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Mainstream, VOL L, No 20, May 5, 2012

National Counter-Terrorism Centre (NCTC) Idea: A Western Replica

Sunday 13 May 2012

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by JAYAN P.A.

“Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.”
—Dr B.R. Ambedkar, Chairman, Drafting Committee of the Constitution of India

The creation of a new institutional mechanism for tackling terrorism—is this a different or peculiar kind of problem in addressing the question of terrorism? Does it need a different treatment altogether? Can it be that the people opposing this are anti-national? Should not the security of the citizen be first protected at any cost? Is it a kind of mere bargaining by the non- Congress ruled States on this issue? Is it appropriate on Indian soil? The animosity between the State and Central governments ruled by different parties has been obviously enhanced on this issue in recent times.

The Central Government’s proposal to set up a National Counter-Terrorism Centre would definitely violate the principle of federalism. The proposed NCTC is an adoption of the US model in letter and sprit. The Indian situation is different. The proposed move will lead to the deterioration of Centre-State relations in the days to come. Facing serious reservations from the States over the proposed National Counter-Terrorism Centre, the Union Home Minister is clearly seeking to allow the political agenda to impede the terror investigations.

With regard to the Centre’s insistence on the establishment of a National Counter-Terrorism Centre (NCTC), an overarching security apparatus of the state is not a healthy move in a democratic set-up especially in view of the continental size of diversity in India.

Understanding Terror

FOR terrorism, there is no precise and proper definition. That makes the concept more complex and intractable. Moreover, terrorism remains an elusive concept to date. Some definitions point to the terrorists’ use of violence in the service of politics. Terrorism is thus branded as “the deli-berate attack on innocent civilians for political purposes”. (‘Nihilism and Terror’, New Republic, September 29, 1986, p. 11)

“A man with one clock always knows what time it is, but a man with many clocks never knows what time it is.” That old saying has to do with the way we understand time. Something similar could be said about the way we understand terrorism. (Michael Keonenwetter, Terrorism—A Guide to Events and Documents, 2004, London: Greenwood Press)

Terrorism comes in many forms. Some experts attempt to designate terrorist activities according to whether they are controlled or directed by a government or involve nationals from more than one country. Often terrorist acts are designed to undermine support and confidence in the existing government by creating a climate of fear and uncertainty. Terrorists often aim not so much to spark an immediate change, but rather to provoke the government into acts of repression, to make the government look weak or inept, and thereby to prepare the way for a future change. And democratic societies are potential targets of terrorist attacks.
There are more than 600 identifiable terrorist groups existing worldwide. (Statistics from David E. Long, The Anatomy of Terrorism, New York: Free Press, 1990, p. 165) They tend to be small and tight-knit, seldom numbering more than 100 members and usually less than several dozen. Societies most prone to terrorism are often those with weak states—that is, with unstable political structures (government, bureaucracy, security forces, party system and the like) and fragmented political cultures.

Contemporary terrorism poses a continuing problem and is not likely to go away soon. The dangers appear to be growing which are in the form of weapons of mass destruction (WMD) terrorism, that is, nuclear terrorism, the threat of biological and chemical attacks.

There is no single or totally effective solution to the issue of terrorism. There should be ways of limiting the opportunities (financing terrorism) available to terrorists and of deterring, punishing, or simply eradicating terrorism before it reaches epidemic proportions. There remains one momentous problem: every one terrorist can be too many. Indeed, one well-trained terrorist with a small support system—a few friends, safe houses, and supplies—can inflict enormous damage. Terrorism is a small weapon that has enormous range and firepower. Terrorism has more than the ability to destroy the peace of nations; it has the power to unsettle the lives of millions of people. Terrorism is not a tornado that strikes without reason and destroys without meaning. There is a purpose behind even the most apparently senseless terrorist act. The methods and tactics they use to achieve their goals and intentions are extremely complex.

United States’ Case

THE National Counter-Terrorism Centre (NCTC) was established in the United States by the Presidential Executive Order 13354 in August 2004, and codified by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The NCTC implements a key recommendation of the 9/11 Commission: “Breaking the older mould of national government organisations, this NCTC should be a centre for joint operational planning and joint intelligence, staffed by personnel from the various agencies.”

By law, the NCTC serves as the primary organisation in the United States Government (USG) for integrating and analysing all intelligence pertaining to counterterrorism (except for information pertaining exclusively to domestic terrorism).

