Playing With Fire
In what is perhaps one of its most politicised and terribly lopsided investigations, the Central Bureau of Investigation (CBI) has “found” that Ishrat Jahan and three of her partners were killed in a fake encounter by the Gujarat Police, in connivance with the Intelligence Bureau (IB), in Gujarat in 2004. Given its highly questionable method in preparing the chargesheet in a Gujarat court on July 3, one is not sure whether ultimately the premier investigating agency will convince the judiciary in punishing the chragesheeted police officials in this case, but its actions have gladdened the hearts of its present political masters in the United Progressive Alliance (UPA) and the “secular left liberals” in the country. Going by the reactions of the central ministers and Congress leaders, the day is not far off when Gujarat Chief minister Narendra Modi, the principal villain behind this “fake encounter” as well as the other “fake encounter” involving Syed Sohrabuddin, his wife Kausar Bi and friend Prajapati in Gujarat, will be behind bars. They think that if Modi cannot be defeated politically, he can be tamed legally.
But then the fact remains that the CBI cannot be a dependable ally for the present government at the Centre. When ministers, including the Prime Minister, tell the Court in various corruption cases over the last 10 years that they are not responsible for the actions of their officials serving them, it lacks credibility when they argue that Modi is responsible for the actions of his officials. Secondly, the record of the CBI in solving the political cases in the country is terribly poor, and its overall record of actual convictions is in between 65 and 70 per cent, which, in comparison to its counterparts in other major democracies, is said to be not that good. Take, for instance, the CBI’s report card in securing conviction in defence cases since 2004. It really cuts a sorry figure. The agency has managed to get only one
conviction among the 22 defence cases that it has probed over the past nine years! Similarly, its record in cases involving politicians is equally pathetic, be it the Bofors case of the late 1980s or the Jain Hawala case of the 1990s or the demolition of Babri masjid case in 1992 or the disproportionate asset cases former Uttar Pradesh Chief Ministers Mulayam Singh Yadav and Mayawati.
As the fake encounters in Gujarat under Narendra Modi as Chief Minister have more to do with politics than to the criminal justice system in the country, it will be fair to question whether, given its poor conviction record, the CBI will be able to authenticate its inference or conclusion on these encounters in the Court (which includes Lower Court, High Court and ultimately the Supreme Court). And until and unless the chargesheeted are convicted, it will be jumping the gun to assassinate their characters, which some political parties and a section of the media are doing. After all, the law of the country says that the accused is innocent until convicted and it is under this principle of law that we see many chargesheeted politicians occupying senior ministerial positions, both at the Centre and in the States.
Interestingly, such has been the media and political hype in these encounters in Gujarat that nobody is bothering to highlight the criminal records of the diseased. On the contrary, the impression is being created that Sohrabuddin, Prajapati, Javed Sheikh, Jeesan Johar and Amjadali Rana were great patriots, comparable to Mahatma Gandhi and Jawaharlal Nehru and that giant statutes should be erected in their honour. But what is the reality? The CBI has not mentioned in its chargesheet, obviously under political pressure, that the diseased were hardened criminals. As veteran journalist Praveen Swami has written in FirstPost, there is an “inconvenient story” in Ishrat Jahan case that the CBI or the central government is avoiding to tell. And here I quote him:
“Early on the morning of 15 June 2004, Ishrat Jahan, Javed Sheikh, Zeeshan Johar and Amjad Ali Rana were shot dead on the road leading to the Kotarpur waterworks on the outskirts of Ahmedabad. KP Singh was at that time director of the Intelligence Bureau; Nehchal Sandhu, who is today deputy national security advisor, was then in charge of counter-terrorism operations; MK Narayanan, who is today West Bengal governor, was then advisor on internal security. And Manmohan Singh was Prime Minister, then as now.
“The first three, without doubt, would have known of the IB warning that went out to all states on 22 April 2004, warning of imminent attacks on top Hindu nationalist politicians, including LK Advani.
“Later, the IB’s Gujarat station would provide the Gujarat Police more detail, telling Ahmedabad’s police chief there were two Pakistani terrorists with Punjabi accents planning an attack, in coordination with a
“From accounts given to FirstPost by three separate intelligence sources, the IB’s operation had its genesis in February 2004, when the Jammu and Kashmir Police shot dead Poonch-based Lashkar operative Ehsan Illahi. Letters found on Illahi’s body led the police to an Ahmedabad-based lawyer. From there, the operation rolled on. There’s some reason to believe the Lashkar’s plot was penetrated. First Information Report 8 of 2004, filed by the Ahmedabad Police Crime Branch after the killing, records that the authorities knew of the imminent arrival of a blue Tata Indica carrying the victims, bearing the licence plate number MH02 JA4786suggesting the Intelligence Bureau had an informant on the inside.
