NIA Needs Real Teeth, Claws to Fight Terror

BY  JOGINDER SINGH, IPS  FORMER  DIRECTOR,  CBI

True to the traditions of willing to strike, but afraid to wound, a small step has been taken to set up a federal investigating agency that is to be called the National Investigating Agency (NIA). The Lok Sabha has passed it.

The NIA will have exclusive powers to initiate investigations into major terror cases — to be identified by it on the basis of the enormity of the terror act and its inter-state and international ramifications, across states without getting special permission from them.

Drug trafficking and counterfeit currency have been clubbed together with terrorism as designated “scheduled crimes” that can be dealt with by the NIA.

The proposal of a special anti-terror law, however, was not approved as some ministers, probably with votebank concerns, opposed it on the alleged ground of the possibility of the law being misused against minorities, tribals and others.

Three other proposals — putting the onus of proving innocence on the accused, to treat the accused’s statement in police custody as evidence during trial, preventive detention of terror suspects in case of apprehension of misuse — were also rejected.

The passing of the NIA proposal into law is a direct outcome of the terror attacks on Mumbai from 26 to 29 November.

As a month has passed, the effect of the tragedy, if not exactly forgotten, has been dimmed. But the fact remains that having information of an offense is different from the evidence required to prove a case in the court of law.

The law is there to target and threaten “lying” witnesses and not to protect those who are scared, pressurized and vulnerable, especially in terrorist-related offenses.

The biggest defect in the NIA proposal is that the agency comes into picture only after a crime has been committed. We have no agency which is clearly charged with preventing terrorism and tackling it in all its nuances.

It is still not too late to also give the responsibility for prevention of anti-national crimes to the NIA, along with the other agencies, including the state police. Instead of leaving the matter vague, it is best to pinpoint and fix responsibility after, of course, all the modalities have been worked out. The original proposal had put the onus on the accused to prove that s/he is not a terrorist. Now, the prosecution has to prove it.

How do you prove that a particular person is from Pakistan and is a terrorist (as most terrorism in India is flowing from Pakistan). It is too much to expect, and it will never happen, that either the Pakistani government or the ISI or other terrorists organizations there would come and depose in an Indian court that so and so, who has been caught in India, is a Pakistani and a terrorist trained or sponsored by them.

With a view to protect the rights of the terrorists we have done a self-goal in not making the confessions of terrorists made to the police admissible in the court of law. This despite the fact that in cases of drugs and money laundering, confessions made to the officers of departments which are investigating the offenses are admissible in court. There are a few new very welcome features in the Unlawful Activities (Prevention) Amendment Bill which embraces a terror definition that includes attack on any public functionary. Also, there’s provision for imprisonment of up to 10 years for getting explosives, radioactive substances, nuclear devices etc with the intention of abetting terror acts, and life imprisonment for organizing terror camps or recruiting any person for terrorist activities. Terror suspects can be held without charge for up to 180 days and police custody can stretch up to 30 days. There is no bail if the court is satisfied that the allegation is prima facie true and there’s a blanket ban on bail if the accused is a foreign national.

Experience has shown that in spite of having half-a-dozen intelligence gathering agencies like the Intelligence Bureau, RAW, Defense Intelligence Agency, Air Force and Naval intelligence units, BSF, CRPF, and state intelligence units, Joint Intelligence Council, National Security Board and National Security Adviser, everybody is keen to secure approbation from their own bosses. Instead of passing on the intelligence to those who are to act on it, the information is sent vertically and not horizontally. In these matters, there should be one commander and not a marriage party type of functioning, where everybody is a VIP and can get his or her way.

Data Bank: The result is a khichri of intelligence and nobody knows who does or should maintain the data bank of terrorists, their sympathizers and supporters. It is vital that a data bank of all such elements, whether arrested, charged, acquitted or convicted, is maintained and is readily available for reference and record.

How the NIA should be constituted: Investigation is a painstaking job where a lot of backroom work needs to be done. In fact, it takes a good 12-15 years to produce a good investigator. Even if the legal framework exists, there is no way the NIA could become functional from day one. Indeed, most states are reluctant to part with their best officials for deputation to the Central government. Such an agency, therefore, should draw the best people from all streams — income-tax, customs, police, engineering, information technology, atomic energy, banking, Navy, Air Force, Army, as well as scientists.

To begin with, the responsibility to head NIA should be given to the Director of the Central Bureau of Investigations (CBI) who already has investigators at his disposal. As Director of NIA, he should be vested with absolute powers and charged with showing results. Later on, depending on the situation, this agency could be separated from the CBI. It is already too late and the sooner it is done the better it would be… before another Mumbai is repeated elsewhere.
  
(Joginder Singh is a former Director of the Central Bureau of Investigation)