is a necessary step from the perspective of countering terrorism.

India is among the countries that are most affected by terrorist violence. But the Intelligence Bureau, which is the nodal CT agency, cannot fully execute this function because it has no legal authority to investigate an offence, arrest or detain anyone, or prosecute people in court.

Other agencies, such as the Research and Analysis Wing, the Central Economic Intelligence Bureau, and the Directorate General of Military Intelligence, to name a few, also perform CT functions as part of their broader organisational mandate.

Not only is it important to coordinate the CT functions of these agencies and bring them on one platform, it is also necessary to liaise with the state police and their specialised anti-terror squads. Unfortunately in India, inter-agency coordination is a requirement that exists only on paper. In reality, each agency zealously guards its own turf, and co-ordination is mostly ad hoc and depends on the interpersonal relationships between the officials of the agencies.

Moreover, the strength and capacity of the state police are extremely inadequate to meet the terrorism challenge. According to the Bureau of Police Research and Development, India has only 143 police personnel for every 100,000 people. This is well below other countries with much lower populations, like Italy (559) and Mexico (491.8). 6

Intelligence gathering in India is also inadequate. Although the technical capabilities to gather intelligence have gradually improved, the police’s human intelligence network remains dismal, with few human assets in sensitive neighbourhoods to monitor suspicious activities.

Coordination between the various state police forces for CT operations is also a problem. On numerous occasions, an absence of coordination has hampered important operations. A single empowered agency like the NCTC can be the coordinator in addition to gathering and analysing intelligence, and disseminating it to the other agencies.

However, the NCTC cannot be the only step taken to counter terrorism. It must be complemented by other measures to enhance intelligence gathering, implement police reforms, and improve the government machinery’s response to any incident of terrorism.

With these measures, the centre and the states can more effectively share the responsibility of countering terrorism. But it is imperative to quickly move forward to put these measures in place.

Sameer Patil is Associate Fellow, National Security, Ethnic Conflict and Terrorism, at Gateway House.

This article was exclusively written for Gateway House: Indian Council on Global Relations. You can read more exclusive content here.

For interview requests with the author, or for permission to republish, please contact outreach@gatewayhouse.in.

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References

1.  Ministry of Law and Justice, Government of India, Constitution of India: Seventh Schedule, <http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(35).pdf>

2. Ministry of Home Affairs, Government of India, The National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order, 2012, <http://www.satp.org/satporgtp/countries/india/document/papers/2012/NCTC_2012.pdf>

3. Steiner, James E., ‘Improving Homeland Security at the State Level’, Studies in Intelligence, 53 (3), 2009, <https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/studies/vol.-53-no.-3/improving-homeland-security-at-the-state-level.html>

4. Ministry of Law and Justice, Government of India, Constitution of India, <http://lawmin.nic.in/coi/coiason29july08.pdf>

5. Press Information Bureau, Opening statement of the Home Minister Shri P. Chidambaram at the meeting of Chief Ministers on NCTC on Saturday, May 5, 2012 at New Delhi, <http://pib.nic.in/archieve/others/2012/may/speech.pdf>

6. Ministry of Home Affairs, Government of India, Low Police-Population Ratio, <http://pib.nic.in/newsite/erelease.aspx?relid=35999>

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