Sample Materials of SSC CGL (Tier -3) Study Kit

Subject: Essay

Topic: National Counter Terrorism Centre

India is located in a disturbed and unstable neighbourhood, which is rocked by tremors emanating from a variety of hostile organisations, internal as well as external. The main threat is from the jihadi fundamentalists sponsored by the covert warfare branches of the Pakistan Army and the Inter-Services Intelligence (ISI), like the Lashkar-e-Tayyaba (LeT) and its Indian offshoot, the Indian Mujahideen. Other extremist groups like Naxalites and tribal guerrillas also contribute to the quantum of overall threat. The Intelligence Bureau (IB) is the designated nodal agency in India for counter-terrorism and counter-intelligence, but the terrorist invasion of Mumbai on 26/11 graphically highlighted many serious deficiencies in Indian intelligence and security systems. It re-emphasised, once again, the need for refurbishment of the national counter-terrorism effort. The proposal for creation of such an agency at the national level to collate, analyse, integrate inputs from all intelligence sources at Central as well as state levels and plan coordinated counter-terrorist and counter-espionage operations had been amongst the important recommendations of the Kargil Study Group set up in 2001 to analyse the conflict and draw lessons from it. The initial steps to improve coordination to counter terrorism was the establishment of a Multi-Agency Centre (MAC), but its logical extension into an integrated NCTC has not been formalised to date. The MAC was created out of existing resources without any additional accretions and is not fully effective because of shortages of resources and personnel. Part of the reason for these deficiencies and delays in implementation are internecine turf battles between various government bureaucracies competing for control of the proposed centre.

The NCTC proposed as a model for India is based on the American system, which Mr Chidambaram had the opportunity to examine during his four-day visit to the US in September 2009. Much of the organisational and legislative infrastructure required to establish NCTC already exists in India within the MAC, which can be expanded and redesigned as required. Internecine departmental rivalry amongst intelligence services regarding the sharing of information is a ground-level obstruction in India as also in other countries but if NCTC is to succeed what really requires to be firmly overcome is the prevalent mindset of reluctance towards constructive mutual cooperation. The NCTC in the United States was created in May 2003 in the aftermath of the attack on the World Trade Center on September 11, 2001. In India, the trigger event was the terrorist attack on Mumbai on November 26, 2008 by sea-borne terrorists from Pakistan.

The attacks resulted in 164 Indian citizens killed and upwards of 308 injured. In the aftermath of the attack, the Maharashtra state government instituted a committee of inquiry under Ram Pradhan, a former Union home secretary. The report drew attention to inter-agency lapses very similar to those experienced by Americans during and after the 9/11 attacks.

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The Union Government of India on 3 February 2012 notified the setting up of the anti-terror body called National Counter Terrorism Centre (NCTC). NCTC will have the power to carry out operations including arrest, search and seizure. It will draw its functional power of search and seizures under the provisions of the UAPA (Unlawful Activities (Prevention) Act. It will work as an integral part of Intelligence bureau. The notification mandates the terror-fighting agencies to share their inputs with NCTC and it also appoints the director and his core team. Director of NCTC will have full functional autonomy and he will havethe power to seek information on terror from National Investigation Agency, NATGRID, intelligence units of CBI, National Technical Research Organisation and directorate of revenue intelligence in addition to all seven central armed police forces including NSG. He will report to the IB chief and the home ministry. The notification was issued under the Article 73 of the Constitution of India.

National Counter Terrorism Centre of India is an ambitious project that aims at fighting the growing menace of terrorism in India. However, from the very beginning it is in doldrums. Fears of it becoming an all powerful and centralised point for terrorism related issues have never allowed it to take a start. Besides there are many “practical difficulties” that may prevent the actual implementation of the much needed NCTC of India. Presently intelligence agencies of India are operating under different Department/Ministries and there would be a “reluctance” to submit to the centralised NCTC of India. Another problem pertaining to intelligence agencies of India in general and projects like NCTC, National Intelligence Grid (Natgrid) Project of India, etc in particular is that in India we have no “parliamentary oversight” over intelligence and law enforcement agencies. In this background, it has now been reported that the proposed NCTC of India may not be an umbrella organisation having control over various arms of intelligence agencies in India.

The “Safest and Easiest Method” to establish NCTC is to give a Parliamentary Scrutiny to Intelligence Agencies and their functioning. In the same Legal Framework, establishment and role of NCTC can be formulated, suggests Praveen Dalal. It seems P Chidambaram cannot proceed further due to administrative and bureaucratic problems but if Parliament of India enacts suitable laws in this regard, much of the problems can be solved. India has plethora of intelligence agencies and security agencies. These include Research and Analysis Wing (RAW), Aviation Research Centre (ARC), Intelligence Bureau (IB), National Technical Research Organisation (NTRO) and Defence Intelligence Agency (DIA), etc. Presently, intelligence agencies of India are operating in a decentralised manner. There is no centralised authority or Ministry that can coordinate or collaborate between different intelligence agencies. Further, there is no Parliamentary oversight of these intelligence agencies as well.

