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The National Counter Terrorism Centre

The debate about the central government's attempt to expand the jurisdiction of the Intelligence Bureau through the National Counter Terrorism Centre giving it policing power under the Unlawful Activities (Prevention) Act has focused on the violation of the Constitution's division of powers between the centre and the states. This is an important criticism but the bigger picture is of the centre taking step after step to expand its policing powers and of the use of the IB as a police agency which together risk eroding the civil liberties of Indians. Parliamentarians, state governments and civil society need to pay closer attention to legislative efforts undertaken in the name of security lest they allow a counterterrorism zeal to wholly abrogate the fundamental rights chapter of the Constitution.


The National Counter Terrorism Centre

The Creation of the Indian Stasi

South Asia Human Rights Documentation Centre

disseminate data, intelligence and assessments on terrorists and terrorist threats across India; to coordinate national and state agencies for counterterrorism intelligence-gathering; and to plan and coordinate counterterrorism operations.2 It will have three divisions: a collection and dissemination of intelligence division, an analysis division and an opera-

The debate about the central government’s attempt to expand the jurisdiction of the Intelligence Bureau through the National Counter Terrorism Centre giving it policing power under the Unlawful Activities (Prevention) Act has focused on the violation of the Constitution’s division of powers between the centre and the states. This is an important criticism but the bigger picture is of the centre taking step after step to expand its policing powers and of the use of the IB as a police agency which together risk eroding the civil liberties of Indians. Parliamentarians, state governments and civil society need to pay closer attention to legislative efforts undertaken in the name of security lest they allow a counterterrorism zeal to wholly abrogate the fundamental rights chapter of the Constitution.

South Asia Human Rights Documentation Centre ( is based in New Delhi.

Experience should teach us to be most on our

guard to protect liberty when the govern

ment’s purposes are beneficent. Men born to

freedom are naturally alert to repel invasion

of their liberty by evil-minded rulers. The

greatest dangers to liberty lurk in insidious

encroachment by men of zeal, well-meaning

but without understanding.

–Justice Louis Brandeis1

he federalism debates surrounding the creation of the National Counter Terrorism Centre (NCTC) are skirting the much bigger issue of whether the NCTC is part of a wider executive programme to extend the central government’s policing powers. While the debates touch on important issues, they fail to notice that the centre has been expanding the police powers of many of its major security forces, including the Border Security Force (BSF), the Central Reserve Police Force (CRPF), the Sashastra Seema Bal (SSB) and the Railway Protection Force (RPF), and has granted itself police powers through the National Investigation Agency (NIA). Granting intel ligence agencies policing powers is the next step in that process. If permitted, it exponentially increases the power of the centre to police Indian citizens without constitutional fundamental rights protections.

The executive order establishing the NCTC should serve as a wake-up call to parliamentarians, state governments and civil society to pay closer attention to legislative efforts undertaken in the name of security lest they allow counterterrorism zeal to wholly abrogate the fundamental rights chapter of the Constitution.

The National Counter Terrorism Centre

The executive order established the NCTC to collect, integrate, analyse and

march 17, 2012

tions division.3 The NCTC will be located within the Intelligence Bureau (IB), which reports to the Union Ministry of Home Affairs.4 The order permits the NCTC operations to begin on 1 March 2012,5 however, its opening is expected to be delayed until after further consultations with the states.6

The executive order authorises the NCTC to undertake searches, to seize property, to demand information from other law enforcement and intelligence agencies, to make arrests, and to requisition India’s special forces to carry out its tasks.7 Section 43A of the Unlawful Activities (Prevention) Act (UAPA), 1967 provides the legal basis for these powers;8 it permits the central government to order an officer of the designated authority to arrest any person if s/he has “reason to believe” that person committed an unlawful act as defined by the UAPA and/ or search any property believed to have been acquired through activities rendered illegal by the Act.9 According to the union minister of home affairs, the order’s explicit reference to Section 43A implies seizure and arrest procedure laid


down under Section 43B. Under Section 2(e), the designated authority can be a member of the central government with a rank of joint secretary or higher.11 The executive order appoints an offi cer of “the rank of Additional Director” of the IB as the head of the NCTC and as the designated authority under UAPA.12

