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COMMENTARY

The National Counter Terrorism Centre


The Creation of the Indian Stasi
South Asia Human Rights Documentation Centre

The debate about the central governments 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 Constitutions 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.

Experience should teach us to be most on our guard to protect liberty when the governments purposes are benecent. 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 governments 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 intelligence 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
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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 operations 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 Indias 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 ofcer of the designated authority to arrest any person if s/he has reason to believe that person committed an unlawful act as dened 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 orders explicit reference to Section 43A implies seizure and arrest procedure laid down under Section 43B.10 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 ofcer 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 erce opposition from as many as 10 chief ministers. Indias 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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South Asia Human Rights Documentation Centre (ravinairsahrdc@gmail.com) is based in New Delhi.

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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 ts 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 NCTCs jurisdiction violates the Constitutions division of powers between the centre and the states. The Commission on Centre-State Relations dened 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 animosityintended to cause or causing violence, destroy or attempt to destroy public and private establishment.16

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 UAPAs denition 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 dening 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 governments 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 NCTCs police powers as inherent in the executives 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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Based on this denition, 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 leaets 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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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 Constitutions 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 states 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 conict 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
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COMMENTARY

National Institute of Advanced Studies


Indian Institute of Science Campus, Bangalore 560 012 Tel. 080-22185000, Fax: 080-2218 5028 URL: www.nias.res.in DOCTORAL PROGRAMME

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. We are admitting exceptional students interested in multidisciplinary research in the areas represented at NIAS, especially in the following areas for the year 2012-2013:

Agroecology Biosecurity Archaeology, Archaeological Science and Art History Conict Studies - Identity Politics Consciousness, Self and Well-being Studies Economic and Social Issues Energy and Climate Policy International Strategic and Security Studies Urban Studies

Applicants may consult the NIAS website for information on faculty and their research interests (www.nias.res.in). ELIGIBILITY The scholarships are open to those who have completed / are completing a Masters/M.Phil. degree in any relevant subject in natural sciences, engineering, mathematics, social sciences, humanities or the arts, and with a consistently proven academic record (minimum 55% marks). Some research and/or eld experience in the concerned areas may be preferred, but is not essential. Candidates who have passed the NET/ SET examinations or qualied for JRF/ DST/ CSIR/ ICSSR fellowships will be preferred. FELLOWSHIP Candidates admitted to the NIAS Doctoral Programme will be entitled to fellowships, which will be available for a period of four years on a yearly renewable basis. The fellowship amount is xed at Rs. 16,000/- per month for the rst two years and Rs. 18,000/- per month from the third year, with an additional 30% per month as House Rent Allowance. Limited hostel seats are available on campus. HOW TO APPLY Applications should be made on plain paper, including a curriculum vitae, copies of mark sheets and degree certicates (to be veried at the time of interview) and a clear statement of purpose detailing the research interests of the candidate and explaining why she/he would like to join NIAS. Explicit mention must be made of the research areas for which the application is being sent. Application along with all other documents should be sent as one single PDF document on or before April 10, 2012, to: Head-Administration National Institute of Advanced Studies Indian Institute of Science Campus Bangalore 560 012, India phdnias@nias.iisc.ernet.in, jnsandhya@gmail.com The candidates email address, postal address and contact phone numbers (landline and cell) should be included in the application. SELECTION PROCEDURE Short-listed candidates will be invited for a written test and an interview in June 2012. The dates will be informed later by email. For additional information, applicants may contact: jnsandhya@gmail.com, admin@nias.iisc.ernet.in 14
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COMMENTARY

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 governments 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 governments internal security powers.40 The Ministry of Home Affairs justies 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 governments RPF.42 The expansion of police powers to the NCTC cannot be
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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 trafc 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. Indias 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 ofcial 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 IBs 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 enforcement 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 intelligence agencies to police its opposition into submission. Indias 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 unied intelligence, security, and police force would tend towards abuses associated with the Gestapo of Nazi Germany and the Soviet Unions KGB.52 Parliamentarians, state governments and civil society would do well to heed these lessons from history and follow the US example. Conclusions The central governments effort to expand the jurisdiction of the IB through the NCTC by permitting it policing power under the UAPA not only violates the Constitutions 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 governments apparent agenda to expand its policing powers at the expense of the states jurisdiction and core democratic principles and rights.
Notes
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 ofcer 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).

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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 Fireghting Mode, TNN, Times of India, 19 Februry 2012; Spies Shouldnt Police Us, editorial, The Hindu, 19 February 2012; Whats 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, Countrys 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 leaets 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 inammatory. 20 The Unlawful Activities (Prevention) Act, 1967 Section 15. The denition 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 denition, 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 denition 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 Pacic 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, denition 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 Shouldnt 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 Its Roles, available at http://cbi.nic.in/ 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 www.humanrightsinitiative.org/programmes/aj/police/ 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 dAffaires, 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 Intensies over NCTC, Times of India, 18 February 2012.

heai

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 nancing, ii) health workforce, iii) access to medicines, iv) governance and institutional capacities; v) social determinants of health, etc. Efforts will be made to nancially 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 healtheconindia@gmail.com for membership and registration details. You may also visit our website www.heai.org.in for further details or contact us at 011-49566000 Ext. 6008 and Ext. 6055. Dr. Gita Sen President, HEAI
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Dr. Sakthivel Selvaraj General Secretary, HEAI


