Intelligence Bureau: Informal but not Unconstitutional

Recent Gauhati HC decision on constitutional validity of CBI has sparked off a similar debate about India’s premier intelligence agency, Intelligence Bureau (IB) which, according to a RTI reply by Home Ministry, was created through consent given by Secretary of State for India.

However, the nature of IB’s functions makes it a case in complete contrast to that of CBI. CBI exercises various police powers like arrest and prosecution, which essentially involve deprivation of “personal liberty” of the accused. Under Article 21 of the Constitution, any such denial of personal liberty requires support of “formal” executive or legislative action.

IB, in contrast, does not exercise any of the police powers under the Code of Criminal Procedure. Neither does it arrest nor does it prosecute anybody. It is just an information gathering mechanism of the government. This also makes IB different from intelligence-cum-investigation agencies like FBI which apart from gathering intelligence perform police functions of arrest and prosecution.

Some of IB’s functions like electronic espionage which may involve invasion of constitutional guarantee of “personal liberty” as enshrined in Article 21 are performed under formal laws like Telegraph Act which provide for “due procedure” as well as oversight of “competent authority” like Home Secretary, thus satisfying the requirement of constitutional jurisprudence as evolved by Supreme Court through a series of decisions.

The mention of Central Bureau of Intelligence in Schedule VII of the Constitution is an enabling provision investing the Parliament with legislative competence to enact laws for the re-creation or regulation of such an agency. A perusal of Entries in Schedule VII with its controlling provisions contained in Articles 245 and 246 makes it pertinently clear that Parliament “may” legislate on these subjects but it is nowhere mandatory for it to do so. It may make a choice of not interfering in administrative arrangements which were already in place at the commencement of the Constitution.

Article 375 which is a special provision in this regard further reaffirms this position by laying down that “all officers judicial, executive and ministerial shall continue to exercise their respective functions, subject to the provisions of this constitution.” So, IB as an administrative mechanism of information gathering continues to be valid on constitutional standards despite its informal creation. 

A Twist in the Middle-East Tale

By talking over phone President Obama and Iran’s newly elected President Rouhani may have started to spell the new equations which have the potential of simplifying the extremely complicated geo-politics of middle-east. This historic rapprochement between West and the Iran will have long-term soothing effect on highly volatile situation in post-Arab spring era.

An acrimonious relationship with Iran makes US devote much of its energy in Middle-East to futile activities which do not help any of its long-term strategic goals nor do in any way contribute to global security scenario. George Bush’s inclusion of Iran to “axis of evil” phraseology only complicated and delayed US war efforts in Afghanistan and Iraq.

As US invaded Afghanistan in 2001 and thereafter Iraq in 2003, a hemmed Iran naturally found itself vulnerable. Washington’s hostile attitude further worsened the situation and allowed radicals in Iran to rise to power.

Iran had a stake in toppling of Taliban regime in Afghanistan which was extremely hostile to Iranian interests. When Taliban came to power in Kabul in 1996, it made all attempts to curtail Iranian influence in Afghanistan. Large scale selective killings of Shias were organized by the Taliban government. Iranian consulate in Mazar-e-Sharif was attacked and ten Iranian diplomats were killed. Iran had to amass 300,000 troops on its border with Afghanistan threatening to punish the Taliban regime.

However, Bush’s axis of evil rhetoric forced Iran to covertly help the Taliban after post-9/11 invasion of Afghanistan by US so as to keep US military engaged and stretched. Similar things also transpired in Iraq. Saddam Hussein was Iran’s sworn enemy but after fall of Saddam regime Iran had to initially work at cross-purposes to US to keep US forces at bay. Things stabilized in Iraq only after Washington realized that a head on approach against Iranian clients will not be helpful. Ultimately Iranian covert co-operation in quelling the violence allowed US to withdraw its troops from Iraq.

Withdrawal of US troops from Afghanistan which is scheduled next year will bring back things to per-9/11 era. There will be no substantial US military presence either in Iraq or Afghanistan. On the other hand, Iran will be faced with a resurgent Al- Qaeda on its west in Iraq which aims to push that nation into civil war and a hostile Taliban which will try to destabilize Afghanistan staking claims to power in Kabul to its East. All this has serious implications for Iranian interests in the region.

A glimpse of approaching turbulence is already visible. Pakistan’s tribal areas witnessed some of the most ghastly attacks mounted on Shias ever. At the same time, a terrorist group named Jundullah founded by Abdul Malik Rigi, who was a former Taliban commander and operates from Pakistani territory sprung into action after many years and killed sixteen Iranian border guards. In Iraq, Al-Qaeda’s activities are recording an exponential increase.

After UN sponsored chemical weapons deal with Assad regime, Iranian and US priorities are changing fast bringing them into cohesion. Going forward Washington will be increasingly focused on checking resurgence of Al-Qaeda and allied groups in the Islamic world. Similarly, these groups are emerging as greater threats to Iranian interests in Syria, Iraq and Afghanistan than the West.