"Parliamentary approval of the creation, mandate and powers of security agencies is a necessary but not sufficient condition for upholding the rule of law. A legal foundation increases the legitimacy both of the existence of these agencies and the (often exceptional) powers that they possess." Though mechanisms for ensuring accountability of the executive to the Parliament are in place for most aspects of government in India, such mechanisms are completely absent for the oversight of intelligence agencies. In India, various intelligence agencies such as the Research and Analysis Wing, and the Intelligence Bureau are creations of administrative orders, and are not subject to scrutiny by Parliament. This is in direct contrast to the practise of the Legislature's oversight of intelligence agencies in most countries. Though different countries have different models of exercising such oversight, the common principle - that activities of intelligence agencies should be subject to Parliamentary scrutiny, remains uniform. In the US for example, both the House and the Senate have a Committee which exercises such scrutiny. These are House Permanent Select Committee on Intelligence, established in 1977, and the Senate Select Committee on Intelligence, created in 1976. Both committees have broad powers over the intelligence community. They oversee budgetary appropriations as well as legislation on this subject. In addition, the House Committee can do something which the Senate can not: “tactical intelligence and intelligence-related activities.” This gives the Committee the power to look into actual tactical intelligence, and not just broader policy issues. Intelligence agencies are also governed by a variety of laws which clearly lay out a charter of responsibilities, as well as specific exemptions allowing such agencies to do some things other government agencies ordinarily cannot. (For source, click here) In UK, the Intelligence Services Act of 1994 set up a similar framework for intelligence organisations in the UK, and also set up a mechanism for legislative oversight. The Act set up a Committee which should consists mostly of Members of Parliament. The members are appointed by the Prime Minister in consultation with the leader of opposition, and the Committee reports to the Prime Minister. The Prime Minister is required to present the report of the Committee before Parliament. (For the Act, click here) Recently, the Committee has expressed concerns in its 2009-10 report over the fact that it is financially dependent on the Prime Minister's office, and that there could be a conflict of interest considering it is practically a part of the government over which it is supposed to express oversight. (For the report, click here) A study titled "Making Intelligence Accountable: Legal Standards and Best Practice" captures the best components of Parliamentary oversight of intelligence bodies. Some of these are:
We wrote an FAQ on the Lok Pal Bill for Rediff. See http://www.rediff.com/news/slide-show/slide-show-1-all-you-wanted-to-know-about-the-lokpal-bill/20110808.htm The full text is reproduced below. What is the purpose of the Lok Pal Bill? The Bill seeks to establish an institution that will inquire into allegations of corruption against certain public functionaries. It establishes the office of the Lok Pal for this purpose. What is the composition of the Lok Pal? The Lok Pal shall consist of a Chairperson and up to eight members. The Chairperson, and at least half of the members have to be current or former judges of the Supreme Court or Chief Justices of High Courts. The other members will have at least 25 years experience in matters related to anti-corruption policy, vigilance, public administration, finance, law and management. Who selects the Lok Pal? The Selection Committee consists of the Prime Minister, Lok Sabha Speaker, the Leader of Opposition in each House of Parliament, a Union Cabinet Minister, a sitting Supreme Court Judge, a sitting High Court Chief Justice, an eminent jurist, a person of eminence in public life. The two judges on this Committee will be nominated by the Chief Justice of India. Who comes under the jurisdiction of the Lok Pal? There are seven categories of persons under the Lok Pal: (a) Prime Minister after demitting office; (b) current and former Ministers; (c) current and former MPs (d) all Group A officers of the central government; (e) all Group A equivalent officers or PSUs and other government bodies; (f) directors and officers of NGOs which receive government financing; (g) directors and officers of NGOs which receive funds from the public, and have annual income above a level to be notified by the government. The speech and vote of MPs in Parliament are exempt from the purview of the Lok Pal. What are the major powers of the Lok Pal? The Lok Pal has two major wings: investigation wing and prosecution wing. The Lok Pal can ask the investigation wing to conduct preliminary investigation of any offence alleged to be committed under the Prevention of Corruption Act, 1988. It can then conduct an inquiry. If the inquiry concludes that an offence was committed, the Lok Pal can recommend disciplinary action. It can also file a case in the Special Court. Does the Lok Pal need any prior sanction to initiate any action? No. The Bill states that the Lok Pal does not need prior sanction to inquire into an offence, or to initiate prosecution in the special court. What are special courts under this Bill? The central government is required to constitute special courts to hear and decide cases under this Bill. The Lok Pal shall recommend the number of such courts. What are the various time limits for conducting inquiry and trial? All preliminary investigation or inquiry must be completed within 30 days of the complaints (and can be extended for a further three months, with written reasons). The inquiry is to be completed within six months (extendable by six months). The trial is to be completed within one year of filing the case. This time may be extended by three months (and in further periods of three months each time) with written reasons, but the total time should not exceed two years. How can the Lok Pal be removed from office? The President may make a reference to the Supreme Court, (a) either on his own, or (b) if 100 MPs sign a petition, or (c) if a citizen makes a petition and the President is satisfied that it should be referred. If the Supreme Court, after an inquiry, finds the charge of misbehaviour was valid against the Chairperson or a Member and recommends removal, he shall be removed by the President. What are the provisions for the expenses of the Lok Pal? The Bill provides that all expenses will be charged, i.e., the amount will be provided without requiring a vote in Parliament. The Bill estimates recurring expenditure of Rs 100 crore per annum, and a non-recurring expenditure of Rs 50 crore. It also estimates a further Rs 400 crore for a building. What are the major differences from the Jan Lok Pal Bill drafted by Team-Anna? There are several differences. The composition of the Lok Pal and the selection process are different; the Jan Lok Pal draft included a search committee with civil society members to shortlist the eligible members of the Lok Pal. The Lok Pal had jurisdiction over the PM, the judiciary and all public servants (only Group A officers in the government Bill); it included the speech and vote of MPs in Parliament; it did not include NGOs. The Jan Lok Pal Bill provided that the investigation and prosecution wings of the CBI shall report to the Lok Pal for corruption cases. It also had penalties ranging from six months to life imprisonment (under the government Bill, the maximum imprisonment is derived from the Prevention of Corruption Act, 1988, and is 7 years).
