Make covert agencies accountable Outlaw extrajudicial killings

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The Central Bureau of Investigation has filed a chargesheet after investigating the 2004 "encounter" killing of teenager-student Ishrat Jahan and three others, who were falsely accused of plotting to kill Gujarat Chief Minister Narendra Modi. It has charged eight policemen, including senior Indian Police Service officers DG Vanzara and PP Pandey, with cold-blooded, premeditated murder.

The police abducted and unlawfully detained the victims. They blindfolded and drugged them, took them to an isolated spot, and pumped 70 bullets into them. The First Information Report on the "encounter" had already been drafted in advance.

This wasn’t the first time that policemen like Vanzara, Pandey, NK Amin and GL Singhal were implicated in "encounters". Gujarat has the distinction of recording one of the highest rates of "encounters" in India, with an unenviable number of senior policemen in jail for staging them.

The Sohrabuddin-Kauser Bi, Prajapati and other "encounters" show a well-established pattern of extrajudicial killings in Gujarat in 2002-08. The targets were always foreign-inspired terrorists out to eliminate Mr Modi. What better proof of his Great Patriotism? 

However, the Ishrat Jahan case is special, first, because of the testimony before a magistrate of a reputed officer, Deputy Superintendent of Police DH Goswami, that he heard Vanzara telling Singhal that he had permission to kill her from Mr Modi and junior home minister Amit Shah. This was stated under a Criminal Procedure Code section which makes it admissible as evidence.

A second new element is an Intelligence Bureau official’s involvement in the killling. According to the CBI, IB Special Director Rajinder Kumar was the operation’s "kingpin", who met Vanzara and Pandey several times to concoct the anti-Modi "terrorist plot" and hatch plans to eliminate Ishrat. 

The IB has been shamelessly planting stories in the media to claim that Kumar only gave intelligence "inputs" to the Gujarat police. Besides, Ishrat, it claims, wasn’t an innocent hard-working science student and family breadwinner. She was connected with and given arms training by the Pakistani jehadi outfit Lashkar-e-Toiba. 

Even assuming that Ishrat was so connected, it would be patently unjustifiable and illegal to kill her-instead of putting her on trial in a court which would duly punish her if the charge is proved. Nothing can condone cold-blooded summary execution, even less so when it’s conducted by the guardians of the law. 

The IB has long tried to vilify Ishrat by citing a statement allegedly made by Pakistani-American terrorist David Coleman Headley during custodial interrogation in the US, linking her to the LeT. But India’s National Investigation Agency (NIA), which examined Headley, says the IB’s claim is based on hearsay and uncorroborated. Headley, a double (or triple?) agent, is prima facie unreliable.

The IB has since changed tack and cites alleged telephone intercepts between LeT commander Muzamil and one victim of the 2004 encounter. But Ishrat Jahan doesn’t figure even obliquely in the alleged conversation! The intercepts were broadcast by "Headlines Today" on June 13, but the Gujarat High Court refused to take them on record as evidence. 

In the Ishrat case, the IB clearly overstepped its brief. Under the influence of overzealousness and some of its officers’ grandiose self-image as the defenders of national security, it collaborated with some of Gujarat’s most criminalised policemen to "neutralise" a mortal "threat" to Mr Modi by killing Ishrat, an innocent person.

The CBI’s case against Rajinder Kumar is reportedly "watertight". He apparently generated or instigated a series of false "inputs" in 2002-04, out of vengeful motives. One of the worst of these pertains to Sadiq Jamal from Bhavnagar, who was killed in 2003 in another fake "encounter", after being handed over to the Gujarat police by Mumbai’s notorious "encounter specialist" Daya Nayak. 

Kumar is likely to be named in a supplementary CBI chargesheet. Confronted with its probable comeuppance, the IB is resorting to a familiar dirty tactic: ducking responsibility, planting disinformation, obfuscating the pertinent issue-extrajudicial execution-and claiming it was only playing its legitimate intelligence-gathering and -sharing role.

The IB has no legal sanction or mandate, no formal charter, and works in a Constitutional vacuum. It was created not by an Act of India’s sovereign Parliament, but by an executive order passed in 1887 by the British secretary of state. Its main function until 1947 was to spy upon the colonial state’s enemies, especially Freedom Movement leaders. "It has remained like a ghost, without a statute, all these 125 years", says RN Kulkarni, a former senior IB official in a 2012 public interest petition.

