Wednesday, December 23, 2009

Gross injustice thrives in this country as well

The newspapers and TV channels have been full of the story of Vikram Buddhi, an Indian student in the US who has been sentenced to five years in jail for posting hate messages for George W. Bush. The sentence does appear somewhat harsh, but even his parents do not deny the basic charge. (I have been given to understand that this is incorrect and that his parents and Buddhi contest the charge) His father B.K. Subbarao, who spent four years
in jail on trumped up charges of spying in India, says that the behaviour of the jury and the judge made it a fit case for a mistrial.
Yet none in the media, especially our hyperactive TV channels, have bothered about a case of gross injustice, closer home, here in New Delhi. Three persons—two associated with the National Security Council Secretariat and one with the Research & Analysis Wing—have been in rotting in New Delhi’s Tihar jail for the past three and a half years on the charge of spying for the US. As of now they have been denied bail, and even copies of documents that they are alleged to have given to a US diplomat have not been given to their lawyers.
A year after their arrest, I had occasion to report on their plight. In the process, I looked at the case documents, talked to some of their lawyers, NSCS and US officials, as well as friends and colleagues, and came to the conclusion that the charges against them are bogus and that they are victims of monstrous injustice. Two years later, that wrong has not been righted.

Unfortunately, since the tag “national security” has been cited by the prosecution, the justice system of the country has entirely failed the three. On Monday, the Supreme Court adjourned a bail petition of Commander (retd) Mukesh Saini (58), formerly of the NSCS, one of those in detention. That of another accused, Brigadier (retd) Ujjal Dasgupta(64) director (computers) at R&AW will come up only next month. The third, Shib Shankar Paul(38), a computer systems official at the NSCS, too has been denied bail.
All three — Paul, Dasgupta and Saini — had been arrested in June-July 2006, for being associated with, Rosanna Minchew, a US intelligence officer working under diplomatic cover. There was nothing unusual or illegal about this because they were all members of the Indo-US Cyber Security Forum, an offshoot of the Joint Working Group on Counter-Terrorism, which had been formed to deal with cyber-terrorism and information security. In fact Saini and Minchew were joint coordinators of the group.

Capt B.K. Subbarao holds up the picture of his son Vikram Buddhi who has been sentenced to five years imprisonment in the US for threatening George W Bush

Of the three, Paul had no intelligence background. He was principally a computer technician. The charges against him, too, are vague. But his crime seems to be is that he allegedly developed an “intimate” and “close relationship” with Minchew — testified to probably by IB surveillance tapes of their allegedly mooning about in Lodhi Gardens and some South Delhi restaurants. Paul had access to no secrets and probably would not have recognised one if he saw it. He was a systems person you find in every office to service the system and take care of the glitches. However, he did have some old documents which he had got as samples from the NSCS to create an office intranet.
The charges against Saini are vague, one newspaper claimed that he passed information on the Indo-US nuclear deal and that the Delhi Police’s Special Cell had seized several documents “including the draft report of the Indian nuclear doctrine from his computer pen drive”. Even a university research scholar knows that the draft nuclear doctrine has been a public document from the very outset.
Incidentally, the other “sensitive document” that Saini had was on the implications for India of the Kra Canal linking the Bay of Bengal and the Gulf of Siam. This was actually Saini’s hobby horse and he was the author of the document which he passed on to friends and colleagues. And now he is being charged for possessing it.
Dasgupta is alleged to have copied documents from his office computer hard drive into a lap top and thereafter onto a pen drive. One of the documents relates to something called project Aveneshak which the R&AW itself accepts has nothing to do with the security of the country. From what I have learnt, the project was basically relating to data storage and transfer which was Dasgupta’s job.

What have these “spies” alleged to have gained? In Saini’s case, the police claim that he had prevailed on Minchew to get him a job in Microsoft, India, after taking voluntary retirement from his job at the NSCS. Now, it is well known that Saini was a first rate professional and was more than qualified for the job that he had arranged for himself before seeking voluntary retirement, a path that many other defence officers walk on regularly.
There seems to be no specific allegation of gain in Dasgupta’s case.
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, as per rules, to
his office.
Currently, both Saini and Dasgupta are awaiting the court’s ruling on obtaining copies of the documents that they are supposed to have given to Minchew. The government’s case is that these documents are so sensitive that they cannot be revealed.
But if they have already allegedly been given to the Americans and shared with the prosecution, why can’t they be made available to the defending counsels? “We need to know what is being used against my client,” says P.K. Dubey, Dasgupta’s lawyer.
Three and a half years in jail have broken Das gupta’s health. Here is a man who served the country for almost 40 years and now he is in a prison for no fault of his. I have lost track of Shib Shankar Paul’s lawyers. He is reportedly being assisted by the legal aid cell.
The prosecution will find it hard to convict the three of them of transmitting information because it did not take place. But the colonial-era Official Secrets Act’s Section 4 is unyielding. Even associating with a foreigner can be a crime. The principal charge they face is therefore possession of documents, which, of course, the prosecution is not willing to share with the defence.
If the documents against Saini are any guide, even this is not likely to work. Anyway, according to Dubey, even if convicted, the maximum sentence for this would be three years. And the three have already done three-and-a-half, without bail.


The case has already cost the country a great deal because all cooperation in the vital area of cyber security with the US has come to a stop. No Indian official is any longer willing to participate in the exercise for fear of similar persecution.
But the price paid by the three and their families is infinitely greater. Paul, Saini and Dasgupta have already gone through hell in the jail for no fault of theirs. Their families have been ruined and disgraced.
It is high time that the government stepped in and stopped this farcical persecution. Far from being a threat to national security, the case of the three has highlighted the extent to which the national security establishment has hijacked the democratic system of the country and undermined its judiciary.
This article appeared in Mail Today December 18, 2009

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