“No one suggested that based on an intelligence input you should kill someone, ‘former Union Home Minister P Chidambaram said in 2009. That’s true, but it neatly dodges the question of what the UPA did when four terrorists whom its intelligence services were following ended up dead. The CBI hasn’t sought any answers, so far, from any of the people who can answer that question’.”
In fact, this case is one of the rare cases (see BOX) where the Indian intelligence acted in coordination
with a friendly foreign intelligence agency, the Federal Bureau of Investigation (FBI) of the Unites States and subsequently vindicated by the confessions of the Pakistani terrorist David Headley. It was only when the case got politicised that the then Union Home Minister changed the tack by saying inputs were “hearsay’!
Be that as it may, the fact, however, remains that fake Police encounters or non-judicial executions are always a serious issue. In genuine democracies, such encounters should have no place. If actually Ishrat Jahan, or for that matter anybody else, was a victim of fake encounter, then the laws of the country should ultimately prevail and the guilty must be punished. But then the fact remains that regrettably fake encounters as a phenomenon are taking place all over the country. And this being the case, by selectively targeting Gujarat, the “secularists” and their vested politician friends are indeed weakening the cause of a genuine fight against fake encounters. Because, by so doing, they are taking away the credibility factor away from the fight.
Dispassionately seen, Gujarat is one of the states where fake encounters are exceptions rather than rule. In the year 2007, the National Human Rights Commission (NHRC) displayed a list of 440 fake encounters from 2002 to 2007, and in this the share of Gujarat was just 5, almost the lowest. Uttar Pradesh topped the list with 231, followed by Rajasthan 33, Maharashtra 31, Delhi 26, Andhra Pradesh 22, Uttaranchal 19, Assam 12, Madhya Pradesh and Karnataka 10 each, Tamil Nadu 9, West Bengal 8, Bihar and Haryana 6 each.
According to a report in India Today, statistics in between 1993 to 2009 revealed that Uttar Pradesh, Bihar, Maharashtra, Andhra Pradesh were the top four states with the maximum number of fake encounter complaints, with 716 cases in Uttar Pradesh, 79 in Bihar and Congress-ruled Maharashtra and Andhra with 73 and 61 cases respectively. Similarly, when the NHRC recorded 369 cases of alleged fake encounters, from 2008-09 to June 2011, it was seen that the states with high number of cases were Uttar Pradesh (111), Manipur (60), West Bengal (23), Tamil Nadu (15) and Madhya Pradesh (15).
IS MANMOHAN SINGH AS GUILTY AS NARENDRA MODI?
The FBI had informed IB in early 2004 that Ishrat Jahan was an Islamist LeT suicide bomber, a ‘Fidayeen’ who wanted to assassinate Narendra Modi. Accordingly, the IB generated alert and coordinated with the Gujarat police, which, the CBI now says as connivance. According to CBI, it was IB which had arrested Jahan and her friends and then gave even some weapons to the Gujarat police to eliminate them.
Jahan was acknowledged by the Pakistan-based dreaded terrorist outfit Lashkar-e-Toiba (LeT) as its own. In fact, a report prepared by investigating officer in the Ishrat case, ACP Parixita Rathod, had submitted in the then POTA court, clarifying that Ishrat was with terrorists. Ishrat’s mother says Ishrat was kidnapped 4 days before she was encountered in Gujarat. But, surprisingly, no missing person’s report was filed. Even the Union government had initially substantiated Jahan’s terrorist links in the first affidavit. But things changed subsequently. Now the CBI is saying that the IB generated a fake alert with the purpose to kill. But the question still remains what would the then station head of the IB, Rajinder Kumar, have gained out of the fake report and killing of Ishrat Jahan
Interestingly, by calling it a joint operation, the CBI has made, consciously or by default, the Manmohan Singh government as answerable as the Modi government. After all, fighting terrorism is a joint responsibility of both the central and state governments. And, on the day of the encounter, the Manmohan Singh government was firmly in place at the Centre and Shivraj Patil was the Home Minister. The IB gives a daily report to the Home Minister and the National Security Advisor in the PMO. And invariably, copies of all important reports are also marked for the Prime Minister. That means if stretched to logical conclusion, in this case Manmohan Singh is as much guilty as Narendra Modi. Besides, Manmohan Singh is also guilty in allowing senior IB officer Rajinder Kumar, whom CBI considers to be the master brain behind the encounter, to rise in the IB hierarchy in last nine years of UPA rule!
