BY E RAGHAVAN IN DNA INDIA
Let us leave aside for a minute the politics that will undoubtedly cast a large shadow on the controversy surrounding the chief justice of Karnataka High Court PD Dinakaran. Now that some Dalit leaders have jumped in on his behalf, and the Congress, as a rule, does not do anything that could antagonise that community, one can be reasonably certain how politics on this issue will play out in the next few weeks, following the admission of an impeachment motion in the Rajya Sabha.
This is probably the second time that such a motion on a sitting judge has come up before Parliament. Like last time, in the case of Justice V Ramaswami of the Supreme Court, there is every possibility that the voting on the motion in the two Houses will have less to do with the merits of the case than with party politics. Bipartisan consensus on such issues is next to impossible in this country.
Let us also leave aside the allegations against Justice Dinakaran for a moment since, as some have argued, the chief justice has had no chance to defend himself. As he himself has insisted for long, he may not be guilty of what he is accused of.
But, in that case, why did the Union government, which is supposed to recommend names to the President for the appointment of judges of higher courts, think twice about his name? Why did the collegium of Supreme Court judges revise its opinion on the recommendation that he be elevated to the bench of the apex court? Quite simple: on the principle that Caesar’s wife must be above suspicion. Particularly so in this case because there were some due processes of fact-finding that were run through after the legal fraternity in Tamil Nadu made specific charges.
The issue, unfortunately, does not stop there. The elevation of Justice Dinakaran to the Supreme Court may have suffered irreversible damage. What lies beyond that are many questions that remain unanswered though some of those were raised by his own colleagues in the Karnataka High Court. These are not questions that can be easily brushed aside. The first and the most obvious is the question of credibility of the higher judiciary itself.
If, in the opinion of senior judges of the Supreme Court, Justice Dinakaran is not fit to be a member of the bench in the apex court, is he fit to be the chief justice of the High Court? That question will of course be answered by the committee to be appointed by the chairman of the Rajya Sabha to consider the question of his impeachment.
As he has frequently refrained from taking part in court proceedings either because the lawyers did not want to appear in his court or because the controversy had reached a sensitive point, should Justice Dinakaran continue to hold office at all? He may have a right to do so but when eminent lawyers across the country have concluded that he is not as above suspicion as he ought to be, should he simply step aside even if it means suffering some personal injury to his reputation but upholding the majesty of the system of justice in this country?
That would not only establish the credibility of the judiciary but, more importantly, set a benchmark against which every other judge of a higher court would be measured. The issues that Justice DV Shylendra Kumar sought to raise and discuss with his colleagues in the Karnataka High Court found some resonance among a few of his colleagues, if not all, and speaks volumes of the concern within the judiciary for standards of probity.
Also, it is not as if it is only some lawyers in Tamil Nadu who have raised questions about Justice Dinakaran. They may have been the first, but eminent lawyers whose personal reputation is so high that they would be pretty careful in what they do publicly, have fully lent support to the cause of probity.
In the previous case when a judge faced impeachment and was saved from it because of the partisan voting in Parliament, the judiciary found an answer to deal with the issue in its own way. The then chief justice of the Supreme Court kept the judge completely away from judicial work until his retirement. That may have been a case of practicing ostracism to separate the tainted, but it did not, in the long run, serve the purpose of weeding out those who were not above suspicion.
Judges across the country have been pretty sensitive to the ills of society and, in the last few years, have genuinely worked at protecting citizens from the tyranny of the system, often inviting the charge of excessive judicial activism. It now probably needs the same kind of activism to give itself a much needed shine, by first applying the test for Caesar’s wife, rather than let another organ of the state decide its conduct.
