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10 Points Legal Framework For Law Enforcement And Intelligence Agencies In

India
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(1) Need Of Legal Framework Under Consideration: Legal framework is the backbone
for any crucial function of the government. This is more so where the law enforcement
and intelligence activities of the State are involved. Law enforcement and intelligence
activities and functions touch the most basic aspects of a persons life. That is why we
have strong Human Rights and Constitutional protections that safeguard the life and
liberties of such persons.

(2) Consequences Of Lack Of Legal Framework: It would be both ironical as well as
violation of basic Human Rights and Fundamental Rights if the law enforcement and
intelligence activities are conducted in an illegal, unreasonable and improper manner.
The duties, functions, liabilities and rights of these law enforcement and intelligence
agencies must be specified in an unambiguous and proper manner. There is no scope for
any sort of ambiguity in these functions of the State.

(3) Position In UK: For instance, the British Security Service is one of three intelligence
services or Agencies. These include the Secret Intelligence Service (SIS), commonly
known as MI6, the Governmental Communications Headquarters (GCHQ), and the
Security Service (MI-5).

(4) Position In US: While there are significant differences between the British and US
legal structures for law enforcement and intelligence services, MI6 is most like the
Central Intelligence Agency (CIA), GCHQ resembles the National Security Agency
(NSA), and the Security Service most closely resembles the Federal Bureau Of
Investigation (FBI). All of them are constituted under duly enacted legislative
frameworks.

(5) Position In India: Surprisingly, India has taken a very strange approach in this
regard. The Central Bureau of Investigation (CBI), the Intelligence Bureau (IB) and the
Research and Analysis Wing (RAW) in India represent a case in which there is almost no
law to look at. Further, there is no legally tenable mechanism that can keep an eye upon
these agencies and their functioning.

Even there are no safeguards that can prevent Political Interventions from disturbing
and influencing the investigation undertaken by these central agencies. The history of
India is witness of such interferences by many Governments in the functioning of these
agencies.


1
All Rights Reserved In Favour Of Perry4Law. This Article is a Preliminary
Research Report prepared by B.S.Dalal (Senior Partner Perry4Law), Praveen Dalal
(Managing Partner Perry4Law), Geeta Dalal (Senior Partner, Perry4Law) And Other
Members/Associates Of Perry4Law in September 2009. Contact pd37@rediffmail.com
and perry4law@yahoo.com for Professional Services of Perry4Law.
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With the enactment of National Investigation Agency Act, 2008 (NIA 2008), some steps
have been taken for constituting a legally formulated centralised agency. However, the
viability and Constitutionality of this Act is yet to be checked. When the Center
encroaches upon the powers of the States, Constitutional crisis and disputes are bound to
arise. So what exactly is the legal status of the CBI, IB and RAW in India?

(6) Central Bureau Of Investigation (CBI)

The CBI was created by an executive order in April 1963. However, its actual and
statutory origin can be traced to the pre-independence authority named Special Police
Establishment operating in the Department of War in 1941. In 1943, it was converted into
an independent entity by an ordinance, namely the Special Police Establishment (War
Department).

Interestingly, even after independence and for all practical legal purposes, it still
functions as the Delhi Special Police Establishment ostensibly constituted before
independence on October 1, 1946. The ordinance was repealed by the Delhi Special
Police Establishment Act that came into force in November 1946 but the executive order
in April 1963 gave it a fresh life span. The entire history and constitution of CBI is very
uncertain and requires clear cut legislation as soon as possible.

In short, the CBI has no independent standing in law. It still draws all its powers of
investigation and arrest from the antiquated 1946 Act, under which it was probably never
formally re-constituted. It greatest limitation is that each State, through an executive
order under Section 6 of the Act, has to give the Special Police Establishment consent to
investigate and prosecute a matter in the State.

Thus, the CBI can only investigate a case if specifically requested by the State
Government concerned or directed by the High Court or the Supreme Court, except if it is
a matter that pertains to the Central Government.

In the past, several States tried to revoke orders giving consent with retrospective effect
to the Special Police Establishment/ CBI to investigate matters. The Supreme Court,
however, ruled that State Governments cannot revoke consent given to the Special Police
Establishment/CBI to investigate and prosecute any matter with retrospective effect.

(7) Intelligence Bureau (IB) and the Research and Analysis Wing (RAW)

RAW had been carved out of the IB in September 1968 and given the primary functions
of collecting external intelligence related to counter-terrorism and conducting covert
operations. Till then, the IB had handled both internal and external intelligence.