The NCTC integrates foreign and domestic analysis from across the Intelligence Community (IC) and produces a wide-range of detailed assessments designed to support senior policy-makers and other members of the policy, intelligence, law enforcement, defence, homeland security, and foreign affairs communities. The prime examples of the NCTC’s analytical products include items for the President’s Daily Brief (PDB) and the daily National Terrorism Bulletin (NTB). The NCTC is also the central player in the ODNI’s Homeland Threat Task Force, which orchestrates interagency collaboration and keeps senior policy-makers informed about threats to the homeland via a weekly update.

The NCTC leads the IC in providing expertise and analysis of key terrorism-related issues, with immediate and far-reaching impact. For example, the NCTC’s Radicalisation and Extremist Messaging Group leads the IC’s efforts on radicalisation issues. The NCTC’s Chemical, Biological, Radiological, Nuclear Counter-terrorism Group pools scarce analytical, subject matter, and scientific expertise from the NCTC and CIA on these critical issues.

The NCTC also evaluates the quality of CT analytical production, the training of analysts working on CT, and the strengths and weaknesses of the CT analytical workforce. The NCTC created the Analytic Framework for Counterterrorism, aimed at reducing redundancy of effort by delineating the roles of the IC’s various analytical CT components. The NCTC also created a working group for alternative analysis to help improve the overall rigour and quality of CT analysis. (Source: http://www.nctc.gov/about_us/about_nctc.html )

In America, the situation, context, motivation and interest in creating such an institution should be seen separately.

State Responses in India

TAMIL NADU Chief Minister Jayalalithaa lately strongly defended the rights and interests of States and expressed concern over an emerging pattern wherein the States’ powers were sought to be abrogated either by the passage of Bills or issuance of notifications.

“Lack of consultation with the States and failure to take them into confidence is a cogent commentary on the system of governance at the Centre,” Ms Jayalalithaa told the Chief Ministers’ Conference on Internal Security in New Delhi.

Considering the State governments’ multi-farious functions and their limited potential to raise resources, the Union Government should come forward to provide liberal assistance for strengthening and modernising the police force.
“With all the avenues for raising financial resources being taken away one by one by the Central Government, the State governments are finding it increasingly difficult to make both ends meet.”

Describing the idea of separation of crime investigation from the law and order wing of the police, as provided for in the Supreme Court judgment on police reforms, as the “right way forward”, she, however, counselled that such large-scale changes could only be implemented gradually, as people should become familiar with the changing structures.

Calling for incentives to personnel of the intelligence wing, she wanted the Centre to reimburse the special incentive of 10 per cent of the basic pay given to the personnel of the State intelligence wing up to the level of Additional Superintendents of Police.

West Bengal Chief Minister Mamata Banerjee has not attended the internal security conclave held recently and is against the proposed NCTC.

What is known is that she was one of the most vocal opponents of New Delhi’s suggestion to set up a body, tentatively called the National Counter-Terrorism Centre (NCTC) after a similarly-named body in the US.

In February, Orissa Chief Minister Naveen Patnaik began a campaign against the NCTC which, he argued, would nibble away at India’s federal structure. After all, he argued, law and order and policing are State subjects and the creation of a national unit to tackle things like, say, Naxalism would lead to Delhi poking its nose into what State capitals could handle on their own, thank you.

Bihar Chief Minister Nitish Kumar said the core issue in the formation of the NCTC was the violation of the federal principle and emphasised on the need for more consultations and colla-boration between the Centre and the States to resolve all matters of internal security. “I had written to the Home Minister on February 28, 2012 that consultations be held with States to address their concerns on NCTC. Although a meeting was held in March at the level of officials, it served little purpose and we are not aware of any positive outcome of that meeting,”
Uttar Pradesh Chief Minister Akhilesh Yadav expressed concern over the open border with Nepal and sought “special policing” by the Centre to check any anti-national activity along it.

Participating in the Internal Security Conference of Chief Ministers in the national Capital Yadav—in his maiden appearance in a Chief Ministers’ Conference—pointed out that due to strict vigil on the country’s borders with Pakistan and Bangladesh, the possibility of anti-social and terrorist activity along the Indo-Nepal border has heightened.

“I would like to draw the attention of the Centre to the need for establishing adequate number of integrated check-posts and special police arrangements to control any possible anti-national activities along the 550-km-long open border with Nepal,” he said.

Gujarat Chief Minister Narendra Modi stressed that the UPA Government’s unilateral actions—such as the NCTC proposal—were creating distrust between the Centre and the States.

The Centre was creating a “state within a state” by considering changes to the RPF Act and the BSF Act, which would take away the powers of the State Police and meddle with subjects on the State list.

Himachal Pradesh Chief Minister Prem Kumar Dhumal said no decision on crucial issues like the NCTC should be taken before holding detailed discussions with States and sought financial and technical help from the Centre to help strengthen internal security. Dhumal said law and order was the responsibility of the States and they are fulfilling their duties well. “We need financial help and technical support.”

