Keynote Address by Dr. Arvind Gupta, Director, VIF

Thank you very much for inviting me to participate in this trilateral India-France-Germany Seminar on ‘Protecting National Security in the midst of Global Challenges: Legal Dimensions’.

Challenges of National Security

The challenges to international and national security are multiplying rapidly. Today, development is being securitized. The concept of security has been widened from the protection of state borders to protection of an individual against multiple risks and threats. The nature of conflict is changing.

Terrorism is one example. It cannot be fought only by using force and military means alone. The US has spent trillions of dollars and lost thousands of lives in its war against terrorism without success - we must ask why? Terrorism has seeded radicalization. It requires a multi-pronged approach which involves understanding the psychology of individual to forging international cooperation and developing legal frameworks, both national and international. Terrorism is also connected with the politics. While international jurisprudence to deal with international terrorism issues is still missing, politics often trumps legality as we are witnessing in the case of the inability of the Counter-Terrorism Committee of the UN to declare Masood Azhar as a global terrorist due to objections from China.

Security in cyberspace is another challenge which is growing rapidly. We still do not have a proper framework to deal with this challenge. The Budapest Convention that deals with cyber-crimes is a limited convention both in its scope and reach. Many countries have enacted laws to deal with cyber security. But the international framework which is acceptable to all is still missing. The UNGGE (Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security) has failed to come up with an consensus on the norms of state behavior in cyber space.

Maritime security is another example of inadequacy of the international law. The UN Convention on the Law of the Sea has proved to be ineffective in dealing with the challenges of order on the sea. We have seen how China has dismissed the Permanent Court of Arbitration’s verdict on South China Sea and gone ahead to take in possession of the islands. Piracy, though under control, remains a perennial problem.

There are many examples of this nature. Legal measures are necessary but that is not sufficient to deal with the problems of security challenges which require international cooperation. These challenges often go unrecognized or inadequately addressed due to inability of the nations to accept restrictions of one kind or the other due to political reasons.

Situation in India

India faces multiplicity of external and internal security challenges. We have faced externally sponsored terrorism and proxy war almost continuously since 1947. Political negotiations and diplomacy have not been able to address the problem of cross-border terrorism effectively. Pakistan enjoy a critical location at the geopolitical chess board. It continues to support terrorism and has in recent days launched several attacks in the State of Jammu and Kashmir. The attack on Indian Parliament and numerous other soft targets has led the country to build an extensive counter-terrorism structure. Since India is a democracy, such a structure is necessarily based on the rule of law.

Legal Evolution

Starting from Police Act of 1862, to the National Intelligence Agency (NIA) Act of 2008, India has erected a vast array of laws, rules, and regulations to deal with the terrorism, insurgency, money-laundering, drug-tafficking, human trafficking, organized crime, and host of other such challenges. Some of the key legislature which provides the legal framework for dealing with internal security challenges include: Armed Forces (Special Powers) Act (AFSPA) -1958, Unlawful Activity (Prevention) Act UAPA –1967 which eventually incorporated some terrorism related offences, National Security Act - 1980, Terrorist Activity Disruption Act (TADA) - 1987, which was the first anti-terror legislation in India, the Prevention of Money Laundering Act (PMLA) - 2002 which deals with prevention and control of money laundering, Foreign Exchange Management Act (FEMA) - 1999, Foreign Contribution Regulation Act (FERA) - 2010, Income Tax (IT) Act - 2008, NIA Act – 2008, and so on.

While the legislature has been busy enacting these laws, the courts have been active in interpreting their validity. There have been cases when the courts invalidated sections of these laws e.g. Section 66A of IT Act on the grounds of privacy. What has emerged clearly is that the courts would not let the executive enact overly stringent laws which compromise the rights of the individual. Media also keeps a watch on the activities of law enforcement agencies. The laws provide sufficient safe guards in order to protect the individual’s fundamental rights guaranteed by the constitution.

Challenges

The challenges before India are several. One is how to deal with new-age crime and terrorism which is often backed by technology. While new laws are enacted, the capabilities and capacities of the agencies to detect criminal activity and protect the interest of individual is often limited. The social media has gone out of control and is today one of the complicit factors in the spread of crime and terrorism.

