Malgovernance in the age of intelligence

The legal architecture that underpins our intelligence structures has always intrigued me.

Published: 02nd April 2011 01:17 AM  |   Last Updated: 16th May 2012 07:16 PM   |  A+A-

The legal architecture that underpins our intelligence structures has always intrigued me. Questions asked in Parliament have only underscored its ambiguity. In response to a question on the legislative act or legal architecture from which the Intelligence Bureau draws its legal/statutory

authority, the government’s response was quixotic: “The Intelligence Bureau figures in Schedule 7 of the Constitution under the Union list.” In other words the government has the legislative power to create a bureau of intelligence to be called by whatever name. The mere mention of a subject in the list of legislative powers gives neither life nor legitimacy to an organisation. It’s the same with the Research and Analysis Wing (R&AW). The government has admitted that “there is no separate/ specific statute governing the functions/ mandate of the R&AW”. In 2000, however, the report of a task force on the intelligence system led to a charter listing the scope and mandate of the R&AW.

Contrast this with other countries. The Central Intelligence Agency (CIA) of the United States, created by the National Security Act of 1947, is specifically empowered by the Central Intelligence Agency Act of 1949 (CIA Act) to carry out its duties. MI5, the domestic intelligence service of the United Kingdom, draws its legal authority from The Security Services Act 1989 and its sister organisation, MI6, from the 1994 Intelligence Services Act.

Since India has modelled its legal system on Britain’s, even the evolution of the debate on intelligence reforms in the two countries has uncanny parallels: the process was kick-started externally and driven judicially rather than by internal systemic imperatives. A series of exposes about its functioning convinced the M15 leadership that it needed a sound legal footing, leading to the enactment of the Security Services Act in 1989 and the Intelligence Services Act in 1994.

In India, there have been repeated demands to repeal the Official Secrets Act 1923, becoming even more urgent after the enactment of the Right to Information Act in 2005, as the inconsistency

between these two pieces of legislation stands out in contrast.

The parallels do not end here. Charged with ignoring intelligence warnings on the Falklands crisis, the British government

appointed a review commission, thus conceding the principle of an oversight committee for the intelligence community and paving the way for the establishment of a Parliamentary Standing Committee on Intelligence and Security.

In India, the furore over intelligence lapses before the 1999 Kargil war impelled the Vajpayee government to establish a review committee and a Group of Ministers was set up to implement its recommendations. It may not have been a parliamentary review, but the Vajpayee government did establish the canon of oversight on intelligence structures.

The time has arrived to abandon two puritanical doctrines. First, the dogma that since intelligence operations require secrecy, therefore, the word intelligence itself is taboo. Second, the precept that Parliament must entirely abdicate its powers in this field to

the executive.

It is inappropriate to allow law enforcement and intelligence services to function without a sound legal basis. There can be no case that an equivocal or indeterminate legal mandate gives greater operational flexibility.

The author is a lawyer and MP. The views are personal

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