[This is a guest post by Hitoishi Sarkar and Ridhi Arora.]
The Intelligence Bureau (IB) serves as the premier agency in India’s internal security apparatus. However, the agency has no Parliamentary enactment to substantiate its existence, under the post-Constitutional framework. Presently, the Intelligence Bureau traces its validity to an executive order dated December 1887 from the erstwhile colonial government. This has significant ramifications from the perspective of constitutional law as it would imply that the agency exists in a constitutional vacuum. In this article, we examine the validity of the pre-constitutional executive order which serves as the backbone of legality of the country’s premier intelligence agency and also look into the question of whether the agency is a civilian organisation or an organisation with police powers.
The government’s stance
In 2009, Mr. Manish Tiwari, in an un-starred question, asked the then Home Minister Ajay Maken of “the legislative act or legal architecture from which the IB draws its legal/statutory authority/rights to function.” The Home Minister’s response to this question was that the Intelligence Bureau finds a place in the Union List under Schedule VII and has a separate office within the Ministry of Home Affairs. This reply of the government does not validate the existence of the Intelligence Bureau, because a mention in the Union list under Schedule VII merely signifies legislative competence of the Central Government, but not that the legislature has already legislated upon a matter.
In a recent petition pending before the Hon’ble Karnataka High Court in Intelligence Bureau Housing Society v. R.N. Kulkarni (Writ Petition No. 14616 of 2012), the constitutionality of the Intelligence Bureau has been challenged. The petitioner argues that the agency is functioning in an extra-constitutional manner without constitutional or statutory sanction, and it violates Article 21 of the Indian Constitution. However, the government contends that the Intelligence Bureau is a civilian organization without any police powers. The government’s reliance on the civil character of the Intelligence Bureau is intelligible, as any acknowledgement of the agency’s exercise of police power would render its status as an “attached office” legally untenable. This is because an attached office is supposed to only provide “detailed executive directions required in the implementation of the policies.”
The pre-constitutional executive order and its validity
Article 372 of the Indian Constitution lays down that all laws in the force in the territory of India immediately before the commencement of the Constitution shall continue to be in force until altered, repealed, or amended by a competent legislature. However, the aforementioned provision is subject to the definition of “existing law” as provided in Article 366(10). Therefore, a pre-constitutional law shall only continue to be in force after the commencement of the Constitution if it is covered within the definition provided by Article 366(10). A bare reading of Article 366 (10) shows that an order is covered within the definition of “existing law.’’ Such orders need to be legislative orders, and not executive orders, a concept which finds resonance in the approach taken by the Supreme Court in Edward Mills v. State of Ajmer (1955), wherein it was held that the word ‘law’ has an ambit wide enough to include a legislative order but not an executive order.
However, the pre-constitutional executive order which created the Intelligence Bureau cannot by any means have an enduring effect in the post-constitutional regime as the 1887 executive order did not have a legislative character. This is primarily because the then prevailing Government of India Act, 1858 had no provision for legislative bodies. It is evident from a perusal of the pre-constitutional executive order that it had the sanction of only the then Viceroy and the Secretary of state for India. Therefore, the order cannot be construed to have a legislative character.
Even on the assumption that the Intelligence Bureau had been created by a post-constitutional executive order, the Executive has no right to interfere with the rights guaranteed to the citizens under the Indian Constitution in the absence of a valid statute of law. In Jayantilal Amrit Lal v. F.N. Rana & Ors., the Supreme Court of India described Executive powers as residuary. This signifies that only functions which do not fall within the ambit of legislative and judicial powers are covered under executive power, and has to be read in context of Article 73 of the Indian Constitution which describes the powers of the Executive.
It has been reiterated in a catena of judicial pronouncements that when the executive needs to interfere with the rights of the citizens, it is authorised to do so only by virtue of a valid statutory legislation. The scope of executive competence is no longer res integra as the Hon’ble Supreme Court in State of M.P. v. Thakur Bharat Singh, has held that the executive action cannot infringe rights of a citizen without lawful authority. This position of law has in the recent past, also been reiterated by the Gauhati High Court in the matter of Navendra Kumar v. The Union of India &Anr. (2013). Therefore, the functions of the Intelligence Bureau which evidently interfere with fundamental rights, most notably the right to privacy under Article 21, are not within the ambit of executive competence.
