Raman Singh on NCTC

Raman Singh said "I agree that there is a need for a separate agency at national level for gathering information, maintaining and analyzing data, and exchanging and reviewing these data with different States.

But before setting up such a national level organization, we must ensure that it does not adversely impact the federal structure of our Constitution; which must be taken into account before setting up such institutions. The federal arrangement has provisions for unitary statutes in special circumstances. One such provision is in Article 73 of the Constitution, which establishes coordination between the rights of States and the Centre. The notification of NCTC is said to have been issued under this Article of the Constitution.

Though the Union’s executive has purview over subjects on which the Parliament can make laws, this Article also says that in case a State legislature has the right to make a law on a particular subject, then the Union’s executive power will prevail only if there is any Act of Parliament or a Constitutional provision, for the same. We all are aware that States’ legislatures can make laws on police and civil administration. Terrorism directly affects national security, national unity and integrity. Therefore, Parliament can make laws in this regard. However, since terrorism also disturbs public administration, States can also make laws to act against the menace. It is, therefore, necessary to see whether any existing law allows inclusion of subjects, which have been proposed in the notification of NCTC, under the purview of the Union executive.

As per the NCTC notification, the provision of "Designated Authority" has been included on the basis of the Unlawful Activities (Prevention) Act-1967. But it is not clear as to the law under which the word, ‘mandate’, has been used in paragraph 2.5-II and the word, ‘prescribed’, has been used in paragraph 2.5-IV, of the notification.

Under Article 144 of the Constitution, there is a provision that all civil and judicial authorities shall assist the Supreme Court. I find that a similar provision has been put, with some changes, in paragraph 5.1 of the notification. This is surprising, because a provision similar to the one in the Constitution for the Supreme Court has been included as an executive order for an executive body like the NCTC. Our Constitution has cooperation and coordination-based federalism, but with the NCTC notification, I feel that it is being changed into a sub-ordination-based federalism.

For these reasons, all the three above mentioned provisions should be amended. Using words such as “Advise” or “Suggest” instead of “Mandate” and “Prescribed”, would be in accordance with the spirit of the Constitution. Using words like “Mandate” and “Prescribed” can create legal problems, as well.

Under the Criminal Procedure Code, only those empowered statutarily, can interfere in the process of investigation of a case. However, even though anyone is free to give an advice or a suggestion, the investigator is not bound to accept the advice or suggestion. The conclusion of the investigator has to remain independent of influences.

Another contentious issue is in granting powers of arrest, search and seizure to the officers of NCTC. Under Article-73, of the Constitution, Centre has the right to use the provisions of Unlawful Activities (Prevention) Act,1967. But there should be some justification for invoking such provisions. On this subject, I would draw your attention towards the Unlawful Activities (Prevention) Amendment Bill-2004, for its Statement of Objects and Reasons. The opening sentence of the said statement is that the Government was concerned about misuse of the provisions of POTA in the two previous years. A Bill presented in 2008, also talked about the prevention of possible misuse of POTA. In the amendment Bill of 2004, the provision of ‘Designated Authority’ was included on the same lines as in POTA, in which terms like "Joint Secretary" and "Secretary" have been used for the Designated Authority. Under section 25 of the Unlawful Activities (Prevention) Act-1967, there is a provision for the approval of Director General of Police and of giving information to the Designated Authority within 48 hours. However, by giving powers of arrest, search and seizure, the new arrangement for NCTC seems to have overlooked the provision of section 25. There seems to be some inconsistency and there could be operational hurdles that may arise, if an institution takes actions on the basis of such provisions.

In the Act of 2004, there is a provision of prior approval of DGP, but para 5/C of the draft SOP issued by the Central government says the DGP will be informed before any operation, if it is so possible. The draft SOP of the notification should not violate any statutory provisions of law.

We request that Sections 43-A and 43-B of the Unlawful Activities (Prevention) Act 1967, should be considered along with Section 25; and, amendments in NCTC should be made accordingly. In section 31 of the Unlawful Activities (Prevention) Act 1967, the ‘Designated Authority’ has been given the powers of a civil court, but section 43 A gives it the power to authorize an officer to arrest, search and seize. Interestingly, the ‘Designated Authority’ had not been given such powers even under POTA.

In para 5.1 of the NCTC notification, there is a provision, that all civil servants in the country and officers posted abroad shall assist officers of NCTC. As I said, this is similar to the provision of the Constitution in respect of the Hon'ble Supreme Court; and it is being proposed that any action can be taken by NCTC in case of violation of this provision. An investigator of a criminal case has been given the power to gather information from the concerned individual or office under CrPC. Therefore, giving such powers to an intelligence agency like NCTC which would be constituted without statutary basis, will be against the spirit of the Constitution and rule of law. Forcing all the officers of State Governments to comply with NCTC by an executive notification will be against the federal structure of the Constitution. Therefore, this provision should be removed from the scope of NCTC. In para 6.1 of NCTC notification, there is no clarification about the provisions of the "Standing Council". The last sentence of the notification says about ‘control’ of all the actions but there is no clarity on the method of ‘control’. While the provision relating to ‘coordination’ is acceptable, the word ‘control’ should however be eliminated.

We in Chhattisgarh feel that while there is a need for a separate agency at the national level for gathering information, maintaining and analyzing data and exchanging and reviewing these data with various states; its work should be limited to ensure coordination, cooperation and synergy, instead of diluting powers of State government’s agencies. The formation of such an important body will be effective and sustainable, if it is formed through an Act of Parliament, instead of a notification."