However, “Practical Difficulties” may prevent the actual implementation of the much needed NCTC of India, says Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India. He says that presently Intelligence Agencies of India are operating under different Department/Ministries and there would be a “Reluctance” to submit to the Centralised NCTC of India.

NCTC draws its powers from Article 73 of the Constitution whose clause a) notes that the executive power of the Union government shall extend ‘to the matters with respect to which Parliament has power to make the laws’. NCTC Will integrate all intelligence pertaining to terrorism & will analyse the information, mount an effective response to terrorism. NCTC should be an independent organisation and not under the IB, as it is currently envisioned. From Article 73 also has a section b) which says “the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any state to matters with respect to which the Legislature of the state has also power to make laws. The Constitution is clear that law and order is a state subject. NCTC’s mission of integrating all information relating to terrorism also clashes with the work of the Research & Analysis Wing, India’s external intelligence agency, which is the nodal agency for intelligence on terror generated abroad. It will also clash with the mandate of the NTRO, which is tasked to collect and analyse information relating to national security, which includes terrorism. In its task of ‘responding to terrorism’ it will also clash with the National Investigation Agency which has been mandated to investigate and prosecute terrorism-related cases Most importantly, the NCTC which claims to derive its powers from the Unlawful Activities (Prevention) Act of 1967, functions under the Intelligence Bureau (IB) which has no legislative authority since it was set up by a government order.

It was proposed that the Multi-Agency Centre (MAC), set up by the group of ministers report of 2002 to fuse intelligence on terrorism from a variety of sources, become the core of the new NCTC. But where the MAC was confined to intelligence gathering and analysis, the NCTC will have investigation and operations functions as well. Even more ambitious was the move, as enunciated by Union home minister P. Chidambaram in a speech at the Intelligence Bureau centenary endowment lecture in December 2009, to place institutions like the National Investigation Agency, the National Technical Research Office (NTRO), the National Crime Records Bureau, the Crime and Criminal Tracking Network and Systems and the National Security Guards under the NCTC; and have the counter-terror work of the Research & Analysis Wing (RAW), the Aviation Research Centre and the Central Bureau of Investigation (CBI), too under this organisation.  

This note deals with the genesis, objectives, structure and powers of the proposed NCTC. A Group of Ministers (2001) that reviewed the internal security system in the aftermath of the Kargil conflict had recommended establishment of a Multi Agency Centre (MAC), a permanent Joint Task Force on Intelligence (JTFI) and an Inter State Intelligence Support System (INSIST). The recommendations were broadly accepted by the then Government. The Second Administrative Reforms Commission (8th Report, 2008) had recommended that the Multi Agency Centre should be converted into a National Centre for Counter Terrorism with personnel drawn from different intelligence and security agencies.

Reference has been made to section 43A. That section enables the Central government to empower any officer of the Designated Authority under certain circumstances. The circumstances are that the officer knows that a person has committed an offence under UA(P)A or knows of a design by a person to commit any offence under UA(P)A. In those circumstances alone, the officer would have the power to arrest and the power to search. However, section 43A has to be read along with section 43B and in particular sub-sections (2) and (3) of section 43B which read as follows: ”(2) Every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer in charge of the nearest police station. ( 3) The authority or officer to whom any person or article is forwarded under sub-section (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code.”

Until now, there was no appropriate body which could be specified as the “Designated Authority” under section 2(e) or upon which powers could be conferred under section 43A. When the Cabinet Committee on Security approved the setting up of NCTC, it also decided that the Director, NCTC may be specified as the “Designated Authority” and the officers of the Operations division of the NCTC may be given the powers under section 43A. A body mandated to deal with counter terrorism must have, in certain circumstances, an operational capability. This is true of all counter terrorism bodies in the world. When engaged in counter terrorism operations, the officers must have the power to arrest and the power to search which are the bare minimum powers that would be necessary. Besides, the powers conferred under section 43A must be read with the duty under section 43B to produce the person or article without unnecessary delay before the nearest police station ( which will be under the State government ), and the SHO of the Police Station will take further action in accordance with the provisions of the CrPC.

National Counter Terrorism Centre (NCTC) of India is presently facing stiff oppositions. A majority of them are self created problems but some of them are also arising due to practical difficulties and internal turf war. The net result is that the obvious but unsolvable terrorism dilemma in India still continues. NCTC, like other governmental projects, is not supported by any legal framework. This is the most inappropriate step taken by the Indian government in general and home ministry in particular. While the constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) is still doubtful yet NCTC without a legal framework is definitely unconstitutional.

By tagging it with the Unlawful Activities (Prevention) Act, 1967 this unconstitutionality is not cured. Add to this the list of other projects of home ministry like National Intelligence Grid (Natgrid) and other similar projects by other ministries like Aadhar project. None of these projects are supported by a legal framework of any kind and they are just pure executive orders violating the constitutional provisions. The NCTC Project of India is also “very significant” for the national security of India.

Terrorist attacks against India are on increase and we need a “specilaised institution” like NCTC to provide and analyse valuable intelligence inputs and leads. However, the inadequacies and unconstitutionalities of NCTC project is proving costly and major hurdle for the successful implementation of the same.

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