The Central Intelligence Bureau or Immunized Bureau
By R.B Sreekumar
21 June, 2013
Strangely the blatantly illegal act of Union Home Secretary convening a meeting of Director Central Intelligence Bureau (IB) and Director CBI reportedly for influencing CBI from doing anything affecting “image and morale” of IB personal in the investigation of fake encounter cases in Gujarat, did not evoke adequate discussion in the media. The Parliament enacted law, Criminal Procedure Code (CRPC) provided authority only to CBI to investigate criminal cases, under the supervision of the judiciary, which can only intervene to give directions to the Investigating Officer (IO). The Union Home Secretary has only administrative authority/ powers over CBI. The Administrative regulations empowering MHA to summon CBI cannot and will not supersede the efficacy and superiority of CRPC. So, per se, the act of Secretary, MHA is an offence under section 186 of Indian Penal Code (IPC) – “obstructing public servant in the discharge of his public function”. In case the CBI Director had altered the course of investigation or restrained the IO from taking any action, in compliance with MHA directives, he is culpable u/s 217 IPC – “public servant disobeying the direction of law with intent to save person from punishment”. As per CRPC the IO of a case should probe basing on the principle of his subjective satisfaction and judicious appreciation of evidence.
Chapter XII of CRPC delineating power of police officers to investigate offences provides adequate authority and even semi-judicial status (to issue summons, etc.) to police and so the IO is only accountable to the jurisdictional judicial authority. Under section 36 of the CRPC, the authority to supervise the work of the IO is given only to “Police Officers superior in the rank of an officer in charge of a police station”, who takes cognizance of an offence u/s 154 of the CRPC. High ranking functionaries of political and civil bureaucracy have no legal powers to meddle in the affairs of the investigation. But their such deviant actions are tolerated, allowed or ignored by police officers due to their own self-promoting careerist interests. Nevertheless, none can blame if police officers allow themselves to be influenced by unauthorized persons. State Home Department Officials and Ministers often make boastful, but intrinsically illegal statements about their plans of arresting or releasing somebody in India. These acts are contemptuously ridiculous.
The hue and cry made out by Director, IB and resource persons, friends of intelligence agency in media and intellectual circles aims at practically providing an armour of immunity from arrest and impunity from prosecution to IB personal allegedly accused for planning and execution of fake encounter of Ishrat Jahan and three others in Gujarat, in collaboration with Gujarat Police. This posture of Director IB is illegal, unethical and simply against the foundational principles of the Constitution of India and canons of the Rule of Law. The protagonists of blanket protection to IB people from legal action for their malicious acts argue about the dangers of erosion of morale and adverse ambiance under which IB men have to perform their functions for the internal security of our mother land. These friends of intelligence agencies, had conveniently ignored the denial of right to life and other fundamental rights to citizens who were victims of atrocities by Gujarat Police and IB staff. They, perhaps, want IB men to be given privileges provided by law to the President of India and Governors – protection from arrest and prosecution. They are not willing to wait for judicial scrutiny of charge sheet and trial through due process of law.
Many citizens may not be aware that our intelligence agencies – IB, RAW, etc. – irrespective of controversies regarding the professional merit of their output, enjoy total freedom from any auditing, monitoring and supervision from any agency outside their hierarchical over-viewing elite. Such a system was put into operation by the British for creating a set of blue eyed boys to spy on freedom fighters, without any apprehension over scrutiny of their work by independent agencies and accountability. As on today, in nearly 75 democratic nations in the world, like England, USA, France, Canada, Malaysia and so on, the intelligence agencies do work under specific laws and their charter of duties and powers are streamlined. To illustrate, intelligence agencies are given full authority to register cases, search premises, arrest and prosecute persons accused in cases relating to counter intelligence and counter espionage functions to block hostile designs of foreign countries. Strangely, IB had willingly taken up recently policing of immigration procedure in major airports, though their entry did not, reportedly, make any notable reduction in human trafficking, ex-filtration, infiltration and other fraudulent acts. These factors must have prompted our Vice-President, Hamid Ansari to propose for subjecting all Indian Intelligence Agencies under legislative control and system of accountability (Jan. 2010). Any well meaning citizen would feel that there is no merit or credit in insulating just the intelligence segment of governmental functions from well-oiled and structured monitoring mechanism even after 65 years of Indian independence.