What is more absurd in the latest CBI action is that the first affidavit filed on behalf of the Ministry of Home Affairs (MHA) had said that all four were terrorists and the three persons accompanying Ishrat Jahan were in constant touch with their Pakistani masters through satellite phones. The BJP is now raising these same issues. Party spokesperson Nirmala Sitaraman said, “this charge sheet underplays the role of the LeT and only serves to demoralise the security apparatus of the country in its fight against terror. As per the established practice, the IB, while giving the input to the Gujarat Police, would have shared it with the top functionaries in the government at the Centre, including the Prime Minister. I would like to know what was the response of the Central government then”.
In fact, it is first time in independent India’s history that essentially for political reasons the central government is playing a very dangerous game of allowing the CBI to fight another vital agency, the IB. The CBI is creating a situation where IB officers will now be unwilling to share any substantive information with the security agencies, thereby jeopardizing national security. And this is all the more sad that within intelligence circles, Kumar is considered to be a sincere officer who has never been seen to be establishing contacts with political leaders of either side.
Former Union Minister Subramanian Swamy has a point when he says, “Ishrat Jahan case is a clear testimony to the fact that Congress will sell this nation for minority votes. It will protect terrorists like Ishrat Jahan and punish patriotic officers who eliminate them. It will manipulate the system and compromise national security to stay in power”. In fact, there is a growing feeling all over the country that just because Jahan and her colleagues, or for that matter in the other encounter case involving Sohrabuddin in 2005, were Muslims, the cases are being communalised to a great extent by a section of our establishment, the goal being to garner minority votes.
In fact, Sohrabuddin’s criminality was underplayed and he being a victim of Modi was overplayed in the Gujarat assembly elections in 2007. None other than Congress president Sonia Gandhi charged Narendra Modi as “Mauth Ka Saudagar”. But the fact remains that Sohrabuddin was an underworld gangster who was involved in nearly two dozen serious criminal offences in states of Gujarat, Rajasthan, Madhya Pradesh and Maharashtra. He maintained transnational links with anti-India forces such as Dawood Ibrahim and Abdul Latif. He procured weapons and explosives from Pakistan and supplied them to various terrorist and anti-national groups. Around the time he was killed, the Rajasthan government had announced a reward on his head. In 1999, he had been detained under the National Security Act by the Madhya Pradesh government. In a 1994 case investigated by the Ahmedabad crime branch, he was co-accused along with Dawood Ibrahim and convicted for five years, for waging war against the Government of India, planning an attack on the Jagannath Rath Yatra in Orissa, and other offences under the IPC, Arms Act, etc. During the investigation, 24 AK-56 rifles, 27 hand grenades, 5250 cartridges, 81 magazines and more were seized from his family home in Madhya Pradesh. In 2004, a fourth crime was registered against him by the police of Kolhapur district in Maharashtra.
Obviously, all these governments were not led by the BJP. It is said that his encounter was coordinated by the then two BJP-led governments in Rajasthan and Gujarat. But what is conveniently forgotten that the then Congress government in Andhra Pradesh led by YS Rajasekara Reddy was also equally present in the picture. The Gujarat police probe in the Sohrabuddin case led by Geetha Johri, an honest police officer, showed that seven AP police officials, including two drivers, were involved in the offence; that one Kalmuddin, had invited the Sohrabuddin couple to Hyderabad; that after their stay Sohrabuddin couple boarded a bus to Sangli; that the AP and Gujarat police officials, acting in concert, intercepted the bus, disembarked the couple, took them in their vehicles; and that the caravan which included two Tata Sumo vehicles used by AP police reached Ahmedabad where the couple were killed.
