Misuse of Pegasus Was Enabled by Governments Ignoring Calls to Reform Intelligence Agencies

Since Independence, every Union government brushed aside opportunities to create oversight mechanisms which are common in other parts of the world.

Listen to this article:

When India won Independence, it had the choice of two models for its intelligence agencies. One was the United States’s version, which gave intelligence work a legal basis, insisting on accountability and transparency through a system of checks and balances. George Washington, one of the founding fathers of the US, established this principle in his first State of the Union address in January 1790 by requesting the US Congress for funds to finance intelligence operations. The US passed the National Security Act in 1947 and the CIA Act in 1949 to cement these principles.

The other was the British system of “denial”. This was advocated by Viceroy Lord Dufferin in 1887 while setting up the colonial intelligence collection service in India, hidden within the police. This was copied by the UK in 1909, when the Secret Service Bureau was set up under the part “cover” of the Foreign Office.

India could have chosen the American model in 1947, discarding the colonial model. This was what Nelson Mandela did in South Africa in 1994, immediately after independence. He passed the National Strategic Intelligence Act and the Intelligence Services Act (1994), giving legal basis for the post-apartheid nation’s intelligence services, placing them under parliamentary control and insisting on their total accountability.

India did not change its opaque structure even after the UK moved to bring in accountability and transparency through legislation, starting with the Intelligence Services Act, 1994 and ending with the Covert Human Intelligence Source Act, 2021 in March this year. Christopher Andrew, the British intelligence historian, had said that the UK replaced its system only after Malcom Turnbull, then a lawyer, humiliated Britain in 1987 during the cross-examination of the British cabinet secretary in the infamous Peter Wright-Spycatcher case for the country’s intelligence agencies not having any legal status. Turnbull went on to become prime minister of Australia.

Hamid Ansari calls for reforms

The first Indian leader to advocate intelligence reforms was Vice President M. Hamid Ansari, who called for accountability on the part of intelligence agencies while delivering the fourth R.N. Kao Memorial Lecture at the R&AW headquarters on January 19, 2010. Ansari underscored the necessity for the agencies to function under some sort of legal cover, as oversight and accountability should go along with more public scrutiny of intelligence agencies.

To this end, he recommended the practice followed in the US after the Vietnam era, with Congressional committees scrutinising the operations of intelligence agencies. In the UK too, public pressure saw the enactment of a law codifying parliamentary oversight through the Intelligence Services Act, 1994, which established the Intelligence and Security Committee of Parliament to examine expenditure, administration and broad policy of intelligence services.

Ansari said that many other countries like Canada, Australia, South Africa, Norway, Germany, Argentina, the Netherlands, Poland and Romania had also put in place similar mechanisms of public accountability. He advocated a Standing Committee of Parliament to oversee the intelligence agencies. He also felt that the concerned agencies should make public their mission statement, periodically outlining their strategic intent, vision, mission, core values and goals.

Former Vice President Hamid Ansari. Credit: Reuters

Former Vice President Hamid Ansari. Photo: Reuters

Manish Tewary’s Bill and UPA inaction

Unfortunately, the UPA government did not follow up on the vice president’s proposals. It was left to Congress MP Manish Tewari, who later became minister for information and broadcasting (2012-2014), to introduce a private Bill, the Intelligence Services (Powers and Regulation) Bill, 2011 in March that year to codify the working of India’s three major intelligence agencies on the same lines as the British laws. The draft Bill provided clear, non-overlapping charters and prevented them from taking “any action that furthers the interests of any political party or coalition of political parties or other such interest groups”.

One of its provisions was establishing a system in which the agencies concerned should send bi-annual secret reports with broad details of accounts to the prime minister, who would place them in parliament. Like the UK’s Intelligence & Security Committee, whose reports are available publicly, there would be a National Intelligence & Security Oversight Committee headed by the chairman of Rajya Sabha. The proposed members were the speaker, prime minister, home minister and opposition leaders.