Federalism and Public Order

The creation of the NCTC has met with fierce opposition from as many as 10 chief ministers. India’s Constitution establishes a federalist structure in which power is divided between the centre and the states, with some areas of concurrent power. One of the primary challenges to

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the NCTC is that by giving this central government body the powers to search, seize and arrest, the executive overstepped its constitutional authority that treats policing powers and public order matters strictly as state concerns.13 The states are solely responsible for these matters according to the Seventh Schedule, List II of the Constitution.14 The central government has defended against these charges by claiming that the order fits within its constitutional duty to protect internal security, making an oblique reference to Article 355.15

The breadth of activities criminalised by the UAPA as unlawful activities or as terrorist acts stretches far beyond internal security threats to cover public order violations, which means the NCTC’s jurisdiction violates the Constitution’s division of powers between the centre and the states. The Commission on Centre-State Relations defi ned internal security as:

security against threats faced by a country within its national border, either caused by inner political turmoil, or provoked, prompted or proxied by an enemy country …causing insurgency, terrorism or any other subversive acts that target innocent citizens, cause animosity…intended to cause or causing violence, destroy or attempt to destroy public and private establishment.16

Based on this definition, a threat to internal security requires: (1) an intention,

(2) to cause terror, animosity leading to violence, or the destruction of society or the government, and (3) using insurgency, terrorism or other subversive acts.

Under the UAPA, any activity related to promoting cession or secession, that “disclaims, questions, disrupts...sovereignty and territorial integrity of India” or that “cause[s] disaffection with India” is unlawful regardless of any connection to violence or terrorism.17 It simply targets unfavourable political beliefs, which if peaceful should be legal, without requiring an intention to commit insurgency, terrorism, incitement to violence or the destruction of society or the government. For example, passing out leaflets on behalf of a secessionist movement could result in a UAPA conviction as abetment to the commission of an unlawful activity.18 Even simply being a member of an organisation that has

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march 17, 2012

been deemed unlawful for undertaking such advocacy efforts, without any showing that the individual took any steps to cause violence, terrorism, insurgency or governmental or societal destruction, is a punishable offence.19 The breadth of activities labelled as unlawful by the UAPA means that the NCTC would have police powers to investigate ordinary law and order crimes, which violates federalism.

Similarly, the UAPA’s definition of “terrorist act” is so broad and vague that it appears to cover any criminal activity as long as the perpetrator uses a weapon that could injure another, damage property, or disrupt essential supplies or services.20 Whereas, “unlawful activities” criminalises political opinion without the other two elements necessary to qualify as a threat to internal security, “terrorist act” criminalises armed violence without any requirement of an intention to “further an underlying political or ideological goal”, a basic defi ning feature of both terrorism21 and a threat to internal security. By relying on the UAPA for its legal basis, the executive order impermissibly expands the central government’s jurisdiction beyond internal security into public order matters.

Federalism and Police Powers

Critics of the NCTC also complain that the executive order permits the central government to “substitute” its police powers for that of the states,22 although the Constitution grants the states sole jurisdiction over the police.23 As noted earlier, the central government appears to justify the NCTC’s police powers as inherent in the executive’s Article 355 internal security duties.24 NCTC supporters have argued that giving a central government agency police powers is necessary given past failures of state governments to follow up on counterterrorism intelligence25 and fear that the state police will slow down NCTC operations.26

It is highly doubtful whether the central government can ever grant itself police powers,27 despite its responsibility for internal security. The Constitution makes clear that the police are a state responsibility and allows the central

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government to intervene in policing only when it is necessary to “aid civil power”.28 The language of this provision suggests that the grant of such police powers is intended to be temporary as the central government forces only have them “while on...deployment”.29 The Constitution’s division of jurisdiction over the railways lends further support for the point that it intended to wholly restrict the central government from employing police powers other than when a state’s civil power is failing or weak. Under the Entry 22 of List I, Schedule VII, the central government is competent to legislate on railways;30 yet, Entry 2 of List II places railway police under the state jurisdiction.31 This division of power shows that the Constitution intended to deprive the central government of police power even with respect to matters that otherwise fall primarily within its jurisdiction.