There is no separate/specific statute governing the functions/mandate of the RAW.
However, in 2000, a formal charter listing the scope and mandate of the RAW was
formally approved by the Government of India.

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(8) National Investigation Agency Act, 2008

The crimes having an interstate or international dimension are difficult for a law
enforcement body to prevent or investigate if it has limited jurisdiction. To meet this
objective, a national body that can coordinate and oversee the investigation and
enforcement of criminal activities that have national or cross-border repercussions is
essential. Further, in order to prevent such offences from occurring in the first place,
substantial information sharing and comprehensive intelligence gathering across many
jurisdictions has to take place.

The task has become even more difficult with the use of Information and Communication
Technologies (ICT) by Terrorists, Cyber Criminals and Organised Criminals. This
necessitates the establishment of a Central Agency that can take care of the criminal
activities in a holistic manner. Presently, when a national policing agency, like the CBI,
is required to investigate a cross-jurisdictional crime it can only do so at the request or
with the consent of the State concerned.

By contrast, the newly created National Investigation Agency (NIA) can assume
jurisdiction over a Scheduled Offence suo moto. Further, by virtue of the expanded
definition of what constitutes a terrorist act in the recently amended Unlawful
Activities (Prevention) Act, 1967 (in 2008), the concern remains that the NIA may
investigate all kinds of activities that until now were in the exclusive jurisdiction of the
States.

The scope of what the NIA will investigate is paradoxically insufficient and potentially
too broad. NIA is not empowered to investigate a number of interstate and trans-national
crimes that require a national response. For example, human trafficking, drug trafficking,
cyber crime and organised crime are not included in the Schedule of Offences to the NIA
Act. Whether these crimes have a direct link to terrorism or not, the fact is that the
prevention and investigation of these offences are best served by a national response.
These crimes, like terrorism, are by their very nature, national or international in scope
and design. In addition, they can often have overt or covert links to terrorism. An NIA
that is most effective is one that looks at all national crimes and is able to make the
necessary linkages.

On the other hand, it can be argued that given the presence of the political discretions and
the breadth of activities now covered by the amended Unlawful Activities (Prevention)
Act, the possible scope and functioning of the new agency is much too broad and
intrusive for comfort.

(9) Constitutional Validity

Both from the national security and civil liberties point of view, it is inappropriate to
allow law enforcement and intelligence services to function without a well-defined legal
basis. It is imperative in a democracy that every organisation of the government must
draw its powers, privileges and authority from clearly defined legal statutes.
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It is obvious that Police is a State subject and its functions cannot by a Parliamentary
Law be conferred on an existing or new Central Police Force except under Article 249 or
252 of the Constitution. It is also questionable whether the Constitutional scheme
provides for a central police force. Entries 1 and 2 of the State List, Seventh Schedule
make the police a state subject.

Article 246 (1) gives Parliament the exclusive right to make laws on matters enumerated
in the Union List in the Seventh Schedule of the Constitution. Entry 8 in the Union List
gives it the legislative power to enact a statute to bring a Central Bureau of Intelligence
into existence. Unfortunately, no such law has ever been enacted.

Even the Constitutional basis for the creation of the NIA remains a matter of debate. The
areas of policing and public order lie within the exclusive legislative competence of the
States and not with the Centre. States would be extremely chary of accepting or
cooperating with any agency that encroached on that power. Earlier committees, tasked
with examining a possible national investigation agency, have repeatedly pointed out that
it should be clearly understood that the aim of creating such an agency, by whatever
name called, cannot be to usurp the powers of the State, but on the other hand, it should
be an agency meant to assist them in the nations fight against terrorism and inter-State or
trans-national organised crime which jeopardise national security.

It is clear that the Center requires a very strong case to justify the establishment and
operation of a Centralised Agency like NIA. The Constitutional Validity of NIA has
not yet been tested and if the same is brought before the High Court(s) or Supreme Court
of India, some disturbing news may be heard by the Central Government.

(10) The Roads Ahead

The winter session of the Parliament is approaching soon and a holistic and sensible
approach in this crucial direction would go a long way in providing a durable law
enforcement and intelligence agencies legal framework in India. The Constitutional
Scheme must be adequately understood and properly applied to prevent the laws like
NIAA 2008 from being declared as Unconstitutional. Besides, sufficient measures must
be undertaken so that there is a free, immediate and effective sharing of law enforcement
and intelligence information and details among various authorities. With the advent of
ICT these tasks have become a nightmare for the law enforcement and intelligence
agencies. Only a Holistic Approach and Collective Expertise may help the Central
Government to escape the quandary of these multiple authorities and unregulated
situation.