For too long techno legal experts like Praveen
Dalal have been stressing that law enforcement agencies
and intelligence agencies of India must not only be regulated through
a legal framework but they must also be bound by parliamentary
oversight. However, Indian government preferred to keep this crucial
aspect under the carpet.
Indian Government did not understand and accept that
law enforcement and intelligence
work is not an excuse for non accountability. For some
strange reasons intelligence infrastructure of India has become
synonymous for unaccountability
and mess.
There is neither any parliamentary oversight nor and transparency
and accountability of the working of intelligence agencies
of India.
Lawlessness and unreasonableness is guaranteed if
there is no accountability. Accountability is absent when there is no
legal framework for those managing essential governmental functions
challenging the human rights and fundamental rights of the affected
persons. Perry4Law
has already provided
a “10
Point Legal Framework for Law Enforcement and Intelligence Agencies
in India” (PDF) to the Government of India in September
2009. However, the Indian government failed to act upon the same and
to formulate a techno legal framework accordingly.
The problem with the central bureau of investigation
(CBI) is that it has not been constituted under a valid law and till
now CBI has been operating through an executive order. Even Indian
government was well aware of this dangerous situation and despite
that it failed to remedy the situation.
In a recent
landmark judgment (PDF), the constitution
of CBI was held Unconstitutional by Gauhati High Court.
The Division Bench of Gauhati High Court has endorsed the views that
have been expressed by selective few legal experts of India like
Praveen Dalal.
According
to Praveen Dalal, managing partner of law firm Perry4Law
and a Supreme Court Lawyer, although almost all have criticised this
decision of Gauhati High Court yet it is “neither absurd nor an
uncalled one”. Parliamentary Oversight of any Law Enforcement
Agency is the “Core Requirement” under Indian Constitution.
However, our Intelligence Agencies and many Law Enforcement Agencies,
including CBI, are not governed by any sort of Parliamentary
Oversight, opines Dalal.
So judged from this legal position, the decision of
Gauhati High Court is correct and legally sustainable. Even CBI is
well aware of this ground reality. The Draft
Central Bureau of Investigation Act, 2010 was suggested by
CBI but the same could not see the light of the day. CBI’s case is
a political
fiasco that has arisen due to the PMO indifference.
Even the Intelligence
Services (Powers and Regulation) Bill, 2011 failed to
materialise and till now our intelligence agencies are not governed
by any law. In fact, intelligence agencies are vehemently opposing
the proposed Right
to Privacy Bill 2013 so that they remain ungoverned and
unaccountable in every possible sense.
India has already launched illegal and
unconstitutional projects like Aadhar,
central
monitoring system, national
intelligence grid (Natgrid), etc without any legal
framework and parliamentary
oversight. Now when we have a chance to bring some sanity
among the chaos created by the intelligence
infrastructure of India, the intelligence agencies have
pulled their sleeves to stall the proposed privacy bill.
There are no Shortcuts to Worth Initiatives and
Agencies and in case of CBI the Indian Government preferred the
“Shortcut Mode”, says Dalal. The correct procedure was to
formulate a Comprehensive and Holistic Legal Framework for the CBI
rather than keeping it operational under an Executive Order, opines
Dalal. Let us see how the Supreme Court of India would decide in this
regard.