The Intelligence Bureau continues to interfere with fundamental rights while performing its primary function of gathering internal intelligence despite its extra-constitutional existence. Recently, the Ministry of Home Affairs vide an order dated 20.12.2018 has empowered it to decrypt any information collected from any device in the country. This presents a clear interference with fundamental rights particularly the right to privacy under Article 21 of the Indian Constitution. The Intelligence Bureau’s interference with fundamental rights has been the subject of severe judicial scrutiny, most notably in the matter of Priya Parameshwaran Pillai vs Union Of India.
There are compelling reasons to state that that the Intelligence Bureau exists in a constitutional vacuum in the light of various judgments of the Supreme Court of India and the absence of any specific statute that lays down its powers, functions and limitations.
Does the IB have police power?
In Intelligence Bureau Housing Society v. RN Kulkarni, the government has maintained that the Intelligence Bureau is a civil organization, which would mean that the Intelligence Bureau officials cannot perform duties that are delegated to the police officers in India like interrogation, investigation and arrest. However, vide a notification dated 20.1.87, the Ministry of Home Affairs conferred powers of Superintendent of Police on Intelligence Bureau officers of the rank of Assistant Directors. This gives powers to the Intelligence Bureau of such rank to perform the powers that are in the hands of the police, which is contrary to the stance maintained by the government before the court of law. Additionally, the Intelligence Bureau officers are entitled to the same privileges and honours as those of police officers. Home Minister Ajay Maken conceded that medals like the President’s Police Medal and gallantry awards are also conferred on Intelligence Bureau officers.
While construing the meaning of the term “police officer”, the Supreme Court held it to mean officer whose duties it was to prevent and detect crimes. However, in 2000 the Home Minister, Vidyasagar Rao while answering the question “Whether Intelligence Bureau has not been able to curb crimes in the country?” said that the Intelligence Bureau was not directly responsible for curbing crimes in the country.
The duties and powers of a police officer have been prescribed under the Police Act, 1861, including the power to investigate and interrogate and the duty to maintain public order and safety. An Intelligence Bureau officer does not exercise the same powers as those of an officer in charge of a police station. Nevertheless, there is no distinction between the powers he exercises with respect to offences under his ambit and those which a police officer exercises in relation to offences which it is his duty to prevent and bring to light.
There have been multiple instances when Intelligence Bureau officers have investigated and interrogated people. In S.Nambi Narayanan v. Siby Mathews, it was reported that Intelligence Bureau officers had interrogated a woman and had been in the investigation process long before a Special Investigation Team (SIT) had been constituted by the state government of Kerala. Later, the CBI left the entire interrogation process to the Intelligence Bureau and voluntarily surrendered their duties. Even in D.K. Basu v. State of W.B., it was noted that the Intelligence Bureau was clothed with powers to detain and interrogate individuals.
The government’s stance about the powers and functions of the Intelligence Bureau is completely contradictory to the precedents laid down by the Supreme Court and the powers exercised by the officers of the IB in actual practice. The actions of the Intelligence Bureau officers in their everyday affairs renders the IB as an organisation with police powers, contrary to what the government has contended in the ongoing litigation which has challenged the constitutionality of the Intelligence Bureau.
The Intelligence Bureau presently is an unregulated body and has complete autonomy over its budget and its functioning, but there is a burning need to restrict its powers. Its activities interfere with significant fundamental rights under the Constitution, such as the life and liberty of the citizens. But, unlike the Police Act that sets out limitations on the powers exercised by police officers, there is no regulatory statute which is applicable to Intelligence Bureau officers. An attempt at limiting their powers and setting up an accountability mechanism was made by Manish Tiwari through The Intelligence Services (Powers and Regulations) Bill, 2011, which is yet to be passed by the Parliament even nine years after its introduction. There is a need to address this dichotomy in the present system, as the agency’s exercise of police powers without any accountability for empowerment makes it prone to systematic abuse.