New Delhi, 8 February 2014

I had, on June 4 2013, made a detailed comment inviting attention ‘Should CBI uncover the IB’. India’s internal security is challenged by several cross-border and local modules. From Jihadi terror to Maoist insurgency we find a continuous challenge being faced by the Indian State. Intelligence and counter-insurgency are one of the most effective responses to deal with this challenge. These operations include the collection and dissemination of information, intercepts, intrusion into insurgency modules, financial temptations given to informers and busting of such modules. Our intelligence agencies have to carry out these operations in utmost secrecy. Covert operations are undertaken but never admitted. A large number of these operations are without the backing of statutory law, since intelligence agencies in India function only on the basis of internal procedures of the government. This is on account of larger public and national interest. Hopefully, as we mature as a democracy, these operations could be brought under the framework of law and then subjected to an element of limited Parliamentary scrutiny.

The intelligence agencies get information with regard to the proposed activity of terrorist module of which Ishrat Jehan was a part. This information is processed and disseminated. The module is busted and its operations are foiled. The fact that Ishrat was a part of Lashkar-e-Taiyyaba (LET) is evidenced by Jamaat-ud-Dawa (JUD) claiming through its Lahore based Ghazwa Times that its activist has been killed. Subsequently, David Headley in his interrogation by both the FBI and NIA admits to this operation. The Legal Attaché of the US Embassy in India has issued a document to the Intelligence Bureau in response to its queries further evidencing this fact.

When the alleged encounter of Ishrat Jehan and her associates took place, the UPA-I was already in power. In a public interest litigation filed in the Gujarat High Court by her parents, the Union government took a categorical stand that Ishrat was a LeT operative and the alleged encounter of June 15, 2004 was genuine. This was when Shri Shivraj Patil was the Home Minister. The change in the Home Ministry led a change in Government’s stand. Under Shri P. Chidambaram as the new Home Minister, the Home Ministry in its affidavit decides to wash its hands off from the encounter. It now starts cooperating with the petitioner for probing the entire operation. The political establishment had hoped that its other attempts having failed, probing this could be a case for implication of the political leaders of the Gujarat government.

After being investigated by an SIT set up by the Court the case is referred to the CBI for investigation. Among the officers associating with the investigation was a person who was selected by Ishrat’s parents who were petitioners. The SIT comprised of three persons, one of whom was the petitioner’s Nominee. A large number of policemen, named in the FIR, belonging to the Gujarat Police are arrested. Negotiations are held with them and a political bargain is struck. Chargesheet is not filed against them within 90 days; and they are given a benefit of default bail. Those who decided to turn witnesses are promised that they would be left out of the chargesheet even though some of them are present when the actual killing took place. Their own statements implicate them and yet they are neither accused nor approvers, they are mere witnesses. Their names were excluded from the first and second chargesheets as accused. This is a procedure unknown to law. Statements given by these persons are recorded under section 164 CrPC not in Ahmedabad but in a court in Mumbai. An accused cannot be a witness against a co-accused. He can only be an approver. Those present in the actual shootout are excluded from the list of the accused so that they can implicate others who were not even present in the shootout.

A feeble attempt is made to implicate the political leaders of Gujarat. A theory of white beard and black beard is concocted. But that is not evidence enough. The ire now turns towards the IB. Those who were responsible for evidence collection, busting the module , interrogation of the accused are all sought to be implicated. The terrorist credentials of the victims are sought to be retrospectively wiped out. Two charge sheets have now been presented to the court.

The alleged encounter took place when UPA-I was in power. Admittedly there is no evidence against the political leaders of Gujarat. The covert operations of the central Intelligence Bureau have been made the subject matter of a criminal law investigation. The source of information of the IB, the veracity of that information, the dissemination of that information, the manner of busting the module, the interrogation of the victims, the organization of logistical support in busting the module will all be a subject matter of criminal law trial. The ultimate wise man who was the Home Minister in 2009 undertook the operation with the idea of implicating Narendra Modi and Amit Shah. He has ended up implicating the IB, an agency of the UPA Government which during the tenure of the UPA is being accused of having engineered the fake encounter. The nature of the encounter would be adjudicated by the competent court. However, the damage done to India’s intelligence agencies and its ability to undertake covert operations is irreparable. In my Article of 4th June, 2013 I had written “Only Pakistan and LeT would have the last laugh. The myopic political regime in Delhi has not realized the significance of destroying the institutions. Harass the Gujarat Government even if it means destroying India’s security apparatus -The objective of the Congress Party is clear.”