Indian Intelligence Agencies: Unchecked Accountability

Spooks have a Field Day, Supreme Court Squashes Accountability for IB

On the August 19,  2015, the Central Government informed the Supreme Court of India that there was an "enormous amount of control" over the working of the intelligence agencies, including their finances, by the government."There is an enormous amount of control over the working of the intelligence agencies. A parliamentary sub-committee (looks) into their working and tables report in parliament which are not published," Additional Solicitor General P.S. Narasimha told the bench headed by Justice Dipak Misra.”ASG Narasimha is reported to have said the accounts of the intelligence agencies were audited.[i]

The Center for Public Interest Litigation (CPIL) had sought Parliamentary control of Intelligence Agencies and fiscal oversight through the Comptroller and Auditor General of India (CAG). Subsequently, on  February 23,  2016, the court dismissed the petition filed by the CPIL.
 
According to media reports the court observed, “We do not think the court should entertain such kinds of petitions which deal with security of the country," a bench comprising Justices Dipak Misra and Shiva Kirti Singh said. The media report further reported the bench as saying, "We are not inclined to entertain this petition…Trying to get into the domain of intelligence may create dent in national security."
 
It rejected the plea of Prashant Bhushan, appearing for NGO CPIL which has filed the PIL, claiming that in most advanced democracies like the UK and the USA, such agencies are accountable to parliamentary panels as they spend tax- payers' monies. No detailed reasoning was provided by the court.

"What they do in the United Kingdom, we cannot practice in India," the bench said, adding "They (Centre and Parliament) must be having some measures. It cannot be said that they do not have any mechanism. You need not legislate on all issues. You need to have some kind of caution also, otherwise, the very purpose will be lost."The bench said that irrespective of nature of the PIL, any plea that may dent national security should not be entertained by courts."As a student of History, Law and Literature, I do not think any court should enter into this territory," Justice Misra, heading the bench, added.[ii]

A careful look at the Parliament of India website as well as the website of the union home ministry reveals that neither have any mention of an extant subcommittee of Parliament on the subject.
 
The United States has a system of judicial authorisation, the Foreign Intelligence Surveillance Court (FISC). While the FISC has authorized on individual basis targeted surveillance within the US since 1978, it has had a more limited, supervisory, role to play in strategic surveillance.
 
Under Section 215 FISA, the Government must apply for a warrant before a judge of the 15-member the Foreign Intelligence Surveillance Court. The FISC approves both the “Primary Order” authorising the overall program and “Secondary Orders” which require individual phone companies to provide information to the NSA. Every order is subject to renewal every 90 days.
 
The FISA court process for considering applications may include a hearing, and FISC judges have the authority to take testimony from government employees familiar with the technical details of an application. If issued, a warrant requires a telecommunications provider to furnish information to the NSA on a periodic basis.
 
In Sweden, a Defence Intelligence Court was established (Försvarsunderrättelsedomstolen or UNDOM) together with a control and monitoring body, the Defence Intelligence Inspection (Statens inspektion för försvarsunder-rättelseverksamheten or SIUN). UNDOM consists of two former senior judges and six lay members (mainly former politicians, from several different political parties).
 
The judges are appointed by the government after an open recruitment process in the Judicial Council. The former politicians are appointed by the government after consultations between the parties represented in the parliament. UNDOM is thus a hybrid body. It is assisted by a small registry.

The Intelligence Bureau (IB) is not known either for intelligence or accountability. Take the premature obituary of Lok Nayak Jayaprakash Narayan as an example of the numerous blunders by our friends in the Intelligence Bureau- a slip that left the then Janata Government red-faced, with Prime Minister Morarji Desai having to issue an unqualified apology.  The Lok Nayak reportedly took it in good humour. But it doesn’t stop there
 
In Canada, the Federal Court of Canada exerts oversight over the intelligence community. For example, in Canada, to obtain a warrant to intercept telephone communications there is a rigorous process where internal approval is initially sought from senior members of the agency and final approval must be given by the judiciary. The United Kingdom put in a statutory framework in 1989 for MI 5 and for MI 6 in 1994 respectively. Israel put in its statutory control mechanism in 2002. Australia and New Zealand too have their own Acts.
 
The Intelligence Bureau (IB) is not known either for intelligence or accountability. Take the premature obituary of Lok Nayak Jayaprakash Narayan as an example of the numerous blunders by our friends in the Intelligence Bureau- a slip that left the then Janata Government red-faced, with Prime Minister Morarji Desai having to issue an unqualified apology.  The Lok Nayak reportedly took it in good humour. But it doesn’t stop there.
 
In the nineties of the last century , I.B. cooked up a fantasy spy ring indicting two of ISRO’s scientists of being spies and tortured them to obtain ‘confessions’. It reportedly delayed India’s development of cryogenic engines. The CBI in 1996 in a classified report indicted the IB chief in Kerala and nine other senior officers in this botched fiction. [iii]

Not to mention their role in the Ishrat Jahan case, with charge-sheets pending against four I.B. members.[iv]

It is not certain if the Bench was made aware of Lieutenant Colonel Shrikant Purohit’s alleged involvement in the 2008 bomb blasts in Malegaon, Maharashtra. Col Purohit was an officer of Military Intelligence. And the less said about Kargil the better.
 
Further, Gopal Subramanian’s confirmation to the bench by the collegium was vitiated by reports submitted to it by the CBI and the IB (two of his former clients). It is rather amusing that in the reports submitted, the CBI and the IB cited ‘personality oddities’ and ‘corporate links’[v]as reasons for red-flagging Mr Subramanium.

In any event,  if there is an adverse report regarding a potential candidate for judgeship of any of the superior courts, ought he/she not be given a chance to defend him/herself? In this regard, India needs to learn from the United States. For appointments to the senior judiciary, a nominee needs to undergo a rigorous procedure of vetting in the US Senate by the Senate Judiciary Committee before the Senate gets to vote. Personal prejudices denied Justice A P Shah a place on the Supreme Court.

In any event, if there is an adverse report regarding a potential candidate for judgeship of any of the superior courts, ought he/she not be given a chance to defend him/herself? In this regard, India needs to learn from the United States. For appointments to the senior judiciary, a nominee needs to undergo a rigorous procedure of vetting in the US Senate by the Senate Judiciary Committee before the Senate gets to vote. Personal prejudices denied Justice A P Shah a place on the Supreme Court.

For all the good fiction that the IB produces, it has had to face little criticism from those in power (executive or judiciary, regardless). It is no surprise, of course. Who doesn’t like a good story? With all the scholars of literature, law and history on and off the bench to gobble up the fiction, one wonders if democracy and accountability have a chance in India that is Bharat.

A reading of Benjamin Franklin all around would have been instructive.“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

(The author is a renowned analyist of human rights jurisprudence and can be reached on ravinairsahrdc@gmail.com)