The Union Home Minister, Shri P.Chidambaram has proposed radical restructuring of the security architecture at the national level. He unveiled the proposal while delivering the 22nd Intelligence Bureau Centenary Endowment Lecture here today. The topic of the lecture was “A New Architecture of India’s Security”. As part of the plan, the Home Minister said that India must be able to set up the National Counter Terrorism Centre(NCTC) by the end of 2010 and once set up, NCTC must have the broad mandate to deal with all kinds of terrorist violence, directed against the country and its people. The Home Minister also suggested restructuring of the Ministry of Home Affairs and said that the Home Minister should devote the whole of his time and energy to matters relating to security. Following is the text of his lecture:
“The Intelligence Bureau is 122 years old. It celebrated its centenary in the year 1987. Since 1988, a number of distinguished persons – political leaders, scientists, jurists, police officers and administrators – have delivered the Centenary Endowment Lecture. I find that the subjects chosen by the speakers covered a wide range. I confess that I toyed with the idea of speaking on something totally unrelated to the security establishment. However, I thought that discretion was the better part of valour and settled on a subject that is, I hope, both contemporary and futuristic. I thank Shri Rajiv Mathur, Director, Intelligence Bureau for inviting me to deliver this prestigious lecture.
Violence is Omnipresent
2. Humankind has, through the millennia, co-existed with violence. Hunting and gathering were marked by violence. Tribal groups employed violence to assert their authority over land to the exclusion of other tribal groups. Kingdoms were established by violence; kings were overthrown by violence. War was invariably an instrument of policy: to be a warrior was an honour and great kings were also great warriors. In the twentieth century alone, humankind witnessed two world wars and many smaller wars. About 15 million people were killed in the first World War. Nearly 60 million died in the second World War. In all the conflicts since 1945, it is estimated that nearly 30 million persons may have been killed.
3. It is only in the latter half of the twentieth century that the seeds were sown for a movement against war. The famous words of Pope John XXIII come to mind: “No more war, never again war.” Nevertheless, little wars were fought over territories or boundaries. Fierce civil wars were fought, and are being fought, within countries. Nations joined together to fight a despot or eject an invader or quell a rebellion. As I speak to you, there is an “official” war in Afghanistan and many more unofficial battles. A world free from war appears to be a distant dream. While accepting the Nobel Peace Prize, the President of the United States and the Commander-in-Chief of the world’s mightiest armed forces said: “We must begin by acknowledging the hard truth that we will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.”
4. Can war be justified? It is a debatable point. Those who justify war point to the larger objectives of a war. That was the case in the Balkans, that was the case in Iraq, and that is the case in Afghanistan. The jury is still out.
5. Through the twentieth century, many small wars were waged within countries. In Russia and in China, war took the name of “armed liberation struggle” in order to liberate the country from the yoke of capitalism and usher in the so-called rule of the proletariat. The main driver was ideology. Stripped of the rhetoric, it is plain that such conflicts were also driven by the desire to establish the supremacy of a leader or a party. Such ideology-driven internal wars led to the establishment of one-party States such as in China, Vietnam and Cuba.
6. After the second World War, there was another kind of war. It was called the Cold War. It was fought not with armies or aircraft or ships. It was fought in the shadowy world of espionage and intrigue. Its soldiers were agents and double agents. Its objectives were not very different from the objectives of a regular war. The ultimate goal was military supremacy over other countries of the world. It is said that the Cold War came to an end with the fall of the Berlin wall on November 9, 1989, but that was not the end of all wars. Just as the Cold War came to an end, we witnessed the emergence of another kind of war, namely, jihad. Jihad is a war or struggle against unbelievers and, currently, it is waged by a number of groups owing allegiance to Islam. Unlike the original Crusades, jihad is not fought like a conventional war. Jihad employs terror as an instrument to achieve its objectives. Such terror is directed against all and sundry, its victims are usually innocent people, and its goal is to overawe and overthrow the established authority. The tactics of the jihadis have been copied by militants belonging to other groups too, not excluding militants professing the Hindu faith.
7. By a quirk of fate, India in the twenty-first century has turned out to be the confluence of every kind of violence: insurrection or insurgency in order to carve out sovereign States; armed liberation struggle motivated by a rejected ideology; and terrorism driven by religious fanaticism. Never before has the Indian State faced such a formidable challenge. Never before have the Indian people been asked to prepare themselves for such fundamental changes in the manner in which the country will be secured and protected.