However, things changed when the investigation case was shifted from the Gujarat CID to the CBI. As veteran columnist S Gurumurthy wrote: “Geetha Johri, who uncovered the fake encounter, arrested her own colleagues, had sought the co-operation of Balwinder Singh, the then Commissioner of Police at Hyderabad, for three purposes: one, to question the AP police officials who had assisted the Gujarat police; two, to trace the missing Vehicle Entry Register of the AP IPS Officers Mess for the period August 2005 to May 2006 that would identify the two Tata Sumo vehicles, their drivers and also AP officials who went in them all the way to Ahmedabad; three, to track down Kalimuddin, who hosted Sohrabuddin at Hyderabad. But Balwinder Singh would not co-operate. QED: the Congress was determined not to expose its role in the sin. See what it did instead. Who did it choose to head the CBI probe? Balwinder Singh! The very officer who shielded the AP police officials now heads the CBI to probe the role of the very AP Congress? Police! Shocked? It is just the beginning, with more shocks to come”.
If anything, all this underscores the fact that the CBI utterly lacks credibility in its investigations into the cases with heavy political undertones.
It may also be noted that Union Minister of State for Home RPN Singh had provided the Lok Sabha in March 2013 “State-wise details of the total 555 cases registered by the National Human Rights Commission (NHRC) of alleged fake encounters by police, defence and paramilitary forces during the period 2009-10 to 2012-13 (as on 15.2.13) in an Annexure. Out of above 555 cases, 144 cases have been solved and the remaining 411 are unsolved”. And going by this Annexure that provides statistics for alleged fake encounter deaths during three periods, 2009-2010, 2010-2011 and 2011-2012, Manipur and Uttar Pradesh saw the highest number of fake encounters in 2009-2010 while Gujarat had “ZERO”. During 2010-2011, Uttar Pradesh had a whopping 40 cases while Congress-ruled States Assam, Andhra Pradesh and Haryana had together 30 cases. In the 2011-2012 period, Uttar Pradesh once again topped the list. And as Shashi Shekhar, a leading commentator on Indian Politics and Policy Issues, rightly says, “the most damning of all facts shared by RPN Singh, the National Capital, New Delhi, had, across the three-year period and the first three months of 2013, a total of 10 fake encounter cases. This, despite having a Congress Government at the Centre, a Congress Government at the State level in Delhi, the Union Home Ministry being responsible for Policing in Delhi and every conceivable taxpayer-funded conscience-keeper from the NHRC to NCMC being in Delhi”.
Notably, the above facts are those given by the NHRC and the Union Government. If numerous Human Rights activists and media experts are to be believed, then there are many undisclosed encounters in Jammu and Kashmir and Northeastern states. But, such is the tenor of hate politics against Narendra Modi, which, in turn, is linked with the vote-bank politics that we are led to believe that Gujarat under Modi is synonymous with fake encounters. And secondly, just because those killed in these encounters happen to be Muslims, it is presumed that they were innocent and therefore given the status of “a martyr’.
LIGHTNING & THUNDER BUT NO RAIN
By P R Siddhartha
There has been blinding lightning by the CBI and the deafening thunder by the Congress Party loud-mouths, but there will be no rain at all to drown Narendra Modi in the terrorists’ encounter case. For months, the Central Bureau of Investigation brazenly conducted the massive campaign through the media, trying to brainwash millions of viewers that the Gujarat Chief Minister Narendra Modi was guilty of the prior information that the Gujarat police was about to do the 2004 encounter to kill the Pakistan-sponsored Lashkar-e-Toiba terrorists.
The Congress Party loud-mouths launched a shrill campaign to invoke hate and scorn against Narendra Modi, cursing him as the architect of the encounter case. Finally after the vicious campaign against Narendra Modi, the CBI does the huge U-turn. The CBI has not named Narendra Modi in the terrorists’ encounter charge-sheet. Also the CBI has not named Narendra Modi’s Minister of State for Home Amit Shah in the terrorists’ encounter charge-sheet.
Furthermore, the CBI has not named Rajendra Singh, the IPS Intelligence Bureau Officer, who saved Narendra Modi from being killed by the Pakistan terrorists, in the terrorists’ encounter charge-sheet. The CBI lightning and the Congress Party thunder have not brought about any cloud burst of rain to drown Narendra Modi.
On the other hand, the campaign against Narendra Modi by the CBI and the Congress Party has generated a huge wave of sympathy across India, for Narendra Modi. The overwhelming public mood has been that the scam-filled Manmohan Singh government is too sympathetic towards terrorists and too biased against political opponents, whom it cannot defeat in elections.
Now, the CBI’s failure to find any evidence, after spending public’s crores of rupees on conducting the campaign of accusation against Narendra Modi makes the CBI and the Congress Party more ridiculous in their attempts to stupidly terrorise Narendra Modi.