With respect to a similar debate regarding the grant of police powers to the NIA, the Ministry of Law concluded “that ‘police’ is a State subject and its functions cannot by a Parliamentary Law be conferred on an existing or new Central Police Force except under Article 249 or 252 of the Constitution”.32 In a discussion with the director of the Federal Bureau of Investigation (FBI), United States, about the NIA, the Union Minister of Home Affairs P Chidambaram conceded:

that he was coming ‘perilously close to crossing constitutional limits’ in empowering the NIA. He explained the concept of a ‘federal’ crime does not exist in India, with law and order the responsibility of the state governments. Federal law enforcement agencies, therefore, have to seek permission of the states in order to become involved in an investigation. He opined that the NIA law would be challenged in court because it ascribes certain investigating powers to the NIA, which may be seen to confl ict with responsibility that is exclusively with the states.33

The central government is attempting to assuage the states’ fears of the NCTC encroaching on their jurisdiction by declaring that the state police will be informed when the NCTC employs its police powers34 and that standard operating procedures (SOPs) will be drafted to ensure that the state police and NCTC

National Institute of Advanced Studies

Indian Institute of Science Campus, Bangalore 560 012 Tel. 080-22185000, Fax: 080-2218 5028 URL:


The National Institute of Advanced Studies (NIAS) is a unique Indian institution conducting multidisciplinary research in areas that bridge the gap between the natural and engineering sciences, social sciences, humanities and the arts. A limited number of research scholarships are available in the Institute for bright and committed postgraduate students interested in pursuing independent research across disciplines towards a doctoral degree.

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    Head-Administration National Institute of Advanced Studies Indian Institute of Science Campus Bangalore 560 012, India,

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    Economic & Political Weekly


    will work together.35 It also points to the requirement in UAPA Article 43B that arrested persons and seized property must be brought to the nearest police station to show that ultimately jurisdiction will be returned to the state police.36 SOPs, assurance of mutual cooperation and even procedure that eventually relinquishes jurisdiction to the state police cannot save the executive order if the central government’s police powers at all usurp the powers granted solely to the states by the Constitution.

    This last point also applies to the issue of whether the executive order can be saved through the consent of the state governments. The chief ministers opposing the executive order bitterly complain that the central government unilaterally created the NCTC whose mandate and functions encroach on state powers.37 They argue that the NCTC needs to be established with the consensus of the states, suggesting that if they had been consulted, they would not necessarily oppose the NCTC.38 This argument misunderstands constitutional supremacy – states cannot consent to the central government violating the Constitution.

    The chief ministers, however, are missing the bigger picture. Permitting the NCTC police powers is part of a much larger central government campaign to expand its powers. As already discussed, Parliament extended police powers to the NIA, which is mandated to “investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State” among other offences.39 Parliament is considering legislation granting the BSF powers to search, seize and arrest as part of the central government’s internal security powers.40 The Ministry of Home Affairs justifies the expansion of these powers to the BSF in part on the fact that the Indo-Tibetan Border Police Force and the SSB, two other centrally administered armed forces of the union, already have them. The central government has also reserved the authority to confer policing powers on the CRPF.41 Another bill has been tabled before Parliament to grant these powers to the central government’s RPF.42 The expansion of police powers to the NCTC cannot be

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    march 17, 2012

    viewed in isolation or else one day the states will wake up to a central government armed with full police powers and in a position akin to that of the chief minister of Delhi who cannot order the posting of a traffi c constable.43

