Thursday, November 28, 2013

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. 

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