Madhya Pradesh Chief Minister Shivraj Singh Chouhan added that such efforts are a step towards “centralisation” and “against the spirit of federalism”. “In the fight against terrorism, the Central Government always talks of shared responsibilities but repeatedly resorts to unilateral actions.”

At the end of a fierce debate over the state of affairs in J&K in the State Legislature, Jammu and Kashmir Chief Minister Omar Abdullah made it clear that as long as the State Police was in the loop or was part of the possible operations in J&K, it would not mind the existence of a national authority to fight terror.
Tripura Chief Minister Manik Sarkar has also opposed to the NCTC proposal. “NCTC, we are opposing... because it is going to cross the rights of the state government. Thus, it is going to actually attack the federal structure of our country. This BSF (Border Security Force) amendment... also contains the same thing, BSF actually is going to take away the responsibilities of police, which is the domain of the State Government,” said Sarkar.

After criticising the Centre for “usurping the powers” of State governments and its now-withheld plan to set up a National Counter-Terrorism Centre at a meeting on internal security, in New Delhi, Chief Ministers of non-Congress governments—Jayalalithaa (Tamil Nadu), Narendra Modi (Gujarat) and Naveen Patnaik (Odisha)—had separate meetings to discuss strategies to counter the Centre’s move and uphold the States’ autonomy.

Prime Minister’s Statement

“THERE is no question that the burden of the fight against terrorism falls largely on the States’ machinery. The Centre is ready to work with the States to put in place strong and effective institu-tional mechanisms to tackle this problem,” said PM Manmohan Singh at the Conference of Chief Ministers on Internal Security on April 16, 2012 in New Delhi. Terming the task of dealing with the security challenges as “complex and onerous”, Dr Singh said it was an endeavour that required the united effort of everyone. “Internal security is a matter in which the States and the Centre must work together, hand in hand, and in harmony,” he added.

Federal Principle in the Indian Context

K.C. WHEARE defined the federal state as a state which has a “division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them”. [See K.C. Wheare, Federal Government, The English Language Book Society and Oxford University Press, London, 4th ed. (2nd impression 1971), p. 33]

The concept of the federal state has evolved over a period, with the political experiments. It was clear that some issues should be handled best by the national government, while some could be handled by the regional governments who can handle the issues of local interest. (See D.D. Basu, Comparative Federalism; Wadhwa and Company, Nagpur, 2nd ed., 2008, pp. 1-2) Federalism is a mechanism for effective governance of a Union to “reconcile unity with municipality, centralisation with decentralisation and nationalism with localism”.

In the first proposition given in the case of the State of West Bengal versus Union of India, the argument given at the bar was that “The Consti-tution having adopted the federal principle of government the States’ share the sovereignty of the nation with the Union, and therefore power of the Parliament does not extend to enacting legislation for depriving the States of property vested in them as sovereign authorities.” How-ever, the Honourable Court held that the Indian “…Constitution... was not true to any traditional pattern of federation”. Sinha, C.J., argued that in India there was withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers save those withheld from both the Union and States by the Constitution. He continued saying that the legal sovereignty of the Indian nation was vested in the people of India and the political sovereignty was distributed between the Union of India and the States with greater weightage in favour of the Union.

The Judge concluded that “…it would not be correct to maintain that absolute sovereignty remains vested in the States”. On examining the various provisions of the Constitution, one can conclude that the distribution of powers—both legislative and executive—does not support the theory of full sovereignty in the States so as to render it immune from the exercise of legislative power of the Union Parliament. (Refer—State of West Bengal versus Union of India, AIR 1963, SC 1241)
But things have changed over the years. Now, in the era of coalition governments the States are becoming more powerful.

In the case of State of Rajasthan versus Union of India (AIR 1977, SC 1361) Beg, C.J., considered the Indian Constitution as “more unitary than federal” with the “appearance” of a federal structure. He also said that, “In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated and socially, intellectually and spiritually uplifted.” (Ibid., p. 1382)

The argument that the Indian Constitution is a federation is nothing but a myth. This has again been proved. The demand has been raised from time to time for re-ordering Indian federalism due to the rise of multiple political parties at the regional level, who want to improve their own position. [M.P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur (5th ed.), 2008 reprint. p. 725]

The Government of Tamil Nadu appointed the Rajamannar Committee in 1969 to examine the entire question regarding the relationship that should exist between the Centre and States in a federal set-up, taking into consideration the provisions of the Indian Constitution and suggest amendments to it for providing greater autonomy to the State governments. (Report of the Centre-State Relations Inquiry Committee, Government of Tamil Nadu, 1971, p. 1)

