Legalising intelligence gathering

Published: July 8, 2014 

Rana Banerji

AP Language expertise, knowledge of strategic issues, cultural mores of countries, computer know-how and other technological skills may be needed to assess intelligence inputs. File Photo: AP

Intelligence reform cannot succeed unless it is dovetailed with police modernisation and both technological and human capabilities of State police personnel are upgraded

The appointment of a seasoned Intelligence professional as the National Security Advisor (NSA) perhaps augurs well for the neglected issue of Intelligence reform. This is the second time this has happened, though the first occurred more by accident and was not bereft of turf wars. This time, either by accident or design, the government may adopt a wiser approach, keeping options open to seek diplomatic advice from professional diplomats who have better geo-strategic vision and a world view, while focussing more urgently on priority areas of homeland security.

Enthusiasm for intelligence reforms in India has been sporadic. Some years back, the Institute for Defence Studies and Analyses (IDSA) commissioned a Task Force for the purpose, but after the report was written the then Director, though initially eager, sensed winds of disapproval and sat over it for well over a year before it was published, after a leadership change in IDSA. The late B. Raman, one of the doyens of external intelligence who had been privy to the report during drafting, was mildly supportive of its findings while commenting on the Naresh Chandra Committee on Defence and Security reforms’ access to it. He felt it remained peripheral at best.

The former Information Minister tabled a private member’s Bill on the subject in Parliament and acknowledged later that ‘there was traction’ in the Cabinet Secretariat on many recommendations of both these texts. However, it is not known to what extent this traction may have converted to deeds.

Reform priorities

Simply put, the agenda of intelligence reforms in India should have three or four main priorities. First, activities of all major intelligence agencies should be founded on a legal basis. There should be a law or separate laws to specify the existence, functions and jurisdiction of all such organisations. Though emerging initially from clandestine origins, this has been the pattern of evolution of all modern intelligence organisations functioning in democratic countries. The CIA in the U.S. was provided legal status by the National Security Act, 1947, the Russian FIS by the Law on Foreign Intelligence Organs, 1996, the MI-5 in U.K. by the Security Services Act, 1989 and the MI-6 by the Intelligence Services Act, 1994. In Harman &Hewitt vs U.K., the European Court of Human Rights ruled in 1992 that the ‘lack of a statutory basis could be fatal to claims’ of an intelligence agency to justify that its actions ‘were in accordance with the law.’ With the Right to Information Act having become a reality in India, though some aspects of intelligence activity and operations remain protected outside its ambit, unless we quickly provide legal status protection to our agencies we could be waiting for a Harman & Hewitt to happen here as well.

Second, and most important, such legislation must provide a legal basis for different tiers of oversight and accountability of Intelligence agencies — executive, financial and legislative.

Again, we have abundant evidence of modern practice to make a start. Following yardsticks of ‘good governance’ defined by the World Bank, the Geneva Centre for the Democratic Control of Armed Forces (DCAF), the Human Rights Centre of Durham University, U.K., and the Norwegian Parliamentary Intelligence Oversight Committee pioneered a joint exercise in 2005, which was documented in the monumental classic: ‘Making Intelligence Accountable: Legal Standards and Best Practices for Oversight of Intelligence Agencies’ by Born & Leigh. We need not follow prescriptions listed therein blindly but adapt the thrust and essence of advice selectively, which may meet the objective of preventing misuse for political or personal agendas.

Third, recruitment to intelligence organisations must be made open to induct the best available talent, and also to cater to varied needs and different streams. Intelligence collection and operations are highly specialised functions, only some of which can be imparted through systematic professional training. Language skills, in-depth knowledge of strategic issues, cultural mores of target countries, computer know-how and other technological skills may all be needed at different stages of assessing any intelligence input. These capabilities cannot be developed overnight by everybody, or by personnel joining an intelligence agency as a temporary haven. It has to be a lifetime profession where skills should be progressively honed.

Selection procedures

At present, our agencies are primarily staffed by police officers on deputation. Officers from other All India Services are taken, but in a trickle. This system should be changed quickly. Separate, specialised written examinations for entry could be prescribed through the Union Public Service Commission (UPSC), with greater emphasis on subjects like international relations, history, economics and military strategy.

We should try to move toward an intelligence culture where risk taking and discretion can become second nature and personal ambition is eschewed for the greater national good

The fourth important aspect is Intelligence co-ordination. Apex-level political decisions on security issues are taken by the Cabinet Committee on Security (CCS), which is assisted by a core group of bureaucrats, including heads of Intelligence agencies. Discussions in the CCS and the core group tend to remain restricted to immediate or emergent security problems. There is seldom the inclination to devote time to debate, analyse and develop long-term policy options, strategies or consequences. Though there is a National Security Council and an Advisory Board of experts to cater to some of these issues, these bodies do not always meet regularly. Structural channels to utilise their inputs through pinpointed action agendas have not fructified.

Commenting on perceived intelligence failures before 26/11, the current NSA had observed on IBN channel: ‘India’s intelligence capabilities are not as low as rated’ , but he stressed the ‘need to bring all central agencies under one umbrella to ensure seamless integration in their operations, assessments and response.’ He also emphasised that ‘Indian intelligence overall needs to show greater aggressiveness in its approach towards safeguarding vital national interests.’ Achieving such seamless co-operation is easier said than done. At any given moment, individual personality quirks or quest for short-term glory may often scuttle larger objectives of security co-operation. No foolproof, institutionalised structures have emerged to insure against such pitfalls.

Intelligence reform cannot succeed unless it is dovetailed with police modernisation and both technological and human capabilities of State police personnel are upgraded. Early resolution of the impasse over legislation pertaining to a National counter-terror mechanism, which gives adequate teeth for rapid response without unduly raising apprehensions and treading on the toes of State political leadership, needs to be worked out on priority.

In the ultimate analysis, we should try to move toward an intelligence culture where risk taking and discretion can become second nature and personal ambition is eschewed for the greater national good.

(Rana Banerji is former Special Secretary, Cabinet Secretariat and visiting professor at Jamia Millia Islamia, New Delhi.)

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