Ghar mein ghus kar marenge is a great movie dialogue. It is an even better election slogan. But can the demands of democracy and the delicate balance of international relations afford India such bravado, asks Ravi Nair.
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NEW Delhi Chatterati loves to play Chinese Whispers. The most popular one presently is, “If the US can do targeted killings outside their country, why can’t we do it?”
Targeted killings internally, within India by official agencies, or by using proxies, are an age-old practice. Too well documented to need reiteration here. Euphemistically called ‘encounter deaths’, they are endemic.
Targeted killings of non-Indian nationals
There is credible information in the public domain about the killing of a pro-Chinese Marxist tribal leader in Bangladesh in 1983 by a pro-Indian tribal leader now living in India.
Operation Leech
On February 11, 1998, an Indian tri-services detachment gunned down in cold blood six of the leadership of the nascent Arakan-based Rakhine armed group fighting the Myanmar junta. They were gunned down on Landfall Island of the Andaman group of islands.
The Rakhine now have the Arakan Army (AA), one of the more formidable armed groups fighting the Myanmar junta.
The justification
One veteran Indian journalist, known to enjoy the ear of intelligence agencies, seemed to justify the targeting of Gurpatwant Singh Pannun.
Quoting a former Intelligence Bureau official Benu Ghosh, he writes in an article, “India has a right to covert action after diplomacy fails to stop terrorist activity abroad.”
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In the journal of the Institute of Defence Analyses (IDSA), a well-considered senior army officer, while making some bizarre claims, seems to justify targeted killings, “If India has to execute extra-territorial targeted killings; it should credibly establish that its intelligence inputs are based on a high degree of certainty, with failsafe procedures for confirming the targets.”
Targeted killings internally, within India by official agencies, or by using proxies, are an age-old practice. Too well documented to need reiteration here.
But that is not all. Speaking at a public function in Ahmedabad, Prime Minister, Narendra Modi, said, “It is my nature to give a fitting reply… Ab ghar mein ghus ghus ke marenge (We will enter their homes and eliminate them). Even if they hide deep under the earth, I will drag them out and eliminate them.”
Require authorisation for covert activities
Indian intelligence agencies tend to forget that covert activities not only violate individual civil liberties but also pose a grave risk to the operation of international relations, which means that legislation must strictly regulate all covert conduct.
The Regulation of Investigatory Powers Act, 2000 (RIPA) in the UK and the National Security Act, 1947 in the US provide two models for such regulation.
Permit warrants and authorisations are currently only utilised for acts or persons outside the country. Legislation must avoid any expansion of intelligence power into the law enforcement arena by refusing to require warrants or authorisations for intelligence activity against residents and citizens.
Intelligence agencies must never be permitted to have independent law enforcement power and instead must work through the police and criminal justice system to obtain information. An explicit limitation on the subjects of warrants would offer better protection for constitutional rights.
Alternatively, to the extent that the parliament considers it necessary to expand the
intelligence agencies’ powers, all applications for authorisations and warrants should be reviewed by a judge to ensure that they do not violate any constitutionally guaranteed human rights.
India’s intelligence agencies have no parliamentary or judicial oversight
India’s intelligence communities have come under fire for apparent politicisation, repeated intelligence failures and severe violations of civil liberties.
In 2010, India’s former vice President Hamid Ansari called for independent oversight and accountability to address executive domination over and “misuse” of the intelligence agencies.
In 2011, Manish Tewari, a former Minister of Information and Broadcasting, advanced a private member’s Bill, seemingly in response. It was poorly drafted. It appeared to be making radical changes when, in fact, it did little more than maintain the status quo.
One veteran Indian journalist, known to enjoy the ear of intelligence agencies, justifies the targeting of Gurpatwant Singh Pannun, “India has a right to covert action after diplomacy fails to stop terrorist activity abroad.”
Public interest litigation was filed in India’s Supreme Court seeking parliamentary oversight for intelligence agencies. However, in 2016, in a terse Order bereft of any reasoning, the petition was dismissed.
There is a need for a statutory framework for India’s intelligence agencies to build effective oversight and accountability mechanisms. Whilst national security is important to the public interest, it is only one of many competing interests to be balanced for effective governance.
Conceptual background to reform
The two prominent issues related to intelligence regulations are: (1) How to deal with the sometimes conflicting needs of national security and civil liberties; and (2) How to achieve democratic oversight without compromising intelligence efficacy.
Security versus civil liberties
Democratic nations regularly struggle to protect their citizenry and the State against external and internal threats while preserving fundamental democratic civil rights and liberties. A delicate balance between these competing needs is hard as protection against terrorism, hostility and physical attacks often demand limiting guarantees of privacy and liberty that are at the heart of democratic rights.
Secrecy and operational discretion are necessary for the government to respond to potential security threats while transparency and curbing abuses of civil liberties are essential to a thriving democracy.
Complicating the balance between security and civil liberties is the fact that in times of great danger, the public is more willing to exchange their rights for perceived greater safety.
Historical evidence shows, however, that once governments are given greater security powers, including to gather intelligence against their citizens, these powers are readily abused for political purposes with no real gain in security.
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The right most often restricted in the process of intelligence gathering is the right to privacy. The Constitution typically does not expressly protect this right.
Democratic oversight
Almost everywhere, even in democracies, the executive branch of government seeks total control over the intelligence communities, justifying that security needs override the democratic principles of separation of powers, accountability and transparency.
Democracies, however, by definition cannot permit unfettered executive control over intelligence agencies without endangering the democratic principles the government is entrusted to uphold.
Indian intelligence agencies tend to forget that covert activities not only violate individual civil liberties but also pose a grave risk to the operation of international relations, which means that legislation must strictly regulate all covert conduct.