Though India has external sovereignty, within India neither the Union nor the States enjoy [absolute] internal sovereignty due to the division of powers between the Union and States in which both the governments have plenary power within their assigned spheres. [H.M. Seervai, Constitutional Law of India, Vol. I, Universal Law Publishers, (4th ed.), p. 296] Though the Union Government has been assigned the matters which are of national importance, the matters concerning the States are no way subordinate, but they are of a different importance than the Union. (Ibid., pp. 296-97)

There has been a change in the construction of the nature of Indian federalism: in the case of S.R. Bommai versus Union of India, it has been held that “democracy and federalism are essential features of our Constitution and are part of its basic structure”. (AIR 1994, SC 1918, p. 1977)

The Indian federation is not the result of an agreement between independent units, and secondly, the units of the Indian federation cannot leave the federation. The Indian Constitution contains federal and non-federal features. The legislative, administrative and financial relations are worth mentioning here.

The Indian Constitution provides for a number of mechanisms to promote co-operative federalism. Article 263 empowers the President to establish an Inter-State Council to promote better co-ordination between the Centre and States. The Inter-State Council was formally constituted in 1990. It is headed by the Prime Minister and includes six Cabinet Ministers of the Union and Chief Ministers of all the States and Union Territories. Zonal Councils were set up under the State Re-organisation Act, 1956, to ensure greater cooperation amongst States in the field of planning and other matters of national importance. The Act divided the country into six zones and provided a Zonal Council in each zone. Each Council consists of the Chief Minister and two other Ministers of each of the States in the zone and the administrator in the case of the Union Territory. The Union Home Minister has been nominated to be the common Chairman of all the Zonal Councils.
In the coalition era, one cannot simply brush aside the concerns of the States that the powers that be at the Centre could use the proposed NCTC against political opponents. Take, for example, the Armed Forces Special Powers Act (AFSPA). With regard to Jammu and Kashmir and the North-East, the Centre cannot simply ignore the recent remarks of the UN Special Rapporteur on Human Rights Defenders, Margaret Sekaggya, and the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Christof Heyns, on the AFSPA. Christof Heyns had specifically called for its repeal saying that the AFSPA has no place in a democracy. He had also said that the AFSPA in effect allows the state to override rights in the disturbed areas in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency.

The proposed NCTC will empower the Central agency to search, seize, and also make arrests without notice to the States. It is specially this clause which has enraged friends and foes alike. The unilateral decision and lack of a consultative process before announcing the decision to set up the NCTC is a major grievance of most State governments. Definitely, it will affect the spirit of Centre-State relations and democracy at large.

The main task of the NCTC would be to ensure that a wide variety of security organisations in the country work in tandem, at least on issues related to terrorism. It will also have the power to seek information, including documents, reports, transcripts, and cyber information from any agency, including from the Central Bureau of Investigation (CBI), National Investigation Agency, National Technical Research Organisation, Directorate of Revenue Intelligence and all seven Central armed police forces including the National Security Guard (NSG). The body, which will function under the Intelligence Bureau, would be given its own operational wing with powers to arrest and conduct searches under Section 43A of the Unlawful Activities Prevention Act.

There are enough forums, like, for instance the Inter-State Council and the National Development Council, to flag such vital issues. In fact, the States were not duly consulted when the Centre set-up the National Investigating Agency (NIA) in 2009. Why do we need a proliferation of institutional mechanisms? There is no doubt that India is understaffed in many departments. Instead of strengthening the institutional mechanisms, there is no point in creating another institutional set-up on the United States model. Ironically, no case of terrorism has so far brought the culprits to book in India. In other words, the trials are ongoing, half-way through, and there is no follow-up action.

There is no doubt that India’s NCTC seems to be modelled on its American counterpart, yet in the US the NCTC does not have powers to arrest or interrogate. The unilateral decision has drawn sharp criticism from the Chief Ministers of various States. They see it as an encroachment on the powers of the States, usurpation of the States’ authority, and a danger to the federal polity.

The constitutionally elected State governments are duty-bound to oppose and resist any move by the Centre infringing the autonomy of the States in keeping with the spirit of cooperative federalism in the time of coalition politics. The States can put in place strong and effective institutional mechanisms to tackle any law and order problem. In this respect, terrorism is not unique. Any measure which relates to the security issue in coping with the federal spirit will have to take into consideration the changing needs of the society, the historical background and the actual practice of governance to ascertain how far it is in conformity with the Constitution.

The author holds a Ph.D from Jawaharlal Nehru University, New Delhi. Presently, he teaches Political Science and International Relations at St. Joseph’s College (Autonomous), Bangalore. He can be reached at jayanpa@gmail.com

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