I.THE JUSTIFICATION FOR A CENTRALIZED COUNTER-TERRORISM INSTITUTION, AND ITS CAVEATS
The Home Ministry has countered that a NCTC is unavoidable because, at present, the Union Government cannot deploy its military and para-military forces suo motu to deal with internal security problems in the States; often the States are unwilling to accept these Central forces due to dubious political compulsions. This has occurred when large-scale communal riots occurred in 1993 (post Babri Masjid) and 1992 (post Godhra). Moreover, the need for a NCTC is justified because the States lack the political will to fight determinedly against terrorism. Often the States have not deployed their police and state armed forces to deal firmly with law and order situations in a timely manner. Neither have they taken credible steps to professionalize these forces. They have also used their State forces to serve political ends, like the partisan use of the Gujarat police during the post-Godhra riots in 2002. These facts cast serious doubts on the impartiality and integrity of the State law and order apparatus.
Unfortunately, the record of the Union Government is equally questionable. The cases launched against those involved in the anti-Sikh riots of 1984 are still lingering, despite some three decades intervening. Besides, the failure of the Union government to deploy the Army in Mumbai during the anti-Muslim riots in 2003, despite their being available, reflected adversely on the impartiality of the government. Ironically, several of those involved in these dubious actions were appointed to high administrative and political positions or continue in them, which was not fortuitous. These blatant instances of partisanship and lack of integrity in the Union government apart, the professional ability of the Central police organizations is also arguable. The loss of 76 CRPF personnel of its 62nd battalion in the Dantewada district of Chhattisgarh in a clinically executed Naxalite ambush some two years back might be recollected here. Several questions had arisen then about the adequacy of their training, their physical fitness to undertake arduous jungle operations, and their familiarity with the terrain, language and culture of the local population.
All this was found wanting in the post-mortem inquiry. Whether remedial steps have been taken to professionalize these forces currently deployed for counter-terrorism and anti- Naxalite operations can only be speculated upon in the absence of any independent evaluation. The limited point being made here is that the Union forces are not much better than the State forces in dealing with terrorists and insurgents; so naïve conclusions regarding their natural superiority are quite misplaced.
Indeed, a strong argument can be made for strengthening the police stations and the local police/ armed forces in the States; this would be more relevant to meeting the threat since they have local knowledge of the terrain, language and culture that are of equal, if not greater, significance for counter-terrorism and counter-insurgency operations.What are the legal provisions enabling the Union Government to deploy its armed forces (military and para-military) to provide internal security in the States? The Criminal Procedure Code permits any magistrate to call upon any available military unit to come to its aid for maintaining law and order. Once deployed the obtaining thesis is that these forces would use only the minimum force necessary to control the situation and, that too, in the last resort. The regulations require that, before any major deployment of troops in ‘aid to civil authority’, the State concerned must seek the prior approval of the Union Government. In theory, the Union Government needs to satisfy itself that the State concerned has explored all other options like using its own forces and other Para-military forces belonging to the State and Union governments before seeking the armed forces of the Union.
Attention might also be drawn here to the provisions of Article 355 of the Indian Constitution, which casts a duty upon the Union to “protect every State against external aggression and internal disturbance.” Consequently, New Delhi is empowered to deploy its armed forces to quell “internal disturbance.” This legal authority has never been exercised by the Union Government or opined upon by the law courts. A reference to the Supreme Court under Article 143 (1) is possible to seek its opinion on this important question of law. Possessing the legal authority to deploy the Union forces, suo motu, in the States must, however, be tailored to political realities. The UPA Government has been marked by vacillation and has retreated in confusion from its earlier policy decisions to allow FDI in multi-brand retail trade, amend the law on land acquisitions or empower the Lokayuktas under the Lokpal Bill. In each case the common refrain of the States was that New Delhi had failed to consult and convince them about the need for these measures. This is again being alleged about the NCTC proposal.
The NCTC would function under the Intelligence Bureau (IB); it would analyze the intelligence pertaining to terrorism and associated criminality; maintain relevant data bases; develop appropriate responses; and undertake threat assessments for dissemination to the Union and State governments
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