    As a Matter of Policy

    Even if granting the NCTC policing powers is somehow construed as consistent with federalism under the Constitution, as a matter of policy, it must be rejected. The executive order effectively grants the IB these powers – powers it currently does not have44 – despite the threat they pose to the civil liberties of all Indians. Traditionally, the role of intelligence agencies is to gather and analyse information, turning it into intelligence that can inform policy priorities and decisions. India’s IB is not a law enforcement agency, which means it is not governed by statutes that restrict law enforcement actions to protect civil liberties.45 In fact, it operates unconstrained by the rule of law as they are not governed by any statute.46

    Intelligence agencies everywhere operate on secrecy and work on the basis of suspicion. They operate using cloak-and-dagger techniques, including through monitoring and surveillance, which, in India can be conducted by the IB without any independent oversight or even the need for offi cial authorisation. Granting the IB police powers raises the fear that it will resort to the “intrusiveness, harshness, and deceit” inherent in intelligence collection to gather evidence from criminal prosecution.47 If the IB is permitted to operate without the restrictions placed on the state police, they are likely to regularly violate civil liberties to guarantee terrorism convictions.48 Knowing of the IB’s investigative freedom, it would be far too easy for the state police to hand criminal investigations over to the NCTC to avoid the restrictions placed on them.49 Thus, granting the IB policing powers, through the NCTC, is likely to end in the evisceration of civil liberties in the name of internal security.

    History supports the fears that arise

    from merging intelligence and law en

    forcement powers, as such a merger has

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    been linked to totalitarianism. The secret nature of intelligence work can easily permit the executive to use its intel ligence agencies to police its opposition into submission. India’s intelligence agencies, and the IB in particular, are already notorious for using their resources to monitor political opposition leadership in hopes of locating information that will give the government of the day an advantage; police powers would only increase this risk of abuse.50 The US refused its intelligence agencies domestic law enforcement functions51 based primarily on “fears that a unifi ed intelligence, security, and police force would tend towards abuses associated with the Gestapo of Nazi Germany and the Soviet Union’s KGB”.52 Parliamentarians, state governments and civil society would do well to heed these lessons from history and follow the US example.


    The central government’s effort to expand the jurisdiction of the IB through the NCTC by permitting it policing power under the UAPA not only violates the Constitution’s division of powers between the centre and the states, but also risks vastly eroding the civil liberties of Indians. Parliamentarians, state governments and civil society need to remain alert to the central government’s apparent agenda to expand its policing powers at the expense of the state’s jurisdiction and core democratic principles and rights.


    1 Dissenting, Olmstead vs United States, 277 US 438 (1928).

    2 Order para 2.5 (on ¿le with author). 3 Order para 2.4. 4 Order para 2.2.

    5 Order para 1.2. 6 “Blow to Anti-Terror Intelligence Hub: NCTC Will Not Be Operational” from March 1, PTI,

    Times of India, 27 February 2012. 7 Order paras 3.2 and 3.5. 8 Order paras 3.1 and 3.2. 9 43A permits arrest if the officer “know[s] of a

    design to commit any offence ...or has reason to believe from personal knowledge or information given by any person...or from any document… or any other thing which may furnish evidence” (emphasis added).

    10 Vishwa Mohan, “PC Sends 11-Point Note to CMs to Allay NCTC Fears”, Sunday Times of India, 26 February 2012.

    11 Order para 3.1 read with Unlawful Activities (Prevention) Act, 1967, Sec 2(e).


    12 Order paras 2.2 and 3.1. The order is sloppily drafted as para 2.2 describes the “Head” of the NCTC, whereas para 3.1 names him/her “Director”.

