Wednesday, June 22, 2011

Intelligence Work Is Not An Excuse For Non Accountability

Indian Government has decided to “Exempt” Central Bureau of Investigation (CBI), National Investigation Agency (NIA) of India and National Intelligence Grid (NATGRID) from the applicability of Right to Information Act 2005 (RTI Act 2005). This is a “Policy Decision” and is well within the Powers of the Executive Branch of Indian Constitution.

Generally, Policy Decisions of Executive are not subjected to “Judicial Review”. However, if the Policy Decisions are Malafide, Unconstitutional or violates the Rule of Law, these decisions can be “Challenged” in a Court of Law.

Before we analyse the Policy Decision of Indian Government to exempt CBI, NIA and NATGRID, we must be aware of some background facts. The RTI Act 2005 is the sole “Transparency Law of India” that needs further amendments and strengthening. However, the proposed Right to Information Rules 2010 instead of strengthening the RTI Act, 2005 took steps that are Retrograde in nature.

The Constitutional Validity of National Investigation Agency Act, 2008 (NIA 2008) is still doubtful and CBI and NATGRID are not governed by any law at all. Even the proposed Central Monitoring System (CMS) of India is “Without any Parliamentary Oversight”.

In short, whether it is CBI or Intelligence Agencies of India, none of them are presently Accountable to Parliament of India. Human Rights in Cyberspace in India are regularly targeted by Indian Government and its Agencies without “Constitutional Laws”. Without Parliamentary Scrutiny and Judicial Review these Agencies cannot be considered to be “Constitutional”. If these Agencies are themselves “Unconstitutional” their functioning is also “Unconstitutional”.

Indian Government has already made these Agencies “Non Accountable” and now it is making them “Non Transparent” as well. In my personal opinion, this Policy decision of India Government is “Unconstitutional” and is well within the scope of Judicial Review.

This also casts a doubt about the “Impartiality and Transparency” of these Agencies. Exempting these Agencies without any parallel “Parliamentary Oversight” is against the provisions of Indian Constitution.

But then there seems to be no “Separation of Powers” in India any more and expecting Parliament of India to perform its “Constitutional Duties” can safely be considered to be “Over Ambitious Thinking”.

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