NCTC fears unfounded

Most of the chief ministers who have raised a chorus of alarm about the UPA government’s deliberate dilution of federalism since home minister P. Chidambaram introduced the National Counter-Terrorism Centre (NCTC), perhaps, do realise that the cause that has united them is at best nebulous and imaginary at worst. But charging the Centre with being “anti-federal” does get attention, including that of the Prime Minister.

The process of the Central government assuming more powers to curb the freedoms of speech, to assemble peacefully and to form associations guaranteed as fundamental rights began in 1963 with the Constitution (Sixteenth) Amendment Act, which empowered Parliament to impose by law reasonable restriction in the interest of “the sovereignty and integrity of India” — two vague grounds, in addition to the existing grounds. The Unlawful Activities (Prevention) Act (UAPA), 1967, enacted four years later, was empowered to do just that — prohibit associations and assemblies on mere suspicion in the name of sovereignty and integrity of India. However, it was not put to much use. Then came the Terrorists and Disruptive Activities Prevention Act (Tada) in 1985. Enacted specifically to tackle Punjab terrorism, Tada was also put to use in Mumbai following the 1993 bombings. It lapsed in 1995.
Parliament was attacked on December 13, 2001, and this resulted in Parliament, with the BJP-led National Democratic Alliance government in office, passing the Prevention of Terrorism Act (Pota), 2002. Pota was repealed by the UPA government in 2004, but simultaneously the 1967 UAPA was amended substantially.
In the wake of the November 2008 Mumbai terror attacks, the need to strengthen anti-terrorism laws was acutely felt by all concerned. Hence, in December 2008, while retaining the UAPA framework, several important amendments with far-reaching consequences were made, virtually re-introducing the stringent provisions of Pota in Parliament, by members of Parliament of all political shades.
For example, the expression “terrorist act” under Section 15 of the UAPA was enlarged and redefined. More importantly, Sections 43A to 43F were inserted to empower a “designated authority” (added in 2004) to arrest any person or search any premises by day or by night on the mere “suspicion of commission of a terrorist act”. That “designated authority” was given vast powers of search, seizure and the like, including the power to gather information by every means possible, anywhere in India.
For over three years, the Central government did not notify the “designated authority” to exercise the powers conferred by the 2008 amendments to UAPA. This, and only this, was being done by Mr Chidambaram last week, albeit with much fanfare. But the politicians who supported stringent amendments to UAPA in the aftermath of Mumbai attacks have conveniently forgotten that what they are complaining about now is their own creation.
Mr Chidambaram obviously had the American NCTC — established in August 2004 under the executive order of the President followed by a congressional legislation — as the model for adaptation. The 9/11 Commission in the US had recommended: “Breaking the older mould of national government organisations, this NCTC should be a centre for joint operational planning and joint intelligence, staffed by personnel from the various agencies.” Similarly, Mr Chidambaram has tried to integrate the Intelligence Bureau’s Multi-Agency Centre (MAC), a decision in line with the recommendation of the Second Administrative Reforms Commission of 2008 that MAC be converted into the NCTC with personnel drawn from different intelligence and security agencies. (MAC was established by a decision of the Group of Ministers in the aftermath of the 2001 Kargil conflict.)
The home minister, however, while announcing the setting up of the NCTC, wanted to make it look very impressive and, therefore, said, among other things, that the NCTC will have the power to requisition the services of the elite National Security Guards, integrate intelligence pertaining to terrorism, analyse it, pursue or mandate other agencies to pursue different leads, and coordinate with the existing agencies for an effective response. He also said that the NCTC will maintain a comprehensive database of terrorists and their associates, friends, families and supporters of terrorist modules and gangs.
“The NCTC”, he said, “will prescribe counter-terrorism priorities for each stakeholder and ensure that all agencies have access to and receive source intelligence support that is necessary to execute counter-terrorism plans and accomplish their assigned tasks… It will also have the power to prepare daily threat assessment reviews and disseminate them to the appropriate levels in the Central government and to the state governments”.
The NCTC, of course, can do all of that, not because Mr Chidambaram has decided so, but because of the 2008 amendments to the UAPA. But by stating the obvious, Mr Chidambaram succeeded not only in making the NCTC look very formidable, but also in ruffling the Opposition’s feathers.
But the NCTC need not be dreaded by states because the persons arrested by the NCTC have to be handed over to the officer in charge of the nearest police station “without unnecessary delay”. Thereafter, the Code of Criminal Procedure (CrPC), which prescribes production of the arrested person before a magistrate, comes into operation. Searches and seizures are also subject to the CrPC with some modifications. The fear that the NCTC will be an Indian version of the dreaded KGB is not warranted given the law as it stands and, of course, India’s zealous judiciary.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India