How legalised ‘controlled ops’ can prevent Army operations like in Nagaland

If there were embedded sources in Nagaland, where a botched Army operation killed 13 villagers, enhanced accuracy of information would have ensured reduced damage.

Fifteen people, including 14 civilians and a soldier, died in an alleged ambush gone awry and subsequent violence at Nagaland's Mon Saturday | ANI

Former special director of Intelligence Bureau Rajendra Kumar, in the Ishrat Jahan case, and Army officer Lt Col Prakash Purohit, in the 2008 Malegaon blasts, are not the exceptions by any means. There are many more officers who have escaped ignominy simply because their actions have not landed up in the dragnet. On occasions, either their seniors or political leaders have sided with them, or their ‘misdemeanours’ have not been noticed or highlighted by adversaries or competitors or activists or the public. While risk-taking is an integral component of policing and security in India, the risks taken are often disproportionate and sometimes beyond the purview of law. Perhaps ‘controlled operations’ – ‘covert operations’ carried out by ‘authorised persons and officials’ under proper authority – can help change that.

Embedded sources in organised crime gangs or mafias can furnish insider information about activities of criminals, insurgents, terrorists, which would otherwise be evasive. Imagine if embedded sources were in place in the recent incident in Mon, Nagaland, where an Army operation resulted in the death of 13 villagers. The chances of the operation going wrong would have diminished multiple times. Enhanced accuracy of information would have ensured reduced damage, if not increased success. Such ‘embedded ops’ are technically called ‘controlled operations’. But, currently these fall outside the scope of law.

A double-edged sword 

Whether detection of crimes or investigation or busting organised crime gangs, militants or insurgents, there are innumerable instances where access to ‘insider information’ is essential to policing and security. Sometimes, even to check security and bandobast at important events, decoys are needed to be deputed. These decoys, whether police officers in civilian uniform or civilians per se, run the risk of their lives.

There are instances where police and security officials have been left in the dark, fending for themselves if things go wrong. Then there are instances where police officials or security personnel allow the ‘crime’ to take place, often in the hope of catching the bigger fish. If they are lucky, they will catch the big fish. But if they are unlucky, besides the big fish evading them, they also end up being complicit in the crime they allowed to take place.

Crime prevention, detection and investigation tactics and strategies are highly personalised. Perhaps there won’t be any official from the policing and security domain who have not risked their life or limb or job at the altar of performance – trying to walk that extra step to get to the root of crimes in general and organised crimes in particular.

Numerous officials have indulged in practices that border on their active or passive participation in crimes to bust a network or get evidence which would otherwise not have been easy to lay hands on. There have been occasions where narcotics or arms or even other proceeds or instruments of crime have been able to ‘pass through’ – in the hope that these tactics would yield a bigger catch. Then there are instances where the criminals and sources seek either a portion of the bounty for information or passively assist the security officials in their endeavours – competing crime syndicates or partners are valuable sources of information.

Needless to say, most such efforts are without any legal or administrative backing, which can stand the test of legal scrutiny. Hardly any such instances are documented where mutual trust and faith among the law enforcement officials could have formed the cornerstone of a healthier criminal justice system.

Poor public image of officials

An undesirable fallout of these practices is that civilians/public or sources ‘passively assisting’ the security officials easily presume that the latter are ‘complicit’ in crimes and often facilitate crimes. In fact, a vast majority of the public subscribes to this view. This perception is not wholly correct, but not unfounded either. Though statistics aren’t available, it would not be wrong to presume that most such ‘passive participation’ doesn’t result in the desirable outcome for myriad reasons. Often the instrument, object or proceeds of crime do reach the final destinations and the law enforcement agencies are left wobbling.  Without a formal system in place, accountability is a casualty too.

The intelligence agencies do have well-developed and well-defined standard operating procedures (SOPs) but what they do usually does not have a ‘prosecutorial interface’. They do help in thwarting the threats and plans of organised criminals and terrorists, but typically want to operate under the garb of anonymity, shying away from court proceedings and unwillingness to disclose their modus operandi and tactics. These leave gaps in the system where investigators have to resort to other tactics to bring on board evidence that they otherwise would not have access to. Naturally, prosecution work suffers and an intelligent lawyer would be able to sow doubts, pierce holes in the prosecution narrative and secure acquittals or lesser punishments.

Controlling ‘controlled ops’

The concept of ‘controlled operations’ is the legal and administrative basis to help ramp up our ‘operational capabilities’ in dealing with organised crimes and even with serious crimes and criminals. Except the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, and the ‘trap cases’ under the Prevention of Corruption Act, 1988, perhaps no other Indian legislation enables controlled operations. The authority carrying out these ‘covert ops’ may act under a judicial or executive authorisation or a mix of the two – typically, an executive authority would enable a covert activity as a temporary and immediate measure until a judicial approval is obtained.

The covert operations could involve participation of law enforcement officers alone or may even involve ‘civilian participants or sources’ who act in tandem or guidance or supervision of the law enforcement officers. Controlled operations are typically carried out for the purpose of obtaining or securing additional information or evidence that may lead to the prosecution of a person or an organised crime group and also help prevent botched operations. The offences for which ‘controlled operations’ can tactically be deployed could be diverse and varied and a variety of parameters can be prescribed. These operations could also be facilitated for ‘foreign requests for investigations’.

Thus, police officers or their ‘insider sources’ could officially be deployed to help facilitate a crime in a controlled manner so that the larger network can be unearthed, without exposing the officers to being branded as criminal. ‘Controlled delivery’ or instruments or proceeds of crimes is a small component of the entire gamut of controlled operations. The law enforcers need to be lawfully empowered to ‘control’ the speed, pace, time, place and quantity of a criminal act so that they can intervene when appropriate.

A sound law is needed

An umbrella legislation covering the definition, nature, scope, and manner of conduct of controlled operations along with the mechanisms and institutions for maintaining supervision and checks and balances is an absolute need in India. It could be the vital link between intelligence operations and intelligence-led-operations on the one hand, and investigation-prosecution end of the spectrum on the other. An enabling legislation would not only lend teeth to the law enforcement agencies, but would also decriminalise such behaviours or conducts that would otherwise easily qualify as crimes.

In a positive domain, such a legislation would help improve the public image of the police and law enforcement agencies in the country and also help dismantle the organised crime networks like drugs, arms trafficking, insurgency/terrorism, human trafficking, corruption, banking frauds and asset tracking, and even money laundering or extremist networks legally. Evidence and modus operandi that have evaded us thus far will be within striking reach.

With such a law, the proverbial black and grey acts would become ‘white’ and the public order and rule of law would be strengthened.

The author is Director General of Police, Nagaland. He tweets @rupin1992. Views are personal.