There is a fine distinction between an intelligence agency and an investigative agency. Inclusion of the CBI in the list of exceptions under the RTI Act is a clear non-understanding of this fine distinction — or, should I say, it was deliberate — and the reason for this is the lack of respect for the privacy of people. In R. M. Malkani case, the privacy of an accused was infringed to record the conversation between him and the complainant, of course, without the knowledge of the accused; a contention was raised that the evidence was inadmissible for having being collected illegally by infringing the privacy of the accused; however, the Supreme Court overruled the contention. Here is where lies the problem: the collection of information an by an investigative agency in the course investigation shouldn’t be anything othan than the public information or the private information collected by a procedure established by law. If not, it becomes intelligence, which by its very nature is intrusive — assuming that the intelligence agencies never collect information by a procedure established by law, and it’s no point debating it. If the investigative agencies are allowed to invade the privacy of people without following a procedure established by law, it would be anarchy, not law; and the investigative agencies will cease to be the institutions of a Democracy. However, the police forces in this country have Crime Investigation Departments (CID), which do nothing else but intrude into the privacy of people; so much so that they want to make everything public by installing cameras at each and every place, by collecting IRIS data of each and every Indian, etc. And, of course, there are also the National Investigative Agency ( NIA), the Central Bureau of Investigation (CBI), etc., which also intrude into the privacy of people with impunity.
Now comes the National Counter Terrorism Centre (NCTC), a nodal agency to co-ordinate the activities of all the investigative and intelligence agencies of the country with the perspective of controlling terrorism. An intelligence agency can’t control the investigative agencies, but, definitely, it can collect legitimate information from them. I don’t know what exactly this new agency is going to do, but if it is going to control the investigative functions of the police, then the concerns of the states are well-founded not only because it infringes upon the rights of the states but also because it will turn all police forces into intelligence bureaus, which is dangerous; but if such is not the case, the concerns of the states are obviously misconceived.
However, I have a fundamental problem with the growth of intelligence agencies because they are beyond law, non-answerable to anybody, working under no compulsions whatsoever. In India, they are created by administrative orders, but, even if assuming they were responsible to the parliament, it doesn’t change things much; they are all the same! And, since there are no privacy laws in India, they can very much do whatever they want. A citizen can go to the Supreme Court u/a. 32 r/w a. 21 of the Indian Constitution r/w a 21 for the protection of his Right to Privacy, but only if he has knowledge of its infringement: The activities of the intelligence agencies are completely secretive, and no one knows what they do and why they do it. In other words, the presence of intelligence agencies in a country is inversely proportional to the happiness of the people residing therein.
I don’t know what is the level of terrorism threat that India is facing, but the creation of any new intelligence agency directed towards blurring the distinction between intelligence and investigation is completely undesirable; however, if the creation is directed towards making the distinction obvious by taking the intelligence functions away from the police…well, I think, it can be allowed, but only if the threat of terrorism is real and extreme.
©2012 Ankur Mutreja