Reign Of Terror
The continuing stand-off between the dozen or so Chief Ministers and the Central Government over the National Counter-Terrorism Centre shows no signs of reaching a solution. The various State heads accuse the Centre of federal over-reach, of having encroached on a field purely within the States’ domain — criminal law — and ask why they were not consulted. The Centre’s responses, that terrorism knows no geographical boundaries and that a dialogue can be retrofitted, have not (yet) placated the angry Chief Ministers, or convinced anyone.
All this dust-kicking appears to be little more than the usual power struggle, and it occludes matters that lie at the heart of our democracy: civil liberties, freedom, and guarantees against state oppression. The perversion that is the National Counter-Terrorism Centre (NCTC), our Union Home Minister’s pet project, is conceivably the single most concerted assault on the Constitution and the rule of law since the Emergency of 1975.
Following the 26/11 terrorist attacks in Mumbai, the Home Minister announced the setting up of a centrally-supervised nodal anti-terror agency called the National Investigation Agency or NIA. A bill for its formation was quickly introduced in and passed by Parliament. On 30 December 2008, with Presidential assent, it became law. A year later, in December 2009, the Home Minister announced that by end-2010 India would have its own home-spun version of an NCTC, following the American model which set one up within 36 months of 9/11. The Indian avatar of the NCTC was designed to surpass its American counterpart in many ways: a raft of existing agencies would be brought under the NCTC, some were to be merged with it, and it was to have very wide additional powers.
Given these operational and statutory minefields, it was reasonable to expect the Centre not only to consult various states — especially those that had been terror targets — before unleashing the NCTC, but also that the new agency would be controlled by a statute. Neither happened. On 3 February 2012, the Union Government’s Home Ministry issued an executive order (office memorandum III 11011/67/05-IS.IV) establishing the NCTC with effect from 1 March. Some say the NCTC derives authority from Article 355 of the Constitution which says it is the “duty” of the Union to “protect States” against external aggression and internal disturbance; but this is an emergency provision. Explicitly, the office memorandum references Article 73, which deals with the extent of the Union’s executive power, and says that such executive power that can be exercised without reference to Parliament, but confined to those matters on which Parliament can legislate, but not those that also fall within the powers of a state’s legislature.1 Criminal law and procedure, preventive detention, movement of prisoners and public order are all matters that fall in this common zone.2
The Central Government’s legal feint-and-dodge, while considerably less than Mr Chidambaram’s original vision, is ominous in purpose and sinister in design. Not established under law, the NCTC sits under the Intelligence Bureau (IB), itself ungoverned by any statute, one originally designed by the British during the Great Game to watch the Russians in the North-West Frontier and said to be the oldest intelligence agency in the world. This means that the IB has no Parliamentary supervision (“oversight”); but the IB also has no powers of arrest or seizure, since that would require a law. Like a Mumbai bhel-puri, the NCTC takes from everywhere: like the IB, it has no governing law, but by executive fiat it derives power under the Unlawful Activities (Prevention) Act, 1967 (UAPA). This law was twice amended in 2004 and 2008 to deal with terrorism, and what this means is that the NCTC can do today what the IB cannot: it can arrest, detain, interrogate and prosecute.3 This is far beyond the powers of the American model on which the Indian NCTC claims to have been based.
The NCTC is far more than a monitoring unit. Its personnel can fly into any state without reference to local police or the state’s home department, arrest any suspect and, in a domestic version of that wonderful American euphemism, perform ‘extraordinary rendition’ by flying the suspects right out to be held for up to four months without trial.4 The NCTC notification demands that all state government agencies, including the police, must provide information, documents and reports to the NCTC.
We should see this for what it really is: an attempt to brand every single citizen of this country as potential terrorist. The very real problem of terrorism has, in the hands of this government, became an excuse for the violation of civil liberties and fundamental rights, and by repeatedly raising the spectre of terrorism we are asked to surrender freedoms hard won. Research in Motion, which makes Blackberry smartphones, has buckled to government pressure and allows government-snooping on text messages, emails and calls. The Telecom Department has the means to bypass telephone service providers and directly intercept all phones. And none of this requires judicial permission. There is a reason that the Home Ministry attempted to hijack Nandan Nilekani’s UID scheme: this is the one initiative, unparalleled anywhere, that provides a gargantuan digital database on every citizen and accesses everything, from your blood sugar levels to your flight bookings. That is not Mr Nilekani’s purpose. But it is very much the purpose of a government that distrusts those who put it in power.
The oddest thing about this word “terrorism” is that it is so closely tied to “liberty”. It comes from the Latin verb terrere, to frighten, and later from the French terrorisme. Nearly 300 years ago, during Maximillien Robespierre’s Reign of Terror, it was used as a means of governance against enemies of the newly-founded state. In a February 1794 speech to the French National Convention, Robespierre said this:
If the spring of popular government in time of peace is virtue, the springs of popular government in revolution are at once virtue and terror: virtue, without which terror is fatal; terror, without which virtue is powerless. Terror is nothing other than justice, prompt, severe, inflexible; it is therefore an emanation of virtue; it is not so much a special principle as it is a consequence of the general principle of democracy applied to our country’s most urgent needs.
Robespierre’s cold, heartless words have no place in a world three centuries later, in a time when the word’s meaning is inverted, when it now references non-state and anti-national elements acting against the state. So what do you call it when the state arms itself with powers to terrorize those it calls its own? The NCTC: the National Centre for Terrorising Citizens.
A.73 reads thus:
73. Extent of executive power of the Union.—
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
Items 1, 2, 3, 4 and 12 of List III (Concurrent List) of the VIIth Schedule to the Constitution. Public order and Police are items 1 and 2 of List II, the State List and exclusively within the purview of State Legislatures. ↩