Will NCTC be able to operate without police inference?

In a letter to the chief ministers, who have expressed their reservations over certain features of the proposed National Counter-Terrorism Centre, Home Minister P Chidambaram has stated, inter alia as follows, "Before we take the next steps, I have asked the home secretary to call a meeting of the directors general of police and the heads of the anti-terrorist organisations/forces of the state governments and discuss in detail the scope and functions of the NCTC."

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This tends to confirm the claims of West Bengal CM Mamata Banerjee, who had met Prime Minister Manmohan Singh in New Delhi on this subject that the government has decided to withhold further follow-up action on the NCTC till there were prior consultations with the states. The Government of India needs to be complimented for not standing on false prestige and agreeing to hold consultations with the states "before we take the next steps"

With his letter, Chidambaram has enclosed a note giving the background to the proposed creation of the NCTC and its salient features. The note states inter alia, "A body mandated to deal with counterterrorism must have, in certain circumstances, an operational capability. This is true of all counterterrorism bodies in the world. When engaged in counterterrorism 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."

The claim made in the summary regarding the position in other countries does not seem to be factually correct. In the United States, the NCTC, created under law in 2004, as an independent institution to function under the supervision of director of National Intelligence has not been given any executive powers. Its charter says, "The NCTC assigns roles and responsibilities to departments and agencies as part of its strategic planning duties, but NCTC does not direct the execution of any resulting operations."

In the United Kingdom, the powers of arrest are still exclusively vested in the police. The Secret Service, known as MI-5, which is responsible for secret intelligence collection and covert action against terrorism, does not have these powers. A paper on counterterrorism strategy submitted by the British government to their Parliament in July 2006 says, "Covert operational counterterrorist activity in the United Kingdom is conducted by the Security Service in close collaboration with the police forces across the country and the anti-terrorist branch of the metropolitan police. The police are responsible for taking executive action, such as arrests, and conducting the investigation against those suspected of involvement in terrorism. The SIS and GCHQ, in collaboration with intelligence and security partners overseas, operate covertly in support of the Security Service to disrupt terrorist threat."

SIS is the secret intelligence service, also known as MI-6, which is the UK's external intelligence agency. GCHQ is the General Communications Headquarters, which is the UK's TECHINT agency. It is the UK's equivalent of the USA's National Security Agency and our National Technical Research Organisation.

The multi-agency centre created in pursuance of the recommendation of the task force set up by the Atal Behari Vajpayee government in 2000 under the chairmanship of G C Saxena, former head of the Research and Analysis Wing, has tasks of joint analysis, joint assessment, joint identification of follow-up action required and assigning responsibilities for follow-up action. It will get its follow-up operations executed by other empowered agencies and the state police. It has no executive powers of its own.

The NCTC is proposed to be given executive powers of follow-up action on its own on the basis of its assessment and informing the state police thereafter. At present, the multi-agency centre alerts the state police and suggests arrest of a suspect by them. In future, the NCTC can arrest a suspect on its own, hand him over to the police and direct it to start an investigation.

This is apparently meant to deal with contingencies where the state police drag their feet in making an arrest -- for example a Bharatiya Janata Party government in respect of a suspected Hindu terrorist or some other government in respect of a Muslim terrorist. The multi-agency centre is at present without powers to deal with such instances. The NCTC can, in future, arrest the suspect without alerting the police, take his house search, hand him over to the police and then direct it to start an investigation.

This is a power with serious implications for misuse, with the NCTC, taking its orders from the Intelligence Bureau, arresting a person in a state without keeping the police in the picture and then confronting the police with a fait accompli.

In other countries, the NCTCs or their equivalent came into being as part of a detailed national counterterrorism strategy, which was formulated after extensive political consultations and debate in the Parliament.

In India, 41 years after terrorism made its appearance and over three years after the 26/11 terrorist strikes in Mumbai, we still do not have a comprehensive counterterrorism strategy drawn up in consultation with the political parties and states.

Without such a strategy, attempts are being made to smuggle through a mechanism with executive powers to enable the IB to make arrests in certain cases on its own through the NCTC without the prior knowledge of the states.

(The writer is additional secretary (retd), cabinet secretariat, Government of India, New Delhi, and, presently, director, Institute For Topical Studies, Chennai, and associate of the Chennai Centre For China Studies.)