Four terrorists were set out to assassinate Narendra Modi. Two of them were from Pakistan–one a Pakistan recruit from Kerala, and the other was a woman Pakistani recruit from Maharashtra. The four terrorists were killed in the Gujarat police encounter. The Gujarat police says that it was an encounter to prevent terrorists from assassinating others.
However, the CBI is trying to prove, by spending India’s money on Pakistan terrorists, that the Pakistani terrorists and the Pakistan-sponsored terrorists were assassinated by the Gujarat police in an American-style encounter.
There are two views on handling terrorists: The pre-9/11 view and the post-9/11 view.
The Americans insisted on human rights for terrorists, as long as the terrorists were attacking countries other than the USA and killing innocent citizens other than the Americans. But the 9/11 terror attacks on the USA changed the entire softness against
The USA led the campaign to assassinate the terrorists, before they could assassinate anyone. The CIA and terrorist counter operations, with the knowledge of the President of the USA, made the daily updated list of terrorists worldwide and began assassinating them in countries around the globe.
The list of terrorists to be assassinated by the USA is kept in the President’s desk in the Oval Office in the White House. The list is replaced everyday, with the names of those assassinated deleted and the new names of terrorists added.
The American encounter teams fly into other countries without permission, enter houses, kill or kidnap the terrorists. The American encounter team enters countries around the globe killing terrorists in car-truck accidents by ramming the truck into the terrorist car.
The American encounter teams visit the homes of the terrorists in other countries and inject poison into the water, food, milk, bread in the kitchen, in the refrigerator and at the doorsteps, and in the medicines, toothpaste and tooth brush. The American encounter teams visit hospitals in various countries wherein terrorists are getting treatment and kill them by injecting them with poison or heart-brain attack injections. The American-style encounters have thus prevented the living of thousands of terrorists worldwide, who would have lived to kill many innocent ordinary Americans.
Terrorism is the war against the nation and it must be eliminated in the counter war called encounter. There must be no human rights for terrorists because they are not human. The killing of terrorists by the police in any form of encounter is perfectly good for the health of the nation.
The Americans are not shy of the American-style encounters to kill the terrorists, before the terrorists can kill anyone. The Americans are not at all apologetic about their American-style of anti-terrorism encounters.
The Americans do not waste public money on litigation and investigation against security-police-intelligence personnel involved in the killing of terrorists worldwide in anti-terrorist encounter killings.
The United States of America is proud of its encounters against terrorists and rewards the officers for killing the terrorists in encounters.
This being the case, why must India’s public money be spent on investigation of any encounter of terrorists? It is madness. It must be determined, if those killed in any police encounter are terrorists. If those killed in the encounter were terrorists or criminals, then the police must not be terrorised with litigation and investigation by spending crores of public money.
Terrorists and criminals must be encountered by law but if they are encountered in the American style, then it must be accepted as an act of war against terrorism.
IMMUNITY FOR ANTI-TERROR FORCES
There must be an all-party meeting on the India policy of encountering
terrorism. The meeting must discuss the policy of the war on terrorism. Thereafter, the Indian Parliament must discuss the policy of the American-style encounter of terrorists.
The Indian Parliament must pass a law creating immunity for all the armed forces, security forces, intelligence agencies, anti-terror forces, police and private security from any litigation and investigation on any encounter against terrorists and criminals. This nonsense of wasting Indian money on litigation and investigation against brave police officers, who
are fighting terrorism, must be put to a stop.
Terrorists who come to kill Narendra Modi, Sonia Gandhi, Rahul Gandhi, any political leader of India and ordinary citizens must be killed in American-style encounters before they can kill anyone.
Encounters against terrorists must be the declared Indian government’s anti-terrorism policy to kill terrorists before they can kill and to protect those who have killed the terrorists.
James Bond’s License To Kill and the worldwide versions of James Bond in real encounter life must always be hero-worshipped. India must stop all this lightning and thunder against officers who have done encounters to kill terrorists.
India must salute those who risk their lives to kill the terrorists in the encounters to kill the terrorists.