The IB has always evaded accountability. It’s not answerable to the Cabinet, leave alone Parliament. It uses the secrecy around its covert activities as a shield against accountability. It famously misled Nehru in 1959-62 on the border tensions with China. Successive governments have used the IB to spy on political opponents, trade unionists and civil society activists. Indira Gandhi relied on IB "inputs" on the opposition’s alleged plans to destabilise her-and imposed the Emergency in 1975.

New disclosures show that in January 1977, when Indira Gandhi was planning to lift the Emergency, a home ministry committee, which importantly included IB joint director TV Rajeswar (who became its director, and then the Governor of West Bengal), argued for its continuation as "administratively desirable" and warned against the likely subversive activities of opposition party cadres. 

The IB, like the external spy agency RAW (Research and Analysis Wing of the Cabinet Secretariat), has always stood to the Right of elected governments. They follow the paranoid dictum, "it’s better to be safe than be sorry", and exaggerate threats to "national security", of which they are the self-appointed guardians. Governments find it hard to question their claims, even when unverifiable.

Both agencies long followed an unstated policy of not recruiting Muslims. With the advent of Pakistan-sponsored terrorism, and especially after the September 2001 attacks on the US, the Islamophobic edge in the IB’s counter-terrorism approach got strengthened.

This changed only very recently, and perhaps marginally, when Syed Asif Ibrahim was appointed the IB director last December. Equally pertinently, the IB has cultivated a mindset that is suspicious, if not contemptuous, of human rights.

The IB perfected the use of questionable means like torture and brutal methods of eliminating secessionists early on-in the Northeast from the 1950s on. With rising extremism in Punjab and Jammu & Kashmir in the 1980s, it gained unprecedented importance as India’s main domestic counter-terrorism agency. It has colluded with the police in extrajudicial killings in several states.

It is of the utmost importance that the IB be brought under proper Cabinet and public oversight-if necessary through the formation of a special Parliamentary committee on intelligence, which observes a degree of discretion where crucial national security considerations are involved. But this must not sacrifice genuine accountability or dilute strict compliance with the guidelines stipulated by the National Human Rights Commission regarding custodial deaths, with no exceptions allowed.

However, the extrajudicial execution menace will remain so long as we have policemen and "encounter specialists" who believe in shooting first and asking questions later. These elements invariably abuse their power, as countless cases from Daya Nayak, Praful Bhonsle, Pradip Sharma, Rajbir Singh and Vanzara prove. They must be systematically weeded out and exemplarily punished. 

Above all, our public and legal discourse must urgently move towards privileging human life and the highest respect for the rule of law-no matter what the provocation. It simply won’t do to argue, as some commentators do, that civil liberties can be subordinated to reasons of state because the fight against terrorism is an asymmetrical one in which "the enemy doesn’t play by the rules of the game"; state agencies cannot succeed if they are made to follow "rules applicable to common criminals".

Civil liberties are too valuable to be subordinated to reasons of state without undermining democracy. It’s specious to argue that "war is hell", or "all’s fair" in war. It’s not. Wars, even just ones-when waged against tyranny or aggression-must also be fought in a just manner, with scrupulous regard for non-combatant immunity, without disproportionate force, indiscriminate violence, or use of cruel or degrading methods. "Encounter" killings violate all these criteria.

Those who think summary killings were necessary to win against Khalistani militants in the 1980s don’t understand why the insurgency lost support-because of the militants’ own senseless violence. They also underrate the terrible cruelty visited upon ordinary civilians, exemplified by the thousands of unidentified bodies cremated en masse in district after district. 

It’s perverse to rationalise "controlled" killings or torture-without going down a slippery moral slope. Once the state stoops to torture, it’s liable to sink into tyranny. State tyranny can be far worse that the violence caused by terrorist groups, as the examples of Salwa Judum, Gujarat, Kashmir, Punjab and the Northeast show.

Many more people were killed in unjust wars in Iraq and Afghanistan than the number who died under Saddam Hussain or on 9/11 in the US. Tyranny, however "controlled", can never produce justice or lasting peace.

email: bidwai@bol.net.in