The Agony of 26/11
8. Let me summarize the situation as I found it on December 1, 2008. Two days after the terrorist attack in Mumbai was repulsed – after paying a heavy price of 164 lives – the nation was in shock and anger. A billion plus people felt they had been humiliated and the country had been brought to its knees by a small band of terrorists. The security establishment was in disarray and numerous questions were being asked. Had the intelligence agencies failed? Did the first responder, the Mumbai police, prove to be totally inadequate? Was the famed National Security Guard too slow to get off the block? Did the leadership of the police let down its men? Did the security forces take too long to neutralise ten terrorists? Did the Central and the State Governments fail to provide strong leadership? Did the crisis management system collapse? Did the country pay too heavy a price before it repulsed the terrorist attack? Did the Government fail the people in not mounting a swift counter-attack on the perpetrators of terror?
9. These questions continue to haunt me and many others even today. I think I have found the answers to some of these questions, but I do not intend to fill this lecture with those answers. My purpose is to outline the broad architecture of a new security system that will serve the country today and in the foreseeable future.
The State of our Police
10. Let me begin with the foot soldiers. All the States and Union Territories put together had a sanctioned strength of 1,746,215 policemen as on January 1, 2008. Against that number, only 1,478,888 policemen were in place. There are 13,057 police stations and 7,535 police posts in the country. The ratio of available police to per 100,000 people for the whole country is about 130. The international average is about 270. There is no substitute for the policeman who walks the streets. He is the gatherer of intelligence, the enforcer of the law, the preventer of the offence, the investigator of the crime and the standard-bearer of the authority of the State, all rolled into one. If he is not there, it means that all these functions are not performed. That – the failure to perform essential police functions – is where the rot began and that is where the rot lies even today. The first step, therefore, in devising a new security system in the country is to recruit more policemen and policewomen. In my estimate, States would have to recruit over 400,000 constables this year and in the next two years in order to fill the vacancies and in order to provide for expansion of the police forces. A bad police constable is worse than no police constable. Recruitment must therefore be transparent, objective and corruption-free. The Central Government has devised and commended to the States a transparent recruitment procedure that will be totally technology-based and free of any human interference. On its part, the Central Government has implemented the new procedure in the recruitment to the Central Para Military Forces.
11. The police stations in the country are, today, virtually unconnected islands. Thanks to telephones and wireless, and especially thanks to mobile telephones, there is voice connectivity between the police station and senior police officers, but that is about all. There is no system of data storage, data sharing and accessing data. There is no system under which one police station can talk to another directly. There is no record of crimes or criminals that can be accessed by a Station House Officer, except the manual records relating to that police station. Realising the gross deficiency in connectivity, the Central Government is implementing an ambitious scheme called “Crime and Criminal Tracking Network System (CCTNS).” The goals of the system are to facilitate collection, storage, retrieval, analysis, transfer and sharing of data and information at the police station and between the police station and the State Headquarters and the Central Police Organisations.
12. If intelligence-gathering is the corner stone of fighting insurgency or insurrection or terror, the foot solider cannot work in isolation. He must be enabled to gather intelligence from the people as well as the representatives and quasi-representatives of the State such as the Sarpanch, the Lambardar, the village accountant etc. More often than not, intelligence is provided by the citizen who would wish to remain faceless and nameless. It is therefore important that State Governments adopt “Community Policing” and establish a toll-free service under which a citizen can provide information or lodge a complaint. It is the myriad bits of information flowing from different sources that, when sifted, analysed, matched, correlated and pieced together, become actionable intelligence. That function must be performed, first and foremost, at the police station.
13. To sum up, we must have more police stations and, at the police station level, we must have more constables, some of whom are exclusively for gathering intelligence. We must also have a system of community policing, a toll-free service, and a network to store, retrieve and access data relating to crimes and criminals.
