Legal framework is the backbone for any crucial function of the government. This is more so where the law enforcement and intelligence activities of the State are involved. Law enforcement and intelligence activities and functions touch the most basic aspects of a person’s life. That is why we have strong human rights and constitutional protections that safeguard the life and liberties of such persons.
It would be both ironical as well as violation of basic human rights and fundamental rights if the law enforcement and intelligence activities are conducted in an illegal, unreasonable and improper manner. The duties, functions, liabilities and rights of these law enforcement and intelligence agencies must be specified in an unambiguous and proper manner. There is no scope for any sort of ambiguity in these functions of the State.
For instance, the British Security Service is one of three intelligence services or “Agencies”. These include the Secret Intelligence Service (SIS), commonly known as MI6, the Governmental Communications Headquarters (GCHQ), and the Security Service (MI-5). While there are significant differences between the British and US legal structures for law enforcement and intelligence services, MI6 is most like the CIA, GCHQ resembles the NSA, and the Security Service most closely resembles the FBI. All of them are constituted under duly enacted legislative frameworks.
Surprisingly, India has taken a very strange approach in this regard. The CBI, IB and RAW in India represent a case in which there is almost no law to look at. Further, there is no legally tenable mechanism that can keep an eye upon these agencies and their functioning. With the enactment of National Investigation Agency Act, 2008 some steps have been taken in this regard. However, the viability and constitutionality of this Act is yet to be checked. When the Center encroaches upon the powers of the States, constitutional crisis and disputes are bound to arise.
The winter session of the Parliament is approaching soon and a holistic and sensible approach in this crucial direction would go a long way in providing a durable law enforcement and intelligence agencies legal framework in India.