For the past one year, 3 men have been in jail for allegedly spying for the Americans. The media, based on police briefings, condemned them outright. A closer look at the evidence reveals that the case against them is far from being solid. The problem is the Indian tendency to see spies under every bed and the Official Secrets Act of 1923 under which any association with a foreigner, not just a foreign spy, can get you a prison sentence. This story was published in Hindustan Times May 27, 2007 first.
It is nearly a year since the Mumbai train blasts, and three months since the Samjhauta incident, but the authorities have not found out who was behind the attacks. Nor are they sure whether they can predict where the next strike will occur.
“In the past couple of years, all the information we used to get from telephone and wireless intercepts has dried up, because most sensitive communications are going on the web,” says a counter-intelligence officer. Why this happened, and why the country remains blindsided in relation to terrorist communications is an involved, if sorry, story.
Last summer, in the months of June and July, three persons, Shib Shankar Paul (36), a systems analyst at the National Security Council Secretariat, his superior officer Commander Mukesh Saini (56) who had retired on March 31, 2006, and Brigadier (retired) Ujjal Das Gupta (62), head of the computer section of Research & Analysis Wing, were arrested under the draconian Official Secrets Act for allegedly passing on information to Rosanna Minchew (29), an American diplomat.
Saini and Minchew were coordinators of the Indo-US Cyber Security Forum, an offshoot of the Joint Working Group on Counter-Terrorism, aimed at dealing with cyber-terrorism and information security. The NSCS, which at the time doubled as the Joint Intelligence Committee, was the nodal agency from the Indian side, and officers from all key agencies — the Intelligence Bureau, the Research and Analysis Wing (R&AW), the armed forces, the super-secret National Technical Reconnaissance Office — participated in its programmes. As a US nominee to the forum, Minchew, reportedly an intelligence officer under diplomatic cover, was a regular participant in its programmes and visited the NSCS headquarters at Patel Bhavan in New Delhi several times.
Sources say that Minchew left the country sometime in May 2006; her last recorded visit to the NSCS was on March 30. An official spokesman of the US Embassy declined to give any information about Minchew’s stay in India, why or when she left or whether she would return to face the charges saying that all he could say was: “We do not comment on personnel issues and will have to leave it at that.”
The three Indians are still without bail and in jail, their trial yet to get underway. “Bail is denied the moment the judges hear the word ‘PMO’ (Prime Minister’s Office),” says Shilpi Jain who represents Paul. At the time, media reports had stressed that the NSCS is part of the Prime Minister’s Office.
HT has spoken separately to NSCS and R&AW officials, as well as a highly placed American official, and all concur that the three are not guilty of espionage. “We have not received an iota of information,” says the American at whose request a high-level review of the case was undertaken in Washington later.
“All this talk of passing information through CDs, laptops and pendrives is a figment of someone’s imagination,” he said. While an American official could be expected to be less than candid on a matter relating to espionage, NSCS officials, too, vigorously asserted Paul and Saini’s innocence.
The R&AW has flatly told the investigating agencies that Das Gupta has done nothing wrong and they have no evidence to present to support the government’s case. Paul was arrested on June 11, 2006, Saini on July 6, and Das Gupta on July 19. The American official concedes that Paul and Minchew, who he acknowledges was an intelligence officer, “may have developed romantic feelings for each other but there was no exchange of information.”
While Radha, Paul’s wife declined to be interviewed for this article, her brother, Dipankar Banerjee told HT over the telephone from Jaipur where he lives, “As far as the question of Rosanna is concerned, Paul was asked by a senior officer to help her in learning computer applications.”
He insisted that the chargesheet “is full of errors and would not stand the scrutiny in the court of law.” Das Gupta’s family did not want to comment on the case. Saini’s lawyer, RS Soni said his client “was a most honest and decorated officer and was being harassed on the basis of forged documents.”
The three men’s trial is still to begin and while the chargesheet speaks of transfer of information with the use of CDs, laptops and pen drives, it does not quite explain why Paul would, as he has acknowledged in his confessional statements, have lugged a laptop and CDs in his assignations with Minchew all the way to Chattarpur temple and Sultanpur lake, when the same chargesheet also lists his confession that he was transmitting data from cybercafes.
Vinod Mall, Director in the NSCS, has told the investigating officer Sajjan Singh in writing that Paul was authorised to have the documents in his possession, but “he was not authorized to carry the data outside the office.”
NSCS officers confirm Banerjee’s assertion that Paul had a whole range of documents because he had been asked to create a computerized database. “Legally he should not have had the documents at home, but in real life this rule is invariably broken,” says a senior NSCS source. “Paul was very hard working and we put so many demands on him that I am not surprised he was carrying work home,” he added.