In more senses than one, police encounters are reflections of a complex phenomenon. While one must be aghast at every extrajudicial death, it is equally important not to overlook the facts that many a time the police deal with hardened criminals and become their victims as well. Besides, our legal and judicial architecture remains rooted in mid-nineteenth century concepts and enactments: it is frequently found wanting in delivering quick and effectual justice to cope with the current upsurge in militant and extremist violence. And then there are the typical and professional human rights activists in the country who do not find anything wrong with any terrorist and will go to every extent to exonerate them in courts of law. It is against this background that the frustrated police find it convenient to exterminate the hardened criminals rather than arresting and prosecuting them. No wonder why we see so many Bollywood movies on this theme.
In fact, as Ajit Doval, a former Director of IB, has written, the theme that that the rule of law is a means to an end and not an end in itself, often finds support in the jurisprudential principles of salus populi est suprema lex (the people’s welfare is the supreme law) and salus res publica est suprema lex (the safety of the nation is supreme law). According to him, the Supreme Court of India, in the case of D.K. Basu vs. State of West Bengal [1997 (1) SCC 416] accepted the validity of these two principles and characterised them as “not only important and relevant, but lying at the heart of the doctrine that welfare of an individual must yield to that of the community.”
THE GOM’S RECOMMENDATIONS ON THE CBI FUNCTIONING: A FARCE
By Arun Jaitley
The Law Minister of the UPA government along with Law Officers and officials of the PMO were virtually caught red handed in attempting to doctor the CBI status report in the coal block allocation scam. The Supreme Court expressed its annoyance at what the government and the CBI had done. It has now called upon the government to file an affidavit detailing the steps that the government intends to take in order to immunize the CBI from political interference. The weak-kneeded UPA government constituted a Group of Ministers to make appropriate recommendations with regard to the functioning of the CBI and the draft affidavit proposed to be filed before the Supreme Court. Media reports have now indicated that the Cabinet has approved the recommendations of the Group of Ministers. These recommendations included greater financial powers to the agency, a provision for time bound sanctions to investigate government officials, appointment of a Director by a collegium and the constitution of a panel of retired judges which will monitor investigations and ensure that there is no extraneous influence.
The government made it appear as though some earth shaking new decision had to be taken on basis of the recommendations of the Group of Ministers. The decision taken at the meeting of the Cabinet does not in any way immunise the CBI from political interference. The issue of CBI ‘s functioning was debated in both Houses of Parliament and was a subject matter of public debate on the draft Lokpal legislation. An essential part of the legislative exercise was to ensure the independence of CBI and how to immunise it from political interference. The Lok Sabha passed the Bill but the Rajya Sabha by majority insisted on certain meaningful amendments which resulted in the government getting the House adjourned. A Select Committee of the Rajya Sabha was constituted which worked for a reasonable period of time inviting public suggestions. On behalf of the Bharatiya Janata Party three of us, Shri Rajiv Pratap Rudy, Shri Bhupender Yadav and myself made the following suggestions with regard to the functioning of the CBI:-
“On the basis of the above we are of the opinion that considering the enormous amount of misuse of political clout the CBI has lost its credibility. It has therefore become important to correct this aberration. The control of CBI thus requires to be transferred from the Deptt. Of Personnel GOI to the Lokpal in relation to all corruption cases which are referred to Lokpal. Alternatively in order to maintain independence of CBI and enable it to get immunity from political interference, we make the following suggestions amongst others:-
The CBI will have two wings. Director CBI will head the entire organisation. Under him a separate Directorate of Prosecution should function. The Investigative Wing and Prosecution Wing of the CBI should act independently. The Director of CBI and Director of Prosecution should be appointed by a collegium comprising the Prime Minister, Leader of Opposition, Lok Sabha and Chairman of Lokpal.
Both the Director CBI and Director of Prosecution must have a fixed term. Both Director CBI and Director Prosecution shall not be considered for re-employment in government after retirement. The power of superintendence and direction of the CBI in relation to Lokpal referred cases must vest with the Lokpal. If an officer investigating a case is sought to be transferred for any reason whatsoever, the prior approval of Lokpal should be required.
