Wednesday, January 27, 2016

Clean Chit to ex-Gujarat IPS officer Rahul Sharma: Central Administrative Tribunal

CAT declares the charge sheet against Rahul Sharma by the Gujarat home department to be an action “tainted by mischief and coloured by malafide” even as the Gujarat Home department issues one more notice against him..


Disregarding and unmindful of a severe reprimand from the Central Administrative Tribunal (CAT) that quashed the charge sheet filed by the Gujarat state home department against Rahul Sharma as “tainted by mischief” and “coloured by malafide”, the home department has issued a fresh show cause notice against him asking him to explain why action should not be taken against him for making “unnecessary” payment of a little over Rs 3,000 to his driver and gunman.

Gujarat has shown a peculiar tendency to target all those officers who showed a modicum of independence in the handling of the 2002 communal carnage.  The mis-handling of the violence that lasted close to three months from February 27 - May 6, 2002, has drawn sharp criticisms from Constitutional bodies like the National Human Rights Commission (NHRC), the Central Election Commission (CEC) and thereafter even the Supreme Court of India. Sharma was charge sheeted in January 2011, while the investigations into the Zakia Jafri case were still being conducted by the Special Investigation Team (SIT), soon after he had met the Amicus Curaiae, Raju Ramachandran. The Zakia Jafri criminal complaint seeks to prosecute those in positions of power, politically and administratively, for acts of commission and omission in the handling of the violence in 2002. The matter is presently being heard in the Gujarat High Court.

Narendra Modi was chief minister of the state at the time. Other officers from the Gujarat cadre who have drawn the consistent ire of the Modi regime have been former director general of police, RB Sreekumar and Sanjiv Bhatt a 1989 batch officer. All three have been targeted because of their resolve to ensure that their interventions in 2002 and thereafter were in accordance with the law and the Indian Constitution.

In a significant and speaking order delivered by Dr KB Suresh and KN Shrivastava, the Central Administrative Tribunal (CAT), had just five days ago, on January 22, 2016 declared that the charge sheet against Rahul Sharma “is tainted by mischief, mala fides and malice and coloured by arbitrariness, illegality and designed to defeat proximate and pertinent matters blessed by constitutional compulsion and designed as an engine of oppression. ” The motive behind the issuance of the charge sheet was to suppress the mobile tracking records in the CD which in turn was to benefit the actual perpetrators of brutal and violent crimes through which hundreds of innocents died a needless and violent death. 

The entire text of the Order can be read here.

The Gujarat state has been severely pulled up by the order of the CAT (January 22, 2016).

Unmindful of this, the Gujarat home department, issued a fresh notice against him. This is a year after Sharma’s retirement. The notice, according to a Home Department official, was issued on January 12, days before the Central Administrative Tribunal quashed the charge sheet against him.

In the notice, Sharma, now a practising lawyer, has been asked to explain why there should not be any action against him for making “unnecessary” payment of a little over Rs 3000 to his driver and gunman as dearness and travel allowances. The show cause notice, has also sought explanation from Sharma over “three months’ delay in payment for using government vehicle for personal trip”.

The 47 page order of the CAT deals substantially with the questions of law raised by the charge sheet. Essentially the charge sheet was related to the disclosure of the CDs by Sharma to the Nanavati-Shah-Mehta Commission. This CD that contained over 5 lakh phone call records (Ahmedabad and Godhra) from February 28 to Match 4, 2002 played a key role in establishing the location and roles of the accused in the 2002 post-Godhra massacres.

The state of Gujarat tried, factitiously to use Section 6 of the Commission of Inquiry Act to claim privilege and protection for the disclosures contained in the CD.

The charge sheet against Rahul Sharma “is tainted by mischief, mala fides and malice and coloured by arbitrariness, illegality and designed to defeat proximate and pertinent matters blessed by constitutional compulsion and designed as an engine of oppression.

Section 6 of the Commission of Inquiry Act, 1952, relates to the Statements made by persons to the Commission. It states that, “No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement. Provided that the statement- a) is made in reply to a question which he is required by the Commission to answer, or b) Is relevant to the subject matter of the inquiry.