    13 Text of the DO Letter dated 17 February 2012 addressed by Selvi J Jayalalithaa, the Chief Minister of Tamil Nadu to Manmohan Singh, the Prime Minister of India, Press Release No 130, 17 February 2012; “More CMs Join Anti-NCTC Chorus”, PTI, Times of India, 20 February 2012; “More States Oppose NCTC, Govt in Firefighting Mode”, TNN, Times of India, 19 Februry 2012; “Spies Shouldn’t Police Us”, editorial, The Hindu, 19 February 2012; “What’s the Fuss on NCTC”, The Sunday Guardian, 17 February 2011.

    14 Seventh Schedule, List II, 1 and 2, Constitution of India.

    15 See example, “PC Defends NCTC”, “Country’s Security Shared Responsibility”, Badu, The Indian Express, 18 February 2012; “NCTC Issue: Mamata Banerjee Snubs P Chidambaram at NSG”, The Economic Times, 19 February 2012. Article 355 reads: Duty of the Union to protect States against external aggression and internal disturbance – It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.

    16 Commission on Centre-State Relations, Report Volume V, Internal Security, Criminal Justice and Centre-State Cooperation (2010 para 1.3.02).

    17 Section 2(o).

    18 Section 13(b). There is some jurisprudence in support of a requirement that political opinions cannot be punished as criminal without some connection to violence or incitement, but even if this is the case, passing out leafl ets on something as sensitive as secession could too easily be interpreted as incitement.

    19 Section 10. Courts are not allowed to convict simply for association with an unlawful organisation, but instead, require evidence that the person “resorted to acts of violence or incited people to imminent violence or does an act intended to create disorder or disturbance of public peace by resort to imminent violence”. See Sri Indra Das vs State of Assam, (2011) 3 SCC 380 para 7. Again, it is easy to locate incitement from peaceful advocacy work as long as talk of secession is considered infl ammatory.

    20 The Unlawful Activities (Prevention) Act, 1967 Section 15. The definition appears to require the armed person to either intend or do something likely to cause terror or threaten the “unity, integrity, security or sovereignty of India”. Without any definition, terms such as unity, integrity, security and sovereignty are so broad it is hard to imagine a criminal activity that would not be considered likely to harm one of them. Additionally, “terror” could easily be interpreted by its ordinary definition of extreme fear; any armed act is likely to cause extreme fear in any person who happens to be a witness.

    21 The Unlawful Activities (Prevention) Amendment Act, 2008: Repeating the Mistakes of the Past, Asia Pacific Human Rights Network, Human Rights Feature HRF/191/09, 22 January 2009 (citing the UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism). See e g, defi nition of “international terrorism” in the United States Foreign Intelligence Surveillance Act 50 USC 1801(c).

    22 “Put NCTC Order in Abeyance: BJP”, Asian Age, 22 February 2012.

    23 Constitution of India, Seventh Schedule, List

    II (2).

    24 “Spies Shouldn’t Police Us”, supra note 13.

    25 Ibid.

    26 “To Tackle Terror, Lets Get Mature”, Asian Age,

    20 February 2012.

    27 The Central Bureau of Investigation is permitted police powers only with the permission of the state government and following their appointment into a state police station. Delhi Special Police Establishment Act, 1946, Articles 5 and 6; Central Bureau of Investigation, “CBI and It’s Roles”, available at aboutus/cbiroles.php.

    28 Schedule VII, List I (2A) and List II (2).

    29 Schedule VII, List I (2A).

    30 Schedule VII, List I (22).

    31 Schedule VII, List II (2).

    32 Commonwealth Human Rights Initiative, Issue Paper on the National Investigation Agency Act, 2008, Section B(1), available at india/police-reforms/issues_paper_on_the_ national_investigation_agency_act_2008.pdf. Neither article applies to the current Executive order.

    33 195165: Steven White, Charge d’Affaires, Chidambaram Pledges Counter-Terrorism Cooperation, March 2009 para 12, available at www.thehindulcom/news/the-india-cables/ the-cables/article1551529.ece.