According to an NSCS official, when the IB, which broke the case, arrived to question Paul on June 9, he cooperated with them explaining the file retrieval and firewall system he had set up for the organisation. He came early the next day, Saturday, to assist them further.
“It was later that evening that it probably dawned on him that he was likely to be arrested and he frantically rang his wife, Radha, and asked her to hide his pendrive,” says a colleague. The conversation was recorded and forms part of the chargesheet.
Saini, Paul’s superior at the computer centre at the NSCS, is also accused of having two documents, one on the implications of the Kra Canal in Thailand for India, and India’s draft nuclear doctrine. Neither, says Mall, are NSCS documents. The senior NSCS source says, “the Kra Canal issue was Saini’s hobby horse and he had drafted and circulated a document of his own.”
The draft nuclear doctrine has been a public document from the very outset. Das Gupta’s lawyer PK Dubey has argued in court citing R&AW statements that project Aveneshak, that he is supposed to have communicated to Minchew, “is not directly connected to the security of the country, though it may have indirectly been construed as such.”
The allegation against Saini is that he got a job in Microsoft immediately after retiring from Navy, but says a former colleague in the NSCS, “With his qualifications he could have walked into any IT job anytime.” What Das Gupta received for alleged services rendered is not stated. As for Paul, according to the senior NSCS source, the police first spoke of him getting Rs 25 lakh, then scaled it down to Rs 16 lakh and then to Rs 8 lakh, the identical sum he had used to buy a flat, only that it was taken against a loan notified to his office, as per rules.
Neither in the case of Saini, nor Das Gupta, have the police charged that they actually communicated the allegedly unauthorised information they had with them to Minchew. But the OSA’s section 4 is unyielding, “A person may be presumed to have been in communication with a foreign agent if he has... visited the address of a foreign agent or consorted or associated with a foreign agent.”
The big question in everyone’s mind at NSCS and R&AW is why all this happened. There are theories, but no real facts. Banerjee says of his brother-in-law Paul, “He had an impeccable professional record, and anybody in doubt can check from his office. He has been implicated because of jealousy.” Soni, lawyer for Saini echoed this and said “an honest officer was being implicated because of jealousy by some IB officials.”
The senior NSCS source acknowledges, “There could have been sheer jealousy on the part of someone against Saini getting a good job.” In the American official’s view, “It seems to be a case of rivalry between two of your intelligence agencies [R&AW and IB]”.
Another intelligence source speculated that deeper forces were at work to derail Indo-US cooperation in a vital area. Or it could be over zealousness on the part of the IB. But why they chose to act after one of the key accused, Rosanna Minchew, left the country is a question that has no answers.
The IB is, of course, not fallible. On December 22, 2006, some six months after Paul, Saini and Dasgupta had been arrested, President APJ Abdul Kalam had occasion to chide the IB about how its zealousness sometimes leads to collateral damage.
Before he began his lecture at a function to mark the19th IB centenary endowment lecture, he said, “Sometimes in the intelligence game, innocents are picked up and framed. I remember the case of one of my friends at ISRO who was picked up and framed in a spy case. He was later discharged by the courts as his guilt could not be proved.”
The President was referring to the so-called ISRO spy scandal that devastated the organisation in the mid-1990s and destroyed the lives and careers of S. Nambinarayanan and D. Sasikumaran, two leading scientists who were accused of being part of a spy-ring managed by two Maldivian women. The charges were investigated later by the CBI and found baseless.
In the late 1980s, BK Subbarao, a retired captain of the Indian Navy was imprisoned for 20 months on trumped up charges of espionage. Only after a gruelling battle of five years, he was able to prove his innocence before the High Court, a judgment later ratified by the Supreme Court.
The ISRO case arguably delayed the country’s cryogenic engine programme, the price of the NSCS ‘scandal’ is no less severe. Locating terrorists is a challenge in itself, trying to track their communications in the cyber era is a nightmare.
Very few countries have the special data mining software and massive dictionary computers that can trawl the tens of billions of packets of information in chat strings, blogs, e-mail, websites, voice over internet phone calls, locate suspicious patterns and subject them to more intense scrutiny. Two countries that have the greatest expertise in this area are Israel and the US.
The Indo-US Cyber Security Forum, a subgroup of the Joint Indo-US Working Group on Terrorism, was set up in 2001 to provide India with some of that know-how. The forum organised several meetings, seminars and workshops involving Indian and American participants, many from the security forces or intelligence agencies.
The last major meeting was held in January 2006, But after Paul’s arrest in June 2006, all activities of the Forum have come to an end. “We wanted to nominate some officers to participate in conferences abroad,” says an NSCS official, “but no one wants to touch the subject with a barge-pole.”