Intel agencies need parliamentary oversight

IN July 2009, I asked a series of questions in the Lok Sabha with regard to the legal architecture that undergirds our law enforcement and intelligence services.

The mere mention of a subject in the list of legislative powers neither gives an organisation statutory life or legal legitimacy.

The government’s answers in Parliament pertaining to the legal basis of intelligence agencies were intriguing, if not enigmatic. With regard to the Intelligence Bureau (IB), it stated: "The Intelligence Bureau figures in Schedule 7 of the Constitution under the Union List." When pressed that possibly this may not be the correct answer, the government unequivocally reiterated: "The Intelligence Bureau finds mention at Serial Number 8 in the Union List under the Seventh Schedule of the Constitution."

Entry 8 in the Union List merely gives the legislative power to enact a statute to bring a Central Bureau of Intelligence, to be called by whatever name (IB or BI), into existence. The mere mention of a subject in the list of legislative powers neither gives an organisation statutory life or legal legitimacy.

Had the legislative initiative I had proposed 13 years ago fructified into a law, the unnecessary and avoidable embarrassment that India is being subjected to today with regard to allegations by the governments of Canada and US, could have been very well avoided. We could have argued, and rightly so, that we have a comprehensive, holistic and vigorous external oversight mechanism at the apex level of our national legislature, that is more than competent to exercise ‘broad superintendence’ over our intelligence structures. Any wild cards or loose cannons could have been effectively proscribed.

In response to a question pertaining to the legal underpinnings of India’s external intelligence service, the Research and Analysis Wing (R&AW), the government did not befuddle. It candidly admitted, "There is no separate/specific statute governing the functions/mandate of the R&AW." However, in 2000, following the report of the Task Force on Intelligence Apparatus, which examined the entire intelligence system in the country, "a formal charter listing the scope and mandate of the R&AW was formally approved by the government of India".

In stark contrast, intelligence organisations around the world have a solid legal footing and in most cases are subject to penetrating parliamentary oversight that, if the need arises, goes into operational aspects also in closed-door sessions.

The Central Intelligence Agency (CIA) of the United States, created by the National Security Act of 1947, was specifically empowered by the Central Intelligence Agency Act of 1949 to carry out the duties assigned to it by the 1947 Act. The House and Senate intelligence committees in the US are regularly and extensively briefed by the American intelligence ecosystem consisting of 18 organisations, including the military intelligence programme.

MI5, the domestic intelligence service of the United Kingdom, draws its legal authority from The Security Services Act, 1989, and its sister organisation, MI6 or the SIS, from the 1994 Intelligence Services Act, thereby subjecting its activities to the scrutiny of the British Parliament’s Intelligence and Security Committee.

The Australian intelligence agencies are regulated by the Intelligence Services Act of 2001 and they are accountable to the Parliamentary Joint Committee on Intelligence and Security. The Canadian intelligence services are regulated by the Canadian Security and Intelligence Services Act, 1984, and superintended by the National Security and Intelligence Committee of Parliamentarians. In New Zealand, the Intelligence and Security Act of 2017 is the ground norm and the activities of the intelligence services are subject to monitoring by the Parliamentary Intelligence and Security Committee. These are the Five Eyes.

The Foreign Intelligence Service of Russia draws its legal basis from the Law on Foreign Intelligence Organs, 1996. Nominal parliamentary control is exercised under Article 24 of the law. The German Federal Intelligence Service, Bundesnachrichtendienst, draws its legal sustenance from the Federal Intelligence Service Law, 1990, as amended in 2016. Its activities are supervised by the Parliamentary Control Commission for intelligence services which, in turn, is empowered by the Act on the Parliamentary Control of Intelligence Activities, 1978, as amended on July 29, 2009.

In Japan, the Public Security Intelligence Agency, which after its reorganisation in 1996 started focusing on foreign intelligence collection, is empowered by the Subversive Activities Prevention Law that came into force on July 21, 1952. The Cabinet Intelligence and Research Office is another intelligence agency mandated under the cabinet law. Oversight is exercised by the Japanese Parliament Diet through the Board of Oversight and Review of Specially Designated Secrets.

All this led to a sustained exercise over a period of two years in collaboration with the Observer Research Foundation, wherein a cross-section of stakeholders were extensively consulted to try and conceptualise a law to put the IB, the R&AW and the National Technical Research Organisation on a proper legal footing. There was broad support for the need of such a law within the retired echelons of the intelligence community. There were a few sceptics also. On August 5, 2011, I moved the Bill in the Lok Sabha.

This Bill aimed to regulate the functioning and the exercise of powers of Indian intelligence agencies within and beyond the territory of India and provide for coordination, control and oversight over such agencies.

The proposed oversight is robust parliamentary supervision by a Parliamentary Committee consisting of the Rajya Sabha Chairman, Lok Sabha Speaker, Prime Minister, Minister of Home Affairs, Leader of the Opposition in the Lok Sabha and the Rajya Sabha, one member each from both Houses to be nominated by the presiding officers of the respective Houses as members. This is as responsible a slate of people that you can get in a parliamentary democracy, though it is still heavily loaded in favour of the government if you look at the current cast of eminences.

There was a buzz around the Bill after it was introduced in the Lok Sabha, but the proposed legislation lapsed when I became a minister in 2012.

On December 3, 2021, I reintroduced the Bill in the 17th Lok Sabha (2019-24). Unfortunately it never got marked up for discussion till the 14th and final session of that parliamentary term. I again reintroduced the Bill on August 9, 2024, in the 18th Lok Sabha.

The reason why I have been assiduously pursuing this initiative across governments of the United Progressive Alliance and the National Democratic Alliance is because like in other democracies around the world, external legislative/parliamentary oversight over intelligence structures is a necessary imperative.

It is a reform whose time has come.