A year or so ago, Rajinder Kumar, who was posted as a Joint Director of the Intelligence Bureau in Ahmedabad when alleged Lashkar-e-Taiba operative Ishrat Jahan was shot dead by the police in 2004, scoffed about the Central Bureau of Investigation chargesheet against him and three colleagues. It wasn’t even worth the paper it was printed on, he said, and claimed that with the entire security establishment solidly backing him, he was confident of an acquittal even if put on trial.

The encounter and after

College student Ishrat Jahan and three of her colleagues were killed on on June 15, 2004, by DG Vanzara, the head of the Gujarat Crime Branch team while they were allegedly on their way from Mumbai to Ahmedabad  to murder Narendra Modi, who was then the state's chief minister. The police contended that upon being accosted, the alleged terrorists opened fire. Vanzara and his men fired in self–defence and managed to neutralise all four of the attackers, the police contended. They claimed to have recovered a cache of arms and ammunition from the car in which Jahan and her companions were travelling.

The circumstances of Jahan’s death have continued to dog Narendra Modi and his aide Amit Shah, especially after a report leaked in July 2013  suggested that Vanzara had dropped cryptic hints about their involvement in the killings.

Shorn of the polarising politics around it, the Ishrat Jahan case is essentially about accountability. Should police and intelligence personnel be allowed to falsely implicate and kill innocents and get away with it? Should they be permitted to evade the courts ?

On June 9, the Ministry of Home Affairs declined to grant the sanction which is required to prosecute policemen. Initially, even the Central Bureau of Investigation was unwilling to bring charges against Rajinder Kumar. But made it up with a supplementary charge sheet in which the intelligence officer was charged with murder and criminal conspiracy and the three colleagues were charged with conspiracy, kidnapping, illegal confinement, and offences under the Arms Act.

The home ministry has not disclosed in detail its reasons for refusing sanction, but media reports indicate that the evidence was insufficient to allow these four intelligence officers to be put on trial, even if the charges against them were grievous. In 2013, before the Narendra Modi government came to power, it had taken the pretty much the same stance when it challenging the CBI. It argued that the officers were protected by Section 197 of the Code of Criminal Procedure, which requires government sanction before public servants can be prosecuted for actions taken during the course of carrying out their official duties.

Whether the accused and their accomplices were guilty, and who all were involved (and the degrees of their culpability, if any) is for the courts to decide. But the home ministry's insistence upon the letter of the law to insulate some of the accused from trial indicates a particular cynicism. That’s why this provision, and cases in which courts have allowed its manipulation, requires to be questioned.

Protective judges

When agents of the state indulge in serious crimes and violation of fundamental rights, the judiciary is the only redress available to a citizen. Since what is at stake here is the violation of the right to life, no less, the judges have a higher responsibility to ensure that this impunity isn’t allowed to be institutionalised as a tool or policy measure. The surest way to do that would be to interpret Section 197 in a manner which explicitly bars custodial torture and staged encounters from being included within the ambit of “official duty.” Unfortunately, the courts have tended to lean more on the side of policemen, and have desisted from issuing an authoritative judgement that would make for a secure precedent.

In 1955, a constitution bench of five judges had occasion to set down necessary ground rules, but didn’t. The case was about allegations of custodial torture by policemen who had gone to conduct a raid. The government has refused sanction, and the court agreed, saying that if there was a reasonable nexus between the exercise of force as permitted by law, and the allegations of wrongdoing, then sanction must be sought. In other words, instead of coming down strongly against the police’s illegal actions and rights violations, the judges upheld the government’s claim of being the sole arbiter. It was not only an abdication of the judiciary’s role, but also a questionable decision of ceding power to the state.

The most recent, and egregious case of shielding policemen whose culpability is not in doubt, comes from the Bombay High Court. In December 2002, 27-year-old software engineer Khwaja Yunus was abducted by a Mumbai Police’s Crime Intelligence Unit team led by famous encounter specialist Sachin Vaze. Within 16 days, the police announced that Yunus had escaped from custody and disappeared. His distraught father knocked the doors of the Bombay High Court, and found, after four years, that he had been tortured and killed in custody. After ten years, in 2012, the court delivered its judgement in the case. An investigation revealed that 14 policemen were involved in this elaborate crime, but the sanction for prosecution was given only for four of them – none of them a senior-ranking officer.

The Bombay High Court, in its ruling on April 10, 2012, found nothing wrong with this. In fact, it cited another ruling from the same court to hold that prosecuting high-ranking policemen involved in “sensitive” operations would deal a big blow to their morale and that it was the government’s duty to do everything for protecting the “honest and dare-devil” officers who were always putting their lives on the line for the sake of society and country. Vaze, the kingpin of the operation, suffered only temporary suspension, got away with murder, and was also honoured with promotions.

With these precedents, it isn’t difficult to ascertain the source of Rajinder Kumar’s braggadocio. He, and others accused of similar and more heinous encounters, are confident in the belief that even if an honest government decides to make them face trial, the apex court is quite likely to bail them out.

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