14. Moving up the ladder, at the District and State levels, the Special Branch is the key to better intelligence and more intelligence-based operations. There should be at least one police officer in each police station exclusively for intelligence gathering. As the intelligence gathered flows up to the District Special Branch and State Special Branch, there should be an adequate number of well-trained analysts to analyse the intelligence and to draw the correct conclusions. Intelligence is a specialised function. Not every police officer is qualified to be an intelligence officer. It is therefore imperative that the State Special Branch should be restructured as a specialised and self-sufficient cadre of the State police in terms of personnel, funds and equipment. On January 7, 2009, the Central Government had circulated a proposal to restructure the Special Branch in the State police forces. The implementation of the proposal will mark the beginning of a long-haul effort to restructure the intelligence-gathering machinery at the District and State levels.
15. At the District and State levels, the police must also be the first responder in case of a militant or terrorist attack. 24 x 7 control rooms must be set up at the District and State levels. Quick Response Teams must be positioned in every district capital and in important towns. Commando units must be raised and placed at different locations. The Central Government is supporting and funding the conversion of two companies of selected IR Battalions into commando units. QRT and commando units should have modern weapons and equipment. The age profile of these units must be young and older men must, periodically, make way for younger men. A special Anti-Terrorist Unit should be created at the State level to pre-empt terrorist activities and investigate terrorist crimes. While States have begun to take steps on these matters, the pace is still slow. States must give a full and true picture of the tasks completed by them and their state of readiness to face any threat or attack.
The Difficult Tasks Ahead
16. From what I have said so far, the changes that are required to be made in the architecture are quite basic and simple. They can be done by providing more funds, tightening the administration and working to a time-bound plan. Of course, it will also require sound leadership at the political and police levels. However, when we move upwards, serious questions concerning constitutional responsibilities and division of powers will arise. Also, difficult questions would have to be posed and answered regarding the current responsibilities of different organisations. Questions concerning jurisdiction and turf would also arise. If our goal is just extracting a little more from the ‘business as usual’ model, then these questions can be brushed aside or provided ‘don’t-rock-the-boat’ answers. I am afraid that would be self-defeating. Sooner than you think, there may be another crisis like the hijack of IC-814 or another catastrophe like the Mumbai terror attacks. Hence, the time to act is now and I would spell the last word with capitals: N-O-W.
17. I therefore propose a bold, thorough and radical restructuring of the security architecture at the national level.
18. The present architecture consists of political, administrative, intelligence and enforcement elements. At the political level, there is the Cabinet Committee on Security. The administrative element is the Ministry of Home Affairs, the Prime Minister’s office and the Cabinet Secretariat. The intelligence elements are spread over different ministries: there is the Intelligence Bureau which reports to the Home Minister; there is the Research and Analysis Wing which falls under the Cabinet Secretariat and, hence, reports to the Prime Minister; there are organisations such as Joint Intelligence Committee (JIC), National Technical Research Organisation (NTRO) and Aviation Research Centre (ARC) which report to the National Security Adviser; and there is the National Security Council Secretariat under the NSA which serves the National Security Council. The armed forces have their own intelligence agencies, one each under the Army, Navy and Air Force and an umbrella body called the Defence Intelligence Agency. There are other agencies which specialise in financial intelligence. These are the Directorates in the Income Tax, Customs and Central Excise departments, the Financial Intelligence Unit, and the Enforcement Directorate. The enforcement element of this architecture consists of the central para-military forces such as CRPF, BSF, CISF, ITBP, Assam Rifles, SSB and the NSG. What will strike any observer is that there is no single authority to which these organisations report and there is no single or unified command which can issue directions to these agencies and bodies.
19. Some changes have indeed been brought about after December 1, 2008. The most beneficial change has been the operationalisation of the Multi-Agency Centre. By an Executive Order issued on December 31, 2008, the MAC was energised with a broader and compulsory membership and a new mandate. Every piece of relevant information or intelligence gathered by one of the participating agencies is brought to the table. It is analysed and the analysis is shared with the participating agencies. The key benefit is that no one can say that his/her organisation was kept in the dark. Another beneficial change has been the extension of the reach of MAC to the State capitals and the setting up of the Subsidiary-MAC in each State capital in which all agencies operating at the State level, especially the Special Branch of the State police, are represented. Through the MAC-SMAC-State Special Branch network, the Intelligence Bureau has been able to pull more information and intelligence from the State capitals. It has also been able to push more information and intelligence into the State security system.