The panel of advocates who appear for and advise the CBI should be independent of the government. They can be appointed by the Director Prosecution after obtaining prior approval of the Lokpal. From amongst the above suggestions the Select Committee accepted all the suggestions except one relating to non-appointment of the Director CBI and Director Prosecution after retirement in the government. The said recommendations were placed before the Cabinet on 31/1/2013 and were accepted subject to certain minor modifications. The Select Committee recommendations are a property of the House since the Committee is constituted by the house. The government or any member can only move an amendment to it. Thus, when the Supreme Court passed an order asking the government to outline the steps that it intends to take in order to immunise the CBI from political interference the government ought to have placed the near unanimous recommendations of the Parliamentary Select Committee to which even the UPA members had consented along with the additional note of the BJP where some extra suggestions were made to aid the object of securing fairness in the functioning of the CBI. The entire package of arrangement would have ensured the appointment of a Director by an independent process, separation of a Directorate of Prosecution which would function on an independent basis rather than just be an officer on deputation from the Law Ministry. It would have ensured a fixed term for these high offices; there would be no fear or favour inasmuch as senior officers of the CBI are concerned since besides enjoying a fixed tenure they would not be eligible for re-employment in the government. The power of superintendence and direction of the CBI would vest in the Lokpal with the Supreme Court being the appellate authority. Officers investigating sensitive cases would not be transferred without the permission of the Lokpal. The panel of advocates who appear and advise the CBI would be independent of government lawyers since there has been a considerable politicization in the appointment of government advocates and law officers. This was a recommendation of the Select Committee. It had been approved by the cabinet on January 31, 2013. Thus, when the Supreme Court asked the government to file an affidavit on the subject there was an existing decision which just had to be place before the Supreme Court. The Group of Minister’s recommendation and its approval by the Cabinet ignores all the above suggestions and now merely makes the CBI accountable to a panel of retired judges.
Who will select these retired judges to whom the CBI will be accountable? There are retired judges. Many are men of integrity wedded to judicial values. Yet, there are many who are perpetually seeking post retirement jobs. Retired judges are an unaccountable institution. Post retirement jobs dished out to many retired judges has almost become an entitlement. Pre retirement conduct at times has been influenced by the desire to get post a retirement job. I have repeatedly said that this trend of giving post retirement jobs to retiring judges requires to be discouraged if the independence of judiciary is to be strengthened. Government selected retired judges do not inspire confidence. A retired judge was recently appointed as a Member of the National Human Rights Commission inviting a note of dissent from both Smt. Sushma Swaraj and myself. His performance as a judge did not justify the post retirement appointment. The Government appeared extra keen to appoint him. Shri Lalu Prasad Yadav as Railway Minister appointed a retired Supreme Court judge as an inquiry officer under the Railways Act to probe the burning of Sabarmati Express coaches years after the actual incident. A retired judge disregarded the entire evidence in which the accused had been convicted and produced a report on how the Karsevaks by accident could have burnt the train from within. Yet another retired judge was asked to head the Prime Minister’s Working Group on the constitutional relationship between India and the State of Jammu & Kashmir. I was a Member of the Working Group. A report was produced in the name of the Working Group even without a meeting of the Working Group. The state of health of the judge when the report was published did not inspire confidence that the report had actually been authored by him. One cannot forget the learned judge who headed the Commission of Inquiry into the alleged demolition of the disputed structure at Ayodhya on 6th December, 1992. The Commission was converted into a self- perpetuating employment for 17 years. It produced a report which was not implementable and hence not implemented. Such a list is unending. To create an institutional mechanism of unaccountable retired judges appointed by the government to whom the CBI would be accountable will only result in the government perpetuating its political control over the CBI by removing itself from the scene and creating a proxy institution which will act on its behalf. This move should be opposed by one and all.
The UPA has ensured its longevity by misusing the CBI. The role of the CBI in investigating corruption cases against the leaders of SP and BSP had only ensured that these parties continue to support the UPA. The role of the CBI in framing charges against BJP leaders in Gujarat and Rajasthan has demonstrated that the CBI is acting in order to serve the dictates of the Party in power. The recent decision of the Union Cabinet based on GOM recommendations is a camouflage. It creates an illusion by removing the political executive and creating a proxy institution instead. The government’s decision is a remedy worse than the existing problem. Let the government place before the Supreme Court the recommendations of the Select Committee, the Cabinet decision of 31stJanuary, 2013 along with the suggestions of other political parties which would result in ensuring immunity of CBI from political interference.
(The writer is Leader of Opposition, Rajya Sabha)
Of course, while applying these principles there must be stringent checks and balances and there must be a healthy national discourse on what these checks and balances should be. But it is sheer insincerity and dishonesty to brand every police encounter as fake. All told, on average, over 1,200 policemen get killed every year grappling with terrorists, insurgents, underworld mafia and other anti-social elements. There are, of course, aberrations. There are incidents of fake encounters. But to blow them out of proportion and then politicise and communalise them is playing with fire and against national interest.
By Prakash Nanda