Our intelligence agencies periodically find themselves in the midst of a public uproar over alleged acts of omission as well as commission. On one hand, they have been pilloried for apparently failing to prevent major breaches of national security, ranging from the Pakistani incursion in Kargil to the terrorist attacks in Mumbai.

On the other hand, they have been embroiled in controversies over illegal eavesdropping, corruption, political machinations, and arbitrary detention and violence. Ascertaining the veracity of these allegations is nigh impossible. For the intelligence agencies are responsible only to the Executive. Then too, there is no legal framework that governs their existence and functioning. Our agencies are, in a very real sense, shadowy outfits.
The drafting of a private members’ bill on intelligence is a long overdue and welcome move. The draft has been spearheaded by Congress MP Manish Tiwari, who has been vocal about his concerns regarding the absence of a legal framework for the agencies. The Intelligence Services (Powers and Regulation) Bill 2011 will hopefully generate serious discussion on this important but neglected issue. Though it is unlikely that the private members’ bill will be passed by Parliament — not least because of the resistance that the agencies will put up.
Two provisions of the bill are worth underlining. First, it provides for a Standing Committee of Parliament on Intelligence. The bill states that this will function very much like the Standing Committee on Defence. But the analogy with defence breaks down when we look at the provisions for the functioning of this committee. The bill states that if the Standing Committee on Intelligence seeks information from the directors of the Intelligence Bureau (IB), Research and Analysis Wing (RAW) or National Technical Research Organisation, the latter can refuse to disclose it because “it is sensitive information, which, in his opinion, may not be made available”.
Here lies the nub of the problem of civilian control of intelligence. Striking an optimum balance between efficiency and control is very difficult owing to the undeniable requirement of secrecy. There is an obvious need to keep the activities, methods and sources of intelligence away from the public glare and restricted to the smallest possible circle within the government. The problem is further complicated by the fact that even within an intelligence agency, information is shared on a strict need-to-know basis. The requirement of secrecy naturally provides wide latitude to the agencies and limits the extent of executive control. As it stands, the bill is not strong enough and leaves too much to the discretion of the heads of the agencies.
Historically, the agencies have seldom shied away from exploiting these limits. Take the case of the IB. After Independence, the IB continued to maintain close links with its erstwhile parental organisation: the British Security Services (also known as MI5). The MI5 retained a Security Liaison Officer (SLO) in New Delhi from early 1947 onwards. Prime Minister Jawaharlal Nehru was dimly aware of this arrangement, but did not know about the extent of the cooperation between the IB and MI5. Recently released MI5 documents show that the first director of
the IB, T.G. Sanjevi Pillai, cooperated with British officials in keeping a tab on the Indian high commissioner to London, V.K. Krishna Menon — a man they deeply distrusted for his alleged Communist leanings.
The next director of IB, B.N. Mullik, went further in his dealings with the MI5. The latter even sent officials to Delhi to review the IB’s espionage on the Communist Party of India. Throughout this period, Mullik threw a veil on the MI5’s liaison in Delhi and misled Mr Nehru. A British SLO noted that Mr Mullik did not have “sufficient confidence in the Prime Minister’s continuing approval of the liaison willingly to draw his attention to it”. Mullik, of course, was thoroughly delighted with the relationship. He wrote to the director general of the MI5 after a trip to London: “I never felt that I was dealing with any organisation which was not my own. Besides this, the hospitality and kindness which all of you showed to me was also quite overwhelming”.
A second important feature of the bill is that it explicitly prohibits the agencies from furthering the interests of any political party or coalition. Given the activities of the agencies, especially the IB, in the past, it is not clear that a mere injunction would suffice. Besides, the line between interests of the state and more narrow political interests is often blurred. Consider two examples. In late October 1962, following the onset of the war with China, the IB began tapping the telephone of the senior political leader, T.T. Krishnamachari. Mullik believed that Krishnamachari was critical of the government’s handling of the crisis, hence his activities needed to be monitored. Mullik’s presumption was matched by his agency’s incompetence. Krishnamachari soon became aware of the eavesdropping and took up the matter with Nehru. It took the Prime Minister’s personal intervention to bring the issue to a close.
A few months later, the irrepressible Mullik sent another “intelligence report” that claimed that the Swatantra Party, led by C. Rajagopalachari, had decided to launch a political offensive against Mr Nehru for the botched conduct of the war. Mr Nehru ensured that a copy of the report reached his old colleague and friend. Rajaji responded forcefully: “The whole story is a diabolical fabrication… We are living in the midst of dangerous liars and fabricators”. In the post-Nehru period, the IB’s shenanigans received explicit political blessing. The newly created RAW also plunged into electoral politics in 1971-72, though its mandate was external intelligence.
The agencies have not only been used by their political masters, but have willingly insinuated themselves into political affairs. This is largely because of the quest for continued patronage. The bill rightly holds that the heads of the agencies should not be eligible for reappointment to any post. They would do well to emulate the example of the British director of the IB, who, after quelling the Quit India protests of 1942, quietly retired from the service and spent the rest of his days as the vicar of his Cambridgeshire village.

Srinath Raghavan is a Senior Fellow at the Centre for Policy Research, New Delhi