    34 Jayanta Gupta, “War of Nerves between Centre, Mamata Intensifies over NCTC”, Times of India, 18 February 2012.

    First National Conference of the Health Economics Association of India The Health Economics Association of India (HEAI) and the Public Health Foundation of India (PHFI) will co-host a two day conference on Universal Health Coverage (UHC, 11-12th April, 2012) followed by a one day Post-Conference symposium (13th April, 2012) involving several technical sessions on health economics. Several national and international experts, policy makers, civil society groups, academia and media would participate in the three day deliberations. The conference is expected to deliberate and discuss the ways and means of advancing the agenda and key challenges of achieving UHC. Several plenary and panel discussions are planned to be organized during the conference. Some of the broad themes of the conference would include: i) health ſnancing, ii) health workforce, iii) access to medicines, iv) governance and institutional capacities; v) social determinants of health, etc. Efforts will be made to ſnancially support participants for their travel, boarding and lodging. Students and researchers will be reimbursed travel expenses for the shortest round trip (AC 3-tier) train fares. Other participants will be reimbursed for shortest distance airfare (economy class). Due to limited funding availability, participants are encouraged to contact us at the earliest. Interested participants may contact us at for membership and registration details. You may also visit our website for further details or contact us at 011-49566000 Ext. 6008 and Ext. 6055. Dr. Gita Sen Dr. Sakthivel Selvaraj President, HEAI General Secretary, HEAI heai

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    Economic & Political Weekly


    35 Mohua Chatterjee and Vishwa Mohan, “NCTC 45 See Stewart A Baker, “Should Spies Be Cops?”, 50 Federation of American Scientists “Intelligence Looks Uncertain, Mamata Says It’s on Hold”, 97 Foreign Policy, Winter 1994-95, at 40. Bureaus”, available at http://www.globalsecu-Times of India, 23 February 2012. 46 Manish Tewari recently proposed a private; See also,

    36 “Blow to Anti-Terror Intelligence Hub”, supra member’s bill to govern the IB, the Research & Swapan Dasgupta, “The Indolent Giant – India note 6. Analysis Wing and the National Technical Re-Must Modernise Its Intelligence Gathering search Organisation ostensibly to place these Machinery”, The Telegraph, 9 January 2009;

    37 Text of the DO Letter, supra note 13; “More CMs

    agencies under the rule of law. The bill does lit-see also, Bibhuti Bhushan Nandy, former addi-

    Join Anti-NCTC Chorus”, supra note 13.

    tle more than maintains the opacity of the in-tional secretary, cabinet secretariat, R&AW

    38 Text of the DO Letter, supra note 13; “Parlia

    telligence agencies and consolidates the execu

    and direct general (redt), Indo-Tibetan Border

    39 See Preamble of the National Investigation ligence Reform”, Economic & Political Weekly,

    of its time, manpower and other resources in

    Agency Act, 2008. 24 December 2011.

    Homeland Defense and Security, Vol 3, No 2,

    2011, Para 1.8.

    June 2007, available from http://www.hsaj.

    evidence, while intelligence gathering is often

    42 “Railway Protection Force Bill to be Introduced org/?fullarticle=3.2.2.

    impressionistic. Even when intelligence agen

    in Parliament”, PTI, The Hindu, 17 November

    cies have that hard evidence, in order to follow 51 Baker, supra note 46 at 36.


    through with prosecutions, they may need to 52 Fred F Manget, “Intelligence and the Criminal 43 See, e g, “No Statehood for Delhi: Dikshit”, turn over sources that may be more valuable Law System, Symposium Spies, Secrets, and TNN, Times of India, 3 August 2004. for other purposes and will not want identifi ed. Security: The New Law of Intelligence Over44 Namrata Biji Ahuja, “NCTC Can Arrest, Search, Baker, supra note At 42. sight of Intelligence”, 17 Stanford Law & Policy Seek Info”, Asian Age, 18 February 2011. 49 See Baker, supra note. Review, 415, 416 (2006).




    ” “ ” --






    march 17, 2012 vol xlviI no 11

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