Though IB has been working in most hazardous areas of terrorism, and militancy, like Jammu and Kashmir, North Eastern States, and left-wing extremism affected areas, it had never faced so much criticism for its acts of commission and omission as in Gujarat from the days of 2002 communal riots. Plenty are the alleged instances of misuse and abuse of Central IB unit in Gujarat by Gujarat State Government for implementation of the covert political agenda of the ruling party at the Centre and State – BJP – in those days. Media reported that the Joint Director, IB in Gujarat from 2001 to 2005, who is accused of active blamable role in conspiring to eliminate Ishrat Jhan and others through extra judicial killings, became friendly to Narendra Modi earlier, when the latter was in-charge of Hariyana and Punjab States as General Secretary of BJP and the former was supervising IB work in similar areas.
Evidence before the Justice Nanavati Commission enquiring to Gujarat riots has a lot of inputs about acts, allegedly intentional omission and commission by this IB Officer. This evidence is in public domain. These include, failure of IB to report about misdeeds of Gujarat contingent of karsevaks on their onward and return journey from Gujarat to Ayodhya; not informing in advance about possible attack on Hindus in Godhra railway station; (After the train fire incident IB had pressurized Gujarat State Director General of Police on 27-2-2002 forenoon to investigate the train fire incident as an international conspiracy against Hindus hatched in Pakistan); refusal to provide information received by IB from its agents who were moving along with karasevaks and had witnessed the actual process of train fire incident; failure to give advance intelligence about areas likely to be attacked by anti-Muslim Hindu militants on the bandh day on 28-2-2002; failure to report about the unabashed and visible subversion of the Criminal Justice System (CJS) by Gujarat Police and public prosecutors (Gujarat State Intelligence had reported this matter) after the riots, which had delayed and denied justice delivery to riot victim survivors, and so on.
Significantly, though many fake encounters were carried out by Gujarat Police, particularly Ahmedabad City Police Crime branch, headed by DIG Vanjara on IB’s intelligence reports, IB did not come out with any collateral information on the so called Jihadi militants killed by police, particularly on their associates, shelters, finances, communication system, weaponry and so on. Normally, even in case of a thief arrested or killed in police action intelligence agencies and police do trace out all facts and data related to him so that future security/police schemes can be designed suitably. But none of this plethora of delinquent acts by IB personal can be established for want of supervision of IB work by outside agencies in the Central Government. CBI probe in Ishrat Jahan case alone had uncovered IB’s alleged criminal role.
Media reports about assertion by Director, CBI on possession of substantial evidence about reprehensible guilt of IB officers in crimes of fake encounters. To counter this claim by CBI, IB and MHA spoke about terrorist links of those killed in encounters. Refreshingly, Gujarat High Court on 14-6-2002 had categorically directed the CBI to concentrate its probe on the background, course and aftermath of encounter killings and not on the criminal or even anti-national character of victims of fake encounters. Did IB forget that even a person imposed with death penalty could not be killed through extra judicial methods by police or Government ? Let us hope that saner wisdom will prevail upon the Government and its executive authorities to give CBI a free hand in the investigation of fake encounter cases and leave judgment on culpability of accused persons to judiciary. Already considerable sections of riot victim survivors and relations of those killed in fake encounters are highly disillusioned about the reported lukewarm approach of Central Government towards 2002 riot cases and extra judicial killings.
Though, there is total protection to all witnesses giving evidence to Judicial Commissions u/s 6 of the Commission of Enquiry Act, IB had avoided filing affidavit on 2002 Gujarat riots. But for saving its officers IB had filed an affidavit in the High Court of Gujarat through MHA in Ishrat Jahan case. Similarly, IB had given evidence before the Commissions which probed into Indira Gandhi and Rajiv Gandhi assassinations. Refusal to give evidence on Gujarat riots amounts to opportunistic irresponsibility by IB.
