February 24, 2012

Dear

Kindly refer to your letter dated February ......, 2012 addressed to the Hon’ble Prime Minister on the notification of the NCTC and the reply by the Prime Minister dated February ........, 2012.

I have been asked by the Prime Minister to address the concerns expressed by you and to consult with you on this matter which, I am sure, you will agree is a matter of national importance and should be kept above parties and politics.

All of us are agreed that terrorism is a grave threat to our country and our way of life. Countering terrorism is, therefore, a shared responsibility. We had, working together, decided to amend the Unlawful Activities (Prevention) Act in 2004 and in 2008, and I may assure you that the intention of the Central Government is to continue to work with State Governments in order to meet the challenge of terrorism.

I enclose a note on the genesis, objectives, structure and powers of the NCTC and request you to carefully consider the note. The Office Memorandum dated 3.2.2012 notifies the setting up of the NCTC. Before we take the next steps, I have asked the Home Secretary to call a meeting of the Directors General of Police and the Heads of the Anti-Terrorist Organisations/Forces of the State Governments and discuss in detail the scope and functions of the NCTC.

I shall be happy to receive your comments and to respond to any further issues that you may wish to raise.

With regards,

Yours sincerely,

(P Chidambaram)

Encl.: as above

Letters sent to the following:

1. Chief Minister, Bihar

2. Chief Minister, Gujarat

3. Chief Minister, Himachal Pradesh

4. Chief Minister, Jharkhand

5. Chief Minister, Karnataka

6. Chief Minister, Madhya Pradesh

7. Chief Minister, Odisha

8. Chief Minister, Tamil Nadu

9. Chief Minister, Tripura

10. Chief Minister, West Bengal

Note on NCTC

1. This note deals with the genesis, objectives, structure and powers of the proposed NCTC. A Group of Ministers (2001) that reviewed the internal security system in the aftermath of the Kargil conflict had recommended establishment of a Multi Agency Centre (MAC), a permanent Joint Task Force on Intelligence (JTFI) and an Inter State Intelligence Support System (INSIST). The recommendations were broadly accepted by the then Government. The Second Administrative Reforms Commission (8th Report, 2008) had recommended that the Multi Agency Centre should be converted into a National Centre for Counter Terrorism with personnel drawn from different intelligence and security agencies.

2. The Unlawful Activities (Prevention) Act was made in 1967. By amending Act 29 of 2004, section 2(e) was inserted enabling the Central Government to specify a “Designated Authority”. This came into force on 21.9.2004. Subsequently, by amending Act 35 of 2008 some more amendments were made to the parent Act, and section 43A to section 43F were inserted in the Act. These amendments came into force on 31.12.2008.

3. Reference has been made to section 43A. That section enables the Central Government to empower any officer of the Designated Authority under certain circumstances. The circumstances are that the officer knows that a person has committed an offence under UA(P)A or knows of a design by a person to commit any offence under UA(P)A. In those circumstances alone, the officer would have the power to arrest and the power to search. However, section 43A has to be read along with section 43B and in particular sub-sections (2) and (3) of section 43B which read as follows:

“(2) 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.

(3) The authority or officer to whom any person or article is forwarded under sub-section (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code.”

4. When the Bill was introduced in December, 2008 to amend UA(P)A, it was passed by both Houses of Parliament. There was no demur or opposition to either section 43A or the other amendments.

5. Until now, there was no appropriate body which could be specified as the “Designated Authority” under section 2(e) or upon which powers could be conferred under section 43A. When the Cabinet Committee on Security approved the setting up of NCTC, it also decided that the Director, NCTC may be specified as the “Designated Authority” and the officers of the Operations division of the NCTC may be given the powers under section 43A.

6. NCTC’s mandate is to draw up plans and coordinate action for counter terrorism. Its duties and functions are confined to counter terrorism. The Office Memorandum dated 3.2.2012 provides for a Standing Council consisting of the Director, NCTC, the three Joint Directors, NCTC and the Heads of the Anti-Terrorist Organisation or Force in each State. The Standing Council shall meet as often as necessary and may also meet through video conference. The Standing Council shall ensure that NCTC is the single and effective point of control and coordination of all counter terrorism measures (para 6.1).

7. As regards the power to seek information (para 3.5), that power is already available with the Multi Agency Centre and it is now proposed to subsume MAC in the NCTC. Hence, no new power is envisaged.

8. A body mandated to deal with counter terrorism must have, in certain circumstances, an operational capability. This is true of all counter terrorism bodies in the world. When engaged in counter terrorism operations, the officers must have the power to arrest and the power to search which are the bare minimum powers that would be necessary. Besides, the powers conferred under section 43A must be read with the duty under section 43B to produce the person or article without unnecessary delay before the nearest police station (which will be under the State Government), and the SHO of the Police Station will take further action in accordance with the provisions of the CrPC.

9. It may be noted that the powers under section 2(e) and section 43A are available to both the Central Government and the State Governments.

10. A law to deal with terrorism such as UA(P)A is within the legislative competence of Parliament and similar laws (TADA and POTA) have been upheld by the Supreme Court. Both Act 29 of 2004 and Act 35 of 2008 that amended UA(P)A were passed by Parliament. There was no objection to either section 2(e) or section 43A. All that the Central Government has done in the Office Memorandum dated 3.2.2012 is to notify the setting up of the NCTC; to specify its duties and functions; to outline its structure; and to confer minimum powers that are required for any counter terrorism body.

11. As regards the location of the NCTC, after considering different options, the Cabinet Committee on Security decided to place it within the Intelligence Bureau (IB). In this regard, Government was guided by the recommendations of the Group of Ministers (2001) that IB shall be “the nodal intelligence agency for counter intelligence and counter terrorism within the country.”

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