India is exceptional among democracies in having no legal framework for its intelligence services, nor a system of oversight and accountability for covert operations.
For the first time in the history of independent India, a high official of its intelligence services stands indicted for cold-blooded killing in the service of the Republic. Thursday’s Central Bureau of Investigation charge sheet against former Intelligence Bureau Special Director Rajinder Kumar and his subordinates for the alleged extra-judicial execution of Maharashtra residents Ishrat Jahan Razaand Javed Sheikh, as well as two alleged Pakistani Lashkar-e-Toiba operatives, marks an unprecedented challenge for India’s national security system. The CBI’s charge sheet has blown the lid off the comforting fiction that extra-judicial killings are aberrations, crimes carried out by brutish policemen and villainous provincial politicians. In this case, the Gujarat Police might have played executioner, but the charges against Mr. Kumar give reason to believe that the death warrants were signed, so to speak, in North Block. Loud and acrimonious political debate has broken out on whether the four victims were linked to terrorism or not, which really is an irrelevant issue. Instead, political leaders must introspect on the role of governments in encouraging murder as a tool of national security, and demonstrate the legislative will needed to set wrongs right.
India is exceptional among democracies in having no legal framework for its intelligence services, nor a system of oversight and accountability for covert operations. Every time they run trans-border operations or plant moles in terrorist groups, they break the law. Ajit Doval, a former IB Director and the only Indian police officer ever to be awarded the Kirti Chakra, has candidly said the operation that led the President to give him the coveted military honour involved the killing of a Pakistani spy, the illegal detention of terrorism suspects and smuggling across international borders. For individual officers, the absence of a regulatory law for covert operations creates perverse incentives for wrongdoing: who, after all, would want victims of their criminal acts to tell the story in court? In its absence, kidnapping has been substituted for legal detention, torture for criminal investigation, and the bullet delivered to the back of the skull, for trial. Leaders of all parties, though, have been loath to change the system. For years now, figures like Union Minister Manish Tewari, and former intelligence chiefs, have campaigned for the legal regulation of the intelligence services, arguing that the status quo will end up undermining national security. To continue to ignore these voices will ensure the destruction of the intelligence services, and threaten the security of the republic they are charged with defending.