A number of non-Congress chief ministers have opposed the National Counter Terrorism Centre (NCTC) terming it a violation of federalism and draconian, but they seem to have read the law selectively.

The NCTC, proposed to be set up on March 1, is not usurping powers of police as these CMs fear, but keeping the police in loop in the fight against terrorism for which it is being set up. It will merely hand over the persons arrested and properties seized to the station house officer [SHO] of the concerned police station and rest of the job of investigations and prosecution under the Code of Criminal Procedure (CrPC) remains with the SHO.

The CMs read and stopped at Section 43(A) of the Unlawful Activities Prevention Act (UAPA) inserted through an amendment in 2008 on powers of arrest and search assigned to the NCTC, but didn't read further Section 43(B)(2) that says "every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer in charge of the nearest police station."

It is also not "draconian" as West Bengal chief minister Mamata Banerjee and some BJP leaders tried to paint as the person nabbed is not kept in dark on charges against him unlike the intelligence bureau (IB) detaining persons illegally for days and weeks and that too without giving any explanation.

Section 43(b)(1) of the Act is a guarantee against clandestine arrests as it specifically lays down that "any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds for such arrest." And then the police come into picture to perform the tasks under the code. Critics, however, say "as soon as" is vague since it does not fix any time limit.

The NCTC is to function as an arm of the IB and this worries former RAW chief B Raman, who was a member of a task force constituted by then NDA government for revamping the intelligence network, that it will compromise the role of the IB as a clandestine intelligence collection organisation, becoming preoccupied defending arrests before the courts and against allegations of human right violations and harassing political opponents. He says the IB may also lose protection from the Right to Information Act if it becomes an enforcement agency.

His fears are unfounded as the NCTC will not go to court as its task is over once it has conducted raids and nabbed the suspected terrorists and handed them over to police for further action. His task force had itself recommended setting up of a counter terrorism centre under the IB since the IB had the overall responsibility for counter-terrorism and liaison with the state police. The idea was borrowed ditto from the US’ counter-terrorism centre or CTC under the Central Intelligence Agency (CIA) that coordinated and followed up action on intelligence gathered by various agencies, with officers on deputation from different agencies working under a CIA officer. Raman, however, clarifies that the task force had not recommended any legal powers to the CTC so that the clandestine nature of its operations was not affected.

Instead of calling it CTC, the government constituted it in 2001 as Multi Agency Centre (MAC) as a wing of the IB as recommended by the Kargil war review committee to coordinate and share intelligence of different central and state intelligence agencies, including RAW and Military Intelligence. NCTC is nothing but the National Intelligence Grid (NIG) recommended by the committee for constitution subsequently and will be basically performing the same tasks of the MAC.

Like MAC, its experienced hands will be analysing the intelligence inputs from field by the information gatherers across the country and abroad, using databases of all suspects to connect the missing links to provide an actionable picture for quick action.  MAC collates hundreds of inputs, leading to bursting of 59 small and big terror modules during the past three years. MAC also got laurels for the real-time inputs during the 2010 Commonwealth Games and 2011 cricket World Cup.

Instead of making NCTC an independent organisation, the government chose to make it part of the IB for the same reasons for which MAC is part of the IB – that the latter already has its network in every state and already coordinates with the police on the counter-terror front.

Before 9/11, the assessment in the US was that terrorist threats from abroad would be more serious than home-based threats and hence the CIA, which handles external intelligence, was vested with responsibility of coordination through CTC. Post-9/11, the administration found gaps in the CTC functioning and thus was born in 2004 an independent institution of the National Counter-Terrorism Centre, which was not under the control of any of the existing agencies.

The 26/11 terrorist strikes in Mumbai brought out similar gaps in the functioning of the MAC. As B Raman points out, flow of preventive intelligence and follow-up action on even the limited intelligence that was available was unsatisfactory. And, thus home minister P Chidambaram decided to set up the NCTC after a visit to the US.

However, nowhere in the world except in China, the intelligence agencies enjoy powers to arrest, not even the American NCTC despite its formation through a Congressional legislation. Gestapo, the secret service of Hitler, had such powers and that may have prompted some to dub the February 3 notification for constitution of NCTC as "draconian."

With the prime minister directing Chidambaram to persuade the protesting chief ministers, the home ministry is ready with a draft note to be sent to them to explain that there is no trampling of federal structure as the terrorists so arrested will be passed on to the state police for prosecution. Moreover, a standing council that will run the NCTC will have all state ATS (anti-terrorist squad) chiefs as its members who can hold video-conferencing to discuss matters.

NCTC is nothing more than a single point of control and coordination in all counter-terrorism measures and it will keep the police in loop alike the IB today as it has to be a joint fight of the Centre and states against terrorism, says the note, adding that the it just cannot be conceived without the role of the states.

Also read: Chidambaram writes to 10 CMs on NCTC