IB’s failure to report on the rise of Hindu militancy due to indoctrination of misguided Hindu youth by Sangh Parivar about Government’s so called soft approach to Jehadis and demonization of Muslim community had resulted in State Police units victimizing Muslim youth in cases of explosions in Malegon, Nanded (Mahashtra), Modasa (Gujarat), Mecca Masjid (Hyderabad), Ajmir Sharif (Rajasthan), and Samachauta Express train (Indo-Pak Border). Spreading of disaffection among personal in Defence forces had led to Army officers arranging explosives for Hindu extremists, to bomb Islamic shrines. This trend had escaped the IB radar, so no preventive action was taken by the local police. The country had witnessed a ping-pong of hurling of blame between IB and RAW soon after 26/11 Mumbai attack, regarding supply of advance intelligence. None can deny that except general alert notice about Pakistan planning guerilla attack through sea rote in Mumbai, there was no pin pointed real time, preventive advance intelligence and hence police could not secure targeted areas purposefully. Even while conceding for argument sake about claims of IB and RAW about supply of prior information of intelligence on 26/11 attack, the fact remains that they fail to report about inadequate and near-nil follow up action by police on intelligence warnings. Mere sending an alert report and thereafter going on a state of slumber is not the profile of any professional intelligence body.
The cover of secrecy is often serving as a carpet of immunity from penal action, accountability, professional acts of omission and commission and misuse of resources for tracking the political opponents of ruling parties, at the expense of the tax payer’s money. In mature democracies like UK and USA, political intelligence in the form of reporting on legitimate overt activities, is not in the charter of intelligence agencies. American president Richard Nixon had to resign for spying on Democratic Party Convention, through private intelligence, and not by CIA or FBI.
The need of the hour is to place Indian intelligence agencies also under the structured monitory system applicable to all other Government departments by incorporating special safeguards in the relevant context of national security. Firstly, the charter of agencies be legalized through a legislation. This would enable the monitory mechanisms to evaluate the output of agencies, without even delving into the sensitive details like economics of intelligence collection, technology applied, persons deployed, agents maintained and so on. It is quite far-fetched to think that an assessment of intelligence by the agencies about VIP security, major riots, terrorist acts and so on and the quantum of advance actionable real time information therein would be exploited by nations’ enemies within and outside, because the tools and human resources of agencies are not being scrutinized by supervisory mechanism. On the other hand, such a periodical exercise would throw a lot of food for thought and wisdom for better future performance.
The illusion of internal corrective system of agencies, taking care of detractors and non-performers is suicidal and counterproductive. Strangely, except one case of compulsory retirement of a Addl. Director (ADGP) ranking officer in IB, by the erstwhile Gujaral Government in 1990’s, for his closeness to Western interests, none has been found to have deviated from the straight and narrow path of IB since independence. Should we believe that foreign intelligence agencies are idle or have totally failed to get any “talent” spotted for serving their objectives in IB so far?
The traditional leadership in the agencies, not withstanding their eminence and brilliance, nurture a self righteous narcissistic infallibility syndrome, inhibiting them from detecting detractors and defaulters in the departments and recommending action against them to the Government, lest this will affect the organizations’ longstanding “good image”. A periodical institutionalized control system through legislative or specially constituted forum can only liberate the agencies from their eternal euphoria of immunity, being the sacred cows of the powers that be. Will India’s political elite muster sagacity and exhibit farsightedness to professionalize intelligence agencies by freeing them from collection of political intelligence and streamlining an effective supervisory system, in the spirit of the Apex Court observations for restoring efficiency and integrity of Indian police in the famous case of Prakash Singh vs. Union of India? Status quoism by preserving the vestiges of colonial feudalism will never take India to the deserving heights of a modern nation. If no curative measures are taken, unscrupulous self serving officers will continue to indulge in misadventures as witnessed in case of fake encounters in Gujarat.
Unlike intelligence agencies of modern democratic countries IB holds on to the obscurantist medievalism by refusing to declassify its records of even pre-independence days. Why should we be irritated about exposure of the misdeeds of our colonial masters ? There should be a public outcry to fix up a period of 25 or 30 years for preservation of IB reports and older documents should be revealed to the citizens.
The compendium of ancient Tamil wisdom – Tirukkural by Saint Tiruvalluvar (1st Century AD) deemed that “Verily the two eyes of a Ruler are espionage and celebrated code of laws” – kural No. 581, chapter 59, “on spying”. India is lacking that eye – law for disciplining spies. Let us design these urgently.
R. B Sreekumar is Former DGP, Gujarat
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