Each of the three branches of government has an important role to play in ensuring that intelligence powers are used to protect the people rather than used against them and that intelligence activities stay within the bounds of the law.
Because of the broad power accorded to intelligence agencies to curtail civil liberties, democratic oversight of their activities is necessary to ensure that these powers are not abused.
It is easy for the executive to justify curtailing liberties as necessary for national security, but those decisions need to stand up under independent scrutiny by a body directly accountable to the people.
Thus, parliamentary oversight is necessary to check that the policy, goals and operations of the agencies are not being undertaken for ‘narrower political or sectional interests’.
The parliament is also typically responsible for budgetary oversight to ensure that public money is spent appropriately and accounted for.
The judiciary also plays an important role in ensuring oversight and accountability of intelligence agencies. Its core tasks are to determine whether intelligence activities conform to constitutional and statutory law and to compensate for inappropriate infringements on civil liberties.
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Judicial oversight is crucial in maintaining the appropriate balance between security and civil liberties: “Such judicial scrutiny has two clear strengths: first, judges are perceived to be independent of government, while, second, the traditional role of the courts is to protect individual rights. Therefore they are well-suited to oversight tasks in areas such as the surveillance of individuals.”
General provisions
Existing organisations
The legislation must make it clear that it applies to any agency it purports to regulate, as it exists at the time of enactment of the legislation. For example, the New Zealand Security Intelligence Service was placed within the Act of the same title.
Explicit obligation to respect human rights and comply with statutory and constitutional law
An essential regulatory requirement is that intelligence agencies function within the bounds of the law, the Constitution, and a country’s human rights obligations.
Time for parliamentary review of rules
Principles of good administration and common sense dictate that the parliament must be given adequate opportunity to deliberate and amend executive rules for the intelligence agencies. A parliament should be granted at least three months to consider and amend the rules.
Political neutrality of intelligence agencies
Strong protection against political intelligence gathering
It is important to ensure that intelligence activities are not being undertaken for political purposes. Political neutrality could be achieved by limiting the prime minister’s and the executive’s ability to direct who comes under intelligence scrutiny.
Democracies, however, by definition cannot permit unfettered executive control over intelligence agencies without endangering the democratic principles the government is entrusted to uphold.
Article 4AA(3) of the New Zealand Security Intelligence Service Act, 1969 offers such protection and further requires the director of the intelligence agency to “consult regularly with the leader of the Opposition for the purpose of keeping him or her informed about matters relating to security.”
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In Argentina, the legislation goes further, forbidding the intelligence agencies from undertaking certain actions:
No intelligence agency shall:
1) Perform repressive activities, have compulsive powers, fulfil police functions or conduct criminal investigations unless so required by justice on account of a judicial proceeding or where so authorised by law
2) Obtain information, collect intelligence or keep data on individuals because of their race, religion, private actions and political ideology, or due to their membership in partisan, social, union, community, cooperative, assistance, cultural or labour organisations, or because of legal activities performed within any field
3) Exert influence over the institutional, political, military, police, social and economic situation of the country, its foreign policies, and the existence of legally formed political parties, or influence public opinion, individuals, the media, or any kind of associations whatsoever.
Provisions like these go a long way toward limiting inappropriate intelligence behaviour.
Act not concerned with lawful dissent
The Australian Security Intelligence Organisation Act, 1979 provides an example of a provision offering greater civil liberties protections to Australian residents.
Section 17A of the Act reads: “This Act shall not limit the right of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security, and the functions of the organisation shall be construed accordingly.”
The present scenario
The initial Indian response to Canadian Prime Minister Justin Trudeau’s allegation about Indian involvement in June 2023 in the killing of Canadian national, Hardeep Singh Nijjar on Canadian soil was dismissive.
However, on December 20, 2023, Trudeau stated that he had sensed a “tonal shift” from India since the US reported an alleged murder plot. The Canadian Prime Minister said India may realise now that “they can’t bluster their way through this”. The Canadians have now stated that they will be making arrests shortly.
It is easy for the executive to justify curtailing liberties as necessary for national security, but those decisions need to stand up under independent scrutiny by a body directly accountable to the people.
Once the US made its charges. India stated it will “formally investigate security concerns aired by the US in a warning to New Delhi about its links to a foiled plot to murder a Sikh separatist leader” on November 29, 2023.
A ‘high-level committee’ was set up by the Indian government on the same day to investigate the matter.
Just a week before the foreign ministry’s statement, the White House had confirmed that it had warned New Delhi about its involvement in a thwarted plot to kill a Sikh separatist leader, Gurpatwant Singh Pannun.
In the third week of October 2023, the UK and Australia asked India to cooperate with the Canadian investigation.
The issue comes at a delicate time for both India and the Joe Biden administration in the US as they try to build closer ties in the face of an ascendant China which both perceive as a threat.
The head of the Federal Bureau of Investigation (FBI) flew into New Delhi for discussions in the second week of December 2023.
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Incumbent US senator Micheal Bennet was born in Delhi, but his rushed visit to India’s capital in the third week of December 2023 was not for nostalgia. He is a member of the Senate Intelligence Committee.
Some in New Delhi hold that an ‘accommodation’ can still be worked out. They tend to forget that with an indictment in a US court, things take on a life of their own.
Some in New Delhi hold that an ‘accommodation’ can still be worked out. They tend to forget that with an indictment in a US court, things take on a life of their own.
It would do well to recall the 1976 Orlando Letelier killing. Some in the Central Intelligence Agency (CIA) and the press tried to derail the judicial process, but the Federal Bureau of Investigation pursued all leads and, in 1978, with the help of the State Department, pressured Chile to hand over an American–Chilean bomb maker named Michael Townley.
However, the real question in India is when will the cloak-and-dagger brigade meet the scales of justice?
