The new twists in the Ishrat Jahan encounter case highlight the need for parliamentary oversight of intelligence agencies
The Ishrat Jahan encounter case is like the proverbial can of worms
whose contents have already spilled out. Not only has it shone the
spotlight on the ruthless and, possibly, illegal manner in which the
police and intelligence agencies fight terrorism, it has also exposed
the Narendra Modi government’s poor record of managing the Gujarat
police. And now, it has created schisms within the State police force,
and between the Intelligence Bureau (IB) and the Central Bureau of
Investigation (CBI).
At the outset, some plain facts: first, fake “encounter killings” — the
term used for extrajudicial execution of criminals and alleged
terrorists by the police — are not unique to Gujarat. Hundreds of them
take place across the country and the policemen involved are often feted
as “encounter specialists” whereas, in fact, what they specialise in is
the cold-blooded and completely illegal executions of unarmed persons.
Second, there is no exemption for anyone in India’s security set-up to
carry out extra-judicial executions. In other words, there is no Armed
Forces (Special Powers) Act (AFSPA) which indemnifies the State police,
politicians or Central intelligence officials from killing alleged
terrorists without judicial due process.
To harm Modi
Writing on his website earlier this month, the BJP leader, Arun Jaitley,
reiterated the Gujarat police account that the Ishrat group was out to
assassinate Mr. Modi and, based on information provided by the IB, it
was intercepted and its four members killed in the encounter; after
backing the State police version, the Union government changed tack and
was now trying to use the case to attack the BJP.
A few “disgruntled police officials” formed the core of the CBI’s case
and an effort was being made to target BJP ministers like Amit Shah and
Gulab Chand Kataria of Rajasthan with the eventual aim of hitting at Mr.
Modi. Now, the Union government had taken it a step further by
undermining the IB in its pernicious campaign to harm Mr. Modi and the
BJP.
Officers of forensic and intelligence agencies reconstructing the Ishrat Jahan encounter case on the outskirts of Ahmedabad. |
Mr. Jaitley, also the former Union Law Minister during National
Democratic Alliance rule, has not said much about the other
extra-judicial killings in Gujarat. A Supreme Court mandated Special
Task Force headed by a retired Justice H.S. Bedi is investigating 16
encounters that took place between 2003-2006 in Gujarat. In most of the
encounters, those killed were alleged to be targeting Mr. Modi and other
top BJP ministers in the State. This was the accusation against Sameer
Khan Pathan, Sadiq Jamal, Mahendra Jadav, Ganesh Khunte, Sohrabuddin
Sheikh, Tulsi Prajapati, Ishrat Jahan, Javed Sheikh (aka Pranesh
Pillai), Zeeshan Johar and Amjad Ali Rana. It is another story that most
were petty criminals and there is no real evidence that they were out
to kill Mr. Modi.
As for Ishrat and her companions, there is considerable mystery about
their antecedents and how they came together. As Mr. Jaitley points out,
the Lashkar-e-Taiba (LeT) journal, Ghazwa Times, acknowledged
her as a cadre, and later withdrew its claim. News leaks claim that the
LeT operative, David Coleman Headley (Daood Gilani), had told the
Federal Bureau of Investigation (FBI) that Ishrat had been recruited by
the LeT and that this fact had been communicated to the Indian
intelligence, or the National Intelligence Agency (NIA). But there is no
reference to Ishrat in the NIA’s report of Headley which was made
available to the media and which did have some references to other LeT
plots that Headley was aware of. There is something to the issue though
since G.K. Pillai, the Union Home Secretary in 2009, acknowledged an
affidavit of his ministry to the Gujarat High Court that said there was
intelligence information that Ishrat and her companions were terror
suspects. More recently, in 2011, Mr. Pillai had reiterated that he
stood by the IB tip that linked Ishrat Jahan to an LeT module.
But whether or not Ishrat and her group were terrorists is not the
issue. What the Gujarat police officials are being charged with is
extra-judicial killing. There are no exemptions in the law for carrying
out fake encounters even if the targets are terrorists. The IB is not
exempt from the operation of the law of the land either. Mr. Jaitley, of
all people, should know that only the judiciary has the right to order
an execution, and, after due process.
The ugly truth is that the Gujarat government cynically used the
instrument of extra-judicial executions to burnish their own anti-Muslim
credentials. In the process, their police officials and, possibly,
their ministers, have broken the law. The behaviour of Gujarat police
officers such as D.G. Vanzara among others was perhaps most brazen
because of the protection they felt that they had from the then Home
minister Amit Shah, and, possibly, Mr. Modi. Murder is a very grave
charge, and it is far more serious when those accused of it are
officials or ministers of the government sworn to uphold the law of the
land. Whether or not the police officials who have given the CBI
evidence of the wrongdoings of the Gujarat police officers are
disgruntled doesn’t really matter. What matters is the truth, and the
legal consequences thereafter.
Then there is the issue of the IB. Whether or not Rajendra Kumar, the IB
Joint Director in Gujarat, crossed a legal threshold can only be
determined through further investigation, and may eventually have to be
dealt with by the courts. But there has been something deeply disturbing
about the manner in which India’s internal intelligence agency has
worked on some terrorism cases in the past. There are several incidents —
the Ansal Plaza “encounter” of 2002, or the 2006 attack on the
Rashtriya Swayamsevak Sangh (RSS) headquarters, to name just two — which
appear to have been staged for domestic political effect, rather than
any other purpose. Incidentally, one of the incidents was during the
rule of the National Democratic Alliance (NDA), and the other, the
United Progressive Alliance (UPA).
Independent body
There are no independent means of verifying whether the IB stays within
the red lines of the law when it gathers intelligence information or
processes and forwards it to State police forces because there is no
oversight mechanism to ensure that. Alone among the democracies, India
keeps its intelligence agencies away from parliamentary oversight and,
indeed, there is little or no internal oversight either. Likewise, short
of recourse to the courts, there are no means available to the citizen
to take up the issue of police excesses. The result is the persistence
of a culture of impunity among the police and intelligence authorities.
Hopefully, on the issue of the Gujarat extra-judicial killings, the
courts will weigh the evidence that the SIT and CBI have gathered. Those
accused will have the opportunity to respond, and the courts will weigh
the evidence and pronounce their verdict. But given the gravity of the
charges, there must be some greater takeaway for our security set-up.
First, there is the need for a mechanism to ensure that charges of
police excesses are quickly investigated and dealt with. Second,
terrorism or no terrorism, the intelligence agencies of the country need
to function within the law, and this is not something that can be done
on the basis of self-certification, but a fact established through an
independent, internal inspectorate, as well as a larger parliamentary
oversight system.
(Manoj Joshi is Distinguished Fellow, Observer Research Foundation
and a member of the National Security Task Force 2011-2012, whose
recommendations are before the Cabinet Committee on Security.)
The Hindu June 18, 2013