The second challenge India faces is to deal with national security issues in the framework of Center-State relations as laid down in the Constitution. India is a federal entity, and the Constitution lays down the powers of the central government and the states. While such a separation works most of the time, on some occasions the arrangement breaks down. This happens when the inland security issues cover many states and lie in multiple jurisdictions.

Law and order is a state subject. But states often do not have enough resources to deal with law and order. Crime and terrorism do not respect the boundaries. Thus the inter-state coordination becomes a major problem.

International Cooperation

The third challenge is of international cooperation. Here, one has to deal with multiple national and international laws and jurisdictions. International law is weak to deal with challenges like terrorism and cybercrime. India has established cooperation with large number of countries to deal with international terrorism. The results are at best mixed.

European Union (EU)

EU has borne the brunt of terrorist attacks for the last several years. It has evolved a comprehensive counter-terrorism strategy based on the four main pillars - prevent, protect, pursue and respond. The EU is also taking steps to combat radicalization and the recruitment of terrorists. Immigration has emerged as a major issue of concern in EU states.

Despite the best efforts of the EU and the vast amount of resources having been spent on counter-terrorism and counter radicalization efforts, the problem remains. Terrorism and radicalization are growing. The phenomenon of a large number of EU citizens of young age including women fighting in the ISIS controlled territory has come as big surprise. As per the Europol and Interpol reports, more than 5000 EU citizens (foreign fighters) are feared to have travelled to Syria and Iraq. It shows that radicalization cannot be tackled merely by legal and law enforcement measures. The reasons for radicalization are deeper and have to do with how the states and societies respond to religion, socio-economic factors and relationships amongst different sections of society. Lone-wolf attacks which are becoming increasingly common and difficult to detect are a manifestation of the complexity of the phenomenon of radicalization.

The India-EU Summit joint statement of October 06, 2017 spoke about a comprehensive approach to prevent terrorism, violent extremism and radicalization. India has been pressing hard for an early conclusion of negotiations and the adoption of a Comprehensive Convention on International Terrorism in the United Nations. This predates 9/11 and has called for an effective implementation of existing international commitments on countering terrorism, including the UN Global Counter Terrorism Strategy, relevant UN Security Council Resolutions and targeted Sanctions related to terrorism. The member states of the UN have not reached a consensus on the definition of terrorism, which is a prerequisite for an effective counter-terrorism strategy. Further, when leaders agreed to strengthen cooperation to take decisive and concerted actions against globally proscribed terrorists and terror entities, the recent selective approach about proscription of Jaish-e-Mohammed Chief Masood Azhar is a classic case failure in this regard. It is of utmost importance that states should take adequate measures to ensure that their territory is not used for terrorist activities.

Eradicating the financing of terrorism is of utmost importance. Here, international cooperation becomes critical. Steps needs to be taken to prevent the trafficking of drugs, narcotics, which often are the main sources of terrorism financing. Money laundering and smuggling, safe heavens etc. need to be eradicated in order to stop financing of terror. The Financial Action Task Force (FATF) has done a commendable job in last few years but there are instances that many countries are still not fully compliant with the FATF guidelines. Pakistan is one example.

Conclusion

Coming back to the Indian situation, there is a lot work still needs to be done to deal with internal security challenges. Enforcement of the rule of law is first priority. At the same time, there is a need for creating and maintaining a conducive socio-political environment, taking timely actions to resolve internal contradictions, establish credible mechanisms for grievance redressal, and ensuring timely dispensation of justice. There is also a need to strengthen a capabilities of law enforcement agencies, strengthening the process of intelligence and information sharing, building cyber capabilities and making international cooperation more effective and useful.

It’s a matter of satisfaction that in this conference, the best practices of India, France and Germany are going to be discussed. We need to learn from each other’s experiences. Information sharing, capacity building, dialogue amongst think tanks and civil society are important measures which should be implemented to strengthen trilateral cooperation.

I wish the conference all the success.