There would also be an ‘Intelligence Ombudsman’ to address departmental grievances and a National Intelligence Tribunal, chaired by a retired Supreme Court judge, to investigate public complaints against the agencies.

The most interesting part of the Bill was Part V, which dealt with electronic interception. This part of the Bill laid down all the steps that must be taken before interception was ordered.

Section 8(1) of Part V said that “no entry on any property or interference with any form of communication including wireless telegraphy under the Act would be lawful unless it is authorised by a warrant issued by the authority designated for the purpose by the Central Government”. Some leeway was left for the intelligence agencies to ask for authorisation for operations, but with oversight.

There are other clauses in the Bill to prevent partisan or political misuse of these interception powers. Also, the heads of the three national agencies were debarred from being reappointed to any other post in government, except as an advisor to the Government of India. Unfortunately, the UPA government allowed the Bill to lapse.

Need for strict control over interception

Between 1973-1976, I oversaw the Bombay Special Branch, which used to undertake telephone interception, under orders of the commissioner of the police, as authorised under the Indian Telegraph Act. At that time, the Customs Department, the Directorate of Revenue Intelligence, the Central Bureau of Investigation and the Enforcement Directorate used to approach me with their interception requests. Over a period, several agencies were authorised to monitor telephone conversations without any centralised control. A parliamentary question on February 11, 2014, revealed that in addition to state agencies, nine Central agencies were officially authorised to intercept conversations.

The precaution laid down by the government in obtaining advance permission from the home secretary in New Delhi and the state home secretaries is not satisfactory, as there is no machinery to audit whether there was any misuse on partisan considerations. A case now being investigated in Maharashtra, where a senior intelligence officer is accused of deviating from the formal permission given by the present chief secretary, is a pointer to this possibility. This was revealed only because of a change in government in Maharashtra.

The UPA failed on another ground to take decisive action to stop deviant behaviour. In 2013, the then Army chief was alleged to have created an unauthorised intelligence unit called the “Technical Service Division” to intercept conversations and perform covert operations within India and across the border on grounds of ‘national security’. The army chief, when confronted, defended it saying that it was for “stabilising the situation”. This should have been viewed more seriously.

After the 26/11 Mumbai terror attack in 2008, the Institute of Defence Studies and Analyses (IDSA) published a comprehensive report titled ‘A Case for Intelligence Reforms in India‘ in 2012, embodying recommendations of their task force comprising retired intelligence and military officials. The task force had consulted many specialists, including me, who sent papers. These recommendations were also ignored.

Illustration: Pariplab Chakraborty

Intelligence reforms in the UK: A model

The UK set up an excellent watchdog system in 2000, creating the statutory post of ‘Interception of Communications Commissioner’ under a 2000 law. The commissioner had powers to inspect national intelligence agencies and police forces to verify their interceptions for yearly reporting to the prime minister and parliament.

However, the powers granted to the agencies were found inadequate when terrorist groups like ISIS upgraded their communications. Hence, enhanced powers were conferred by the Investigatory Powers Act, 2016, allowing “targeted equipment interference” of computers and cell phones.

At the same time, keeping privacy in view, a new body to regulate and prevent misuse of these powers was created. The Investigatory Powers Commissioner’s Office (IPCO) now strictly regulates covert investigatory and interception powers by more than 600 public authorities, including the UK’s intelligence agencies, law enforcement agencies, police, councils, and prisons. Their last report to UK Prime Minister Boris Johnson in October 2020 is available on the Internet.

Could misuse of Pegasus have been avoided?

The allegations of widespread misuse of Pegasus spyware, uncovered by an international consortium of media organisations including The Wire, could have been avoided if successive governments had not refused to change the system and hidden intelligence collection operations behind a cloak of secrecy, despite several proposals to initiate reforms.

India could have been saved from the Pegasus scourge had it simply followed the example of the UK, which had at one point the opaquest intelligence system but transformed itself into one of the most transparent – and effective – models.

Vappala Balachandran is an author and columnist. He was a former special secretary, Cabinet Secretariat. Views are personal.