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35 Mohua Chatterjee and Vishwa Mohan, NCTC Looks Uncertain, Mamata Says Its on Hold, Times of India, 23 February 2012. 36 Blow to Anti-Terror Intelligence Hub, supra note 6. 37 Text of the DO Letter, supra note 13; More CMs Join Anti-NCTC Chorus, supra note 13. 38 Text of the DO Letter, supra note 13; Parliamentary Panel Tells Government to Put NCTC Plan on Hold, The Hindustan Times, 21 February 2012. 39 See Preamble of the National Investigation Agency Act, 2008. 40 Para 1.1.1, 154th Report on the Border Security Force (Amendment) Bill (2011), November 2011, Department-related Parliamentary Standing Committee on Home Affairs, Rajya Sabha, Parliament of India. 41 154th Report on the BSF (Amendment) Bill 2011, Para 1.8. 42 Railway Protection Force Bill to be Introduced in Parliament, PTI, The Hindu, 17 November 2011. 43 See, e g, No Statehood for Delhi: Dikshit, TNN, Times of India, 3 August 2004. 44 Namrata Biji Ahuja, NCTC Can Arrest, Search, Seek Info, Asian Age, 18 February 2011. 45 See Stewart A Baker, Should Spies Be Cops?, 97 Foreign Policy, Winter 1994-95, at 40. 46 Manish Tewari recently proposed a private members bill to govern the IB, the Research & Analysis Wing and the National Technical Research Organisation ostensibly to place these agencies under the rule of law. The bill does little more than maintains the opacity of the intelligence agencies and consolidates the executives power over them. For a full commentary, see South Asia Human Rights Documentation Centre, Not a Very Intelligent Attempt at Intelligence Reform, Economic & Political Weekly, 24 December 2011. 47 Baker, supra note 46 at 40. 48 Baker, supra note at 40. An alternative, of course, is to require the intelligence agencies to undertake its activities within the limits of due process of the law. This may be unsatisfactory given the different purpose of intelligencegathering. Criminal prosecutions demand hard evidence, while intelligence gathering is often impressionistic. Even when intelligence agencies have that hard evidence, in order to follow through with prosecutions, they may need to turn over sources that may be more valuable for other purposes and will not want identied. Baker, supra note At 42. 49 See Baker, supra note. 50 Federation of American Scientists Intelligence Bureaus, available at http://www.globalsecurity.org/intell/world/india/ib.htm; See also, Swapan Dasgupta, The Indolent Giant India Must Modernise Its Intelligence Gathering Machinery, The Telegraph, 9 January 2009; see also, Bibhuti Bhushan Nandy, former additional secretary, cabinet secretariat, R&AW and direct general (redt), Indo-Tibetan Border Police, R&AW and the Cooked, The Hindustan Times, 21 June 2002 (the IB is unable to reach its full potential because it wastes a great deal of its time, manpower and other resources in political snooping); James Burch, A Domestic Intelligence Agency for the United States? A Comparative Analysis of Domestic Intelligence Agencies and Their Implications for Homeland Security, Homeland Security Affairs: The Journal of the Naval Postgraduate School Centre for Homeland Defense and Security, Vol 3, No 2, June 2007, available from http://www.hsaj. org/?fullarticle=3.2.2. 51 Baker, supra note 46 at 36. 52 Fred F Manget, Intelligence and the Criminal Law System, Symposium Spies, Secrets, and Security: The New Law of Intelligence Oversight of Intelligence, 17 Stanford Law & Policy Review, 415, 416 (2006).

Those Enemies of Freedom


Saroj Giri

Why does the political agency of the Muslims and other so-called marginalised groups, so often end up arrayed against the liberal values of secularism, freedom of speech and liberty? This article argues that the structure of politics in the Indian republic is such that any marginalised group wanting to exercise autonomous political agency beyond the paternalistic reform allowed by the state, will end up appearing sectarian and illiberal.

Saroj Giri (saroj_giri@yahoo.com) teaches political science at the University of Delhi.


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eave out the vested interests and the self-styled spokespersons of the Muslim community, including the vote-bank politicians; also leave out the sectarian attitude, closed minds and so on. Is there not something more than just this in the opposition by Muslim groups to the freedom of expression in the recent Salman Rushdie affair? In other words, sectarian opposition by a minority group might not always be yet another instance of the atmosphere of intolerance in society, or of the suppression of dissent and artistic freedom and other such generalities. It might instead indicate something else. That it might have a different specicity was already indicated by the nature of some of the arguments defending free expression and supporting Rushdies participation in the Jaipur Literature Festival (JLF). At least one major defence of this freedom was not really about free speech as such but about socioeconomic deprivation. On the last day of the JLF, enlightened and progressive liberals, saddened and angered by the turn of events (the video
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conferencing with Rushdie had to be cancelled due to protest by Muslim groups), were questioning, almost grilling (rightly so), Salim Engineer of the Jamaate-Islami who was opposing Rushdie. They were saying that yes indeed the Muslim community has been at the receiving end in this country and are mostly deprived, yes they need support. But then they posed the question, deprivation is a concrete issue which you (like the Jamaat-e-Islami) should be concentrating on rather than raking up issues that do not help the community. Is Islam so vulnerable that the writings of one man can undo its glory and greatness? Indeed, the enlightened and progressive liberals questioned, how will stopping Rushdie help in solving the socioeconomic deprivation of Muslims in this country? Further, the panellists declared how some of them have been at the forefront of the ght for the rights of Muslims, that they are no Muslim-haters but this opposition to Rushdie and the undermining of artistic freedom cannot be accepted and is totally irrational. So far, so good. But how come the debate over the pros and cons of freedom of speech and expression ended up focusing on socio-economic deprivation and rights? One can argue that this is very positive and points to a socially sensitive idea of freedom of expression. However,
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