20. Another innovation is the security meeting held every day, around noon, under the Chairmanship of the Home Minister. NSA, Home Secretary, Secretary (R&AW), DIB, Chairman, JIC, and Special Secretary (IS) attend the meeting. The broad directions issued at the end of the meeting have brought about better coordination in all aspects of intelligence including gathering, analysing and acting upon the intelligence.
21. We should resist the temptation to exaggerate the gains that have been made through these changes at the top. The Home Minister – and by extension the Government – is indeed better informed. The agencies involved are more alert. However, in my view, it does not mean that our capacity to pre-empt or prevent a terrorist threat or attack has been enhanced significantly. As far as responding to a terrorist attack is concerned, we may have enhanced the capacity to contain and repulse an attack, but I think that there is still some distance to go before we can claim to have acquired the capacity to respond swiftly and decisively to a terror attack. It is this assessment which leads me to argue that the security architecture at the top must be thoroughly and radically restructured.
The New Architecture
22. Some steps in this direction are self-evident. For example, there is a need to network all the databases that contain vital information and intelligence. Today, each database stands alone. It does not talk to another database. Nor can the ‘owner’ of one database access another database. As a result, crucial information that rests in one database is not available to another agency. In order to remedy the deficiency, the Central Government has decided to set up NATGRID. Under NATGRID, 21 sets of databases will be networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies. This project is likely to be completed in 18 – 24 months from now.
23. Two more projects will commence early next year. The first is the Business Process Re-engineering of the Foreigners Division at a cost of about Rs.20 crore. The second is the more ambitious Mission Mode Project on Immigration, Visa and Foreigners’ Registration and Tracking with the objective of creating a secure and integrated service delivery framework for facilitating legitimate travellers and strengthening security. The scheme will network 169 missions, 77 ICPs, 5 FRROs and over 600 FROs with the Central Foreigners’ Bureau. It is estimated to cost Rs.1011 crore, but the rub is it is slated to be implemented over a period of four and a half years. The gaps in the visa system have been exposed in a number of cases, the most notable among them being the case of David Coleman Headley. The compelling need to create a fool-proof system cannot be overstated. Hence, it is necessary to put the project on a fast track, engage a Mission Director, beg or borrow the money to implement the project, and complete the task within 24 months.
24 It is our experience that the networks of terror overlap with the networks of drug-peddling, arms-trading and human-trafficking. The agencies that deal with the latter category of crimes are scattered. For example, the Narcotics Control Bureau is under the Ministry of Home Affairs while the Central Bureau of Narcotics is under the Ministry of Finance. The Arms Act is administered by MHA. As far as human-trafficking is concerned, the primary responsibility lies with the State Governments, but anti-human trafficking cells have been set up only in 9 districts of the country. Regulation and enforcement in each of these areas require to be strengthened and brought under the overall management of internal security.
The Way Forward – NCTC
25. Another major idea is the proposal to set up the National Counter Terrorism Centre (NCTC). As the name suggests, the goal is to counter terrorism. Obviously, this will include preventing a terrorist attack, containing a terrorist attack should one take place, and responding to a terrorist attack by inflicting pain upon the perpetrators. Such an organisation does not exist today. It has to be created from scratch. I am told that the United States was able to do it within 36 months of September 11, 2001. India cannot afford to wait for 36 months. India must decide now to go forward and India must succeed in setting up the NCTC by the end of 2010.
