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Laws of discretion

india Updated: May 12, 2010 23:04 IST
Vikram Sood
Vikram Sood
Hindustan Times
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It was a torrid month for Indian intelligence agencies, when the two issues of phone tapping and the arrest of an Indian diplomat for spying for Pakistan made prime time news. The media’s over-exuberance in the search for TRP ratings has meant that we have revealed far more than was necessary without realising the permanent damage we can cause to our security systems. This was Mumbai 2008 revisited. There were bureaucratic turf wars and cover-ups leading to lurid stories of high intrigue and low cunning. Quite apparently, there were no government or editorial guidelines that suggested discretion. Ultimately, the revelations made us look like a bunch of national sillies.

It is true that all systems are liable to misuse and abuse; but this does not mean that this is rampant or kosher. Further, to assume that once a new system of surveillance has been acquired it will be misused with a vengeance is a fallacy, just as much as it is to assume that a new weapons system acquired by the government will be misused against its own people. Recent examples of the phone tapping of some political figures based on the evidence published do not indicate that there was a concerted effort to tap their phones. Instead these were cases of inadvertent tapping as a result of what the system calls random search. This is a practice resorted to when the phone number of the quarry is not known or when the search has to be widened. A sustained effort would have meant logged records of various conversations over a period of time with their transcripts. In the absence of this, it is difficult to accept that there was either a government decree to tap or that there was a rogue element within the intelligence apparatus who was indulging in a private escapade. Besides, disclosures like the location of a National Technical Research Organisation (NTRO) hub in or near Mumbai is useless knowledge to an Indian but vital for a terrorist looking for such locations to cripple Indian capabilities when required.

Amidst all the furore, the accountability of intelligence became the presumed cure-all buzzword for all the ills — real and imagined — of the system. The underlying and incorrect assumption of this demand is that intelligence agencies are laws unto themselves and that unless they are made accountable there would be no improvement.

The question that flows from this is: accountable to whom, under what rules and to what extent? In India we don’t even have a legal charter for the agencies. Only when there’s a legal charter that clearly demarcates the activities of all the agencies can they be held accountable. One suspects that this is the most difficult first step but the principle is simple, there cannot be accountability without a legal charter.

Oversight and empowerment should be concurrent. In the case of intelligence agencies this means oversight to assess overall performance in relation to the charter but not scrutiny of operational matters, strategic decisions, source, covert operations or funds. All these would remain with the head of the organisation within the scope of the charter. External micromanagement is disastrous and intelligence organisations need functional autonomy in personnel management. The appointment of the head of the service would be the prerogative of the head of the government but there is need for transparency in such appointments.

Another aspect of accountability must be considered. Here it is relevant to quote from a work of fiction and since fiction today reflects reality, it is apt. Vince Flynn in his book Separation of Power, says, “There was a definite need for congressional oversight, but there was also need for black operations. Politicians were politicians after all, and throughout the history of governments they have proven incapable of keeping secrets. By virtue of their need to talk, raise money and peddle influence, all but a few were simply unable to keep their mouths shut. This was the standard feeling among the intelligence and military types in Washington…”

Flynn reflects the true state of affairs in a country like the US, which has strong traditions of security management post-World War II and a presidential form of government with two major parties. We have seen our parliamentarians function inside and outside Parliament, and are aware of midnight deals before votes in Parliament. We also know that in a weak coalition, multi-party parliamentary form of government, various considerations, other than competence, determine the formation of parliamentary committees or ministries. These are the realities of our vulnerabilities.

Besides, oversight of the performance would not be enough unless other simultaneous steps are taken. The legislated charter would also need empowerment of the organisational heads, autonomy of function — both operational and administrative — which does not tie down the organisation to the fortunes of the bureaucracy elsewhere in the system. Earlier one had pleaded that the media should self-regulate but this apparently is not possible. We, therefore, need to introduce Western practices requiring media regulation on matters of national security.

Reforms and check-backs are necessary at all times to ensure quality intelligence and must not be episodic. Oversight has to be in the hands of those who have empathy and understanding about the business of intelligence and not with those who are ignorant, indifferent or even inimical. Finally, since accountability and oversight are so eminently desirable, all arms of the government should be covered and there should be no exclusions in the list.

The question, however, is — are we ready for this or are we, without thinking this through and in our zeal for control and power, merely tilting at windmills and conjuring cures worse than the disease?

Vikram Sood is former Secretary, Research & Analysis Wing The views expressed by the author are personal

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