26. Once NCTC is set up, it must have the broad mandate to deal with all kinds of terrorist violence directed against the country and the people. While the nature of the response to different kinds of terror would indeed be different and nuanced, NCTC’s mandate should be to respond to violence unleashed by any group – be it an insurgent group in the North East or the CPI (Maoist) in the heartland of India or any group of religious fanatics anywhere in India acting on their own or in concert with terrorists outside India. NCTC would therefore have to perform functions relating to intelligence, investigation and operations. All intelligence agencies would therefore have to be represented in the NCTC. Consequently, in my proposal, MAC would be subsumed in the NCTC. Actually, MAC with expanded authority will be at the core of the new organisation and will transform itself into NCTC. The functions that will be added to the current functions of MAC are investigation and operations. As far as investigation is concerned, Government has set up the National Investigation Agency, and that agency would have to be brought under the overall control of NCTC. The last function – operations – would of course be the most sensitive and difficult part to create and bring under the NCTC. But I am clear in my mind that, without ‘operations’, NCTC and the security architecture that is needed will be incomplete. It is the proposed ‘operations’ wing of the NCTC that will give an edge – now absent – to our plans to counter terrorism.
27. The establishment of the NCTC will indeed result in transferring some oversight responsibilities over existing agencies or bodies to the NCTC. It is my fervent plea that this should not result in turf wars. Some agencies would naturally have to be brought under NCTC and what come to my mind readily are NIA, NTRO, JIC, NCRB and the NSG. The positioning of R&AW, ARC and CBI would have to be re-examined and a way would have to be found to place them under the oversight of NCTC to the extent that they deal with terrorism. The intelligence agencies of the Ministry of Defence and the Ministry of Finance would, of course, continue to remain under the respective Ministry, but their representatives would have to be deputed mandatorily to the NCTC. NATGRID would obviously come under NCTC. So also, CCTNS would have to be supervised by the NCTC.
28. Given the overarching responsibility of NCTC and its mandate, it will be obvious that it must be headed by a highly qualified professional with vast experience in security related matters. Considering the structure of our services, it is natural to expect that the head of one of our organisations will be appointed to the post, by whatever name it may be called. He/she could be a police officer or a military officer. He/she must be one who has impeccable professional credentials and the capacity to oversee intelligence, investigation and operations. He/she will be the single person accountable to the country on all matters relating to internal security. At the Government level, and in order to be accountable to Parliament, it would be logical and natural to place the NCTC under the Ministry of Home Affairs.
29. That leaves the question of the structure of the Ministry of Home Affairs itself. MHA now handles a wide portfolio of subjects ranging from ‘freedom fighters’ to ‘forensic science’. Is this a functional arrangement to deal with the grave challenges to internal security that we face and that we will face from many more years? I am afraid not. It is true that the words ‘Ministry of Home Affairs’ have an authoritative ring, but the MHA now performs a number of functions that have no direct relation to internal security. For example, it has a division dealing with freedom fighters but it does not have even a desk for dealing exclusively with forensic science. There are other divisions or desks that deal with Centre-State Relations, State Legislation, Human Rights, Union Territories, Disaster Management, Census etc. These are undoubtedly important functions and deserve close attention. However, internal security is an equally, if not more, important function that deserves the highest attention. In my view, given the imperatives and the challenges of the times, a division of the current functions of the Ministry of Home Affairs is unavoidable. Subjects not directly related to internal security should be dealt with by a separate Ministry or should be brought under a separate Department in the MHA and dealt with by a Minister, more or less independently, without referring every issue to the Home Minister. The Home Minister should devote the whole of his/her time and energy to matters relating to security.
30. It is after one year in office that I have ventured to outline the new architecture for India’s security. There are two enemies of change. The first is ‘routine’. Routine is the enemy of innovation. Because we are immersed in routine tasks, we neglect the need for change and innovation. The second enemy is ‘complacency’. In a few days from today, 2009 will come to a close, and I sincerely hope that we may be able to claim that the year was free from terror attacks. However, there is the danger of a terror-free year inducing complacency, signs of which can be seen everywhere. A strange passivity seems to have descended upon the people: they are content to leave matters relating to security to a few people in the Government and not ask questions or make demands. I wish to raise my voice of caution and appeal to all of you assembled here, and to the people at large, that there is no time to be lost in making a thorough and radical departure from the present structure. If, as a nation, we must defend ourselves in the present day and prepare for the future, it is imperative that we put in place a new architecture for India’s security.
31. Thank you for your patience and courtesy.”