The CAT, in its Order has observed that  not only are the provisos of section 6 met but Rahul Sharma, while deposing before the Nanavati Commission (2004) produced the CD in direct answer to a question. Further, the CAT Order states that “the CD was produced in answer to the question and doubtlessly, the CDs and the mobile track records are absolutely relevant to the subject matter of enquiry and Commission itself has made use of it and required the service providers to provide the information. The State also cannot question its relevance because it has formed a Committee to examine the CDs and its contents and requested for a copy, which is would not have done, had it not been relevant. Therefore, under every Parameter, CDs are very relevant in the enquiry under the Commission.”

The CAT Order refers to an earlier case that set precedents on the scope of Section 6 and the Commission of Inquiry Act. This is the Ram Krishna Dalmia vs. S.R. Tendulekar case (AIR 1958 SC 538), in which the Supreme Court has held that the statement of a witness before a Commission cannot be used for any civil or criminal proceedings except in a proceeding for giving false evidence in a Commission.  

The CAT Order states that, “If we extend our enquiry a little more further, nothing prevented the State from claiming the fabrication of documents if it had a case following its examination by its own Forensic Science Laboratory that a fabricated evidence had been tendered by the Commissions process, the stipulation under Sections 193-195 of Cr. PC could have been adverted to by the State Govt. at that time itself and having not done so, the only presumption available is that (1) the CD is genuine (2) the CD is relevant (3) it is placed before the Commission during the cross examination for which the applicant had been legitimately and legally summoned and through the process of follow up action of the Commission, the relevance of compact Disks, as relevant is set at naught.”

Seven years ago, on September 18, 2009, the Justice Nanavati Commission of Inquiry dealt with the objection of the Government of Gujarat. The objections of the state were on similar legal grounds but the Commission had held in Rahul Sharma's favour. In its Order the Nanavati Commission had stated that:

“The genuineness and authenticity of the data contained in those CDs has been questioned by the State Government. That apart, the evidence gathered as regards possession of the original CDs is inconsistent. If it is found that the original CDs had remained with Shri Rahul Sharma and were not handed over to the Crime Branch of the Police Commissioner’s Office, then a question would arise why the original CDs have been withheld by Shri Rahul Sharma. Production of CDs by Shri Rahul Sharma while being cross examined by JSM (Jan Sangharsh Manch) and not earlier has raised some doubt about his evidence as that of an independent and disinterested person. 

Though the Government has questioned the credibility of Shri Rahul Sharma and challenged genuineness and authenticity of the data contained in those CDs and has submitted that as the said data does not in any manner suggest the nature of conversation between those holders of the mobile phones, the said data should be ignored completely, the Commission has not accepted that submission in toto, in view of the scope and nature of inquiry this Commission has to make. 

Though it does not justify issuing summons to the persons who are alleged to be the owners of those telephones, the data if found not manipulated, is likely to help this Commission in finding out the truth about involvement of those persons in the incidents of violence against the minority community. After considering all the relevant aspects of this piece of evidence, the Commission thinks it fit, at this stage, to find out from the officers who were attached to the Chief Minister’s office in different capacities, if those telephones belongs to them and if they had talked to those persons during those days.”

Gujarat has shown a peculiar tendency to target all those officers who showed a modicum of independence in the handling of the 2002 communal carnage that had drawn sharp criticisms from Constitutional bodies like the National Human Rights Commission (NHRC), the Central Election Commission (CEC) and thereafter even the Supreme Court of India.

Hence the CAT Order, concludes, “   Therefore, the Commission itself thought it fit that by utilising the CD, the truth about involvement of those persons in the incidents of violence can be found out and also to find out from the officers who were attached to the Chief Minister’s office in different capacities, if those telephones belonged to them and if they had talked to those persons during those days. Therefore, the Commission had attached utmost importance to the matrix of the CDs and now that the second limb of the proviso to Section 6 of the Commissions of Inquiry Act is inevitably met. Therefore, having found that in the normal circumstances it has to be presumed and assumed that the first respondent and its officers had opportunities to be the custodian of the matrix of the CDs and its analysis and yet had not acted on it effectively, it will refer to gross failure in governance mechanism.

“In Associated Provincial Picture Houses Limited vs. Wednesbury Corporation, reported in [1948] 1 King Bench at 229, “the Court is entitled to investigate the action of the authorities with a view to see whether they have taken into account matters which ought not to have been taken into account or conversely have refused to take into account or neglected to take into account matters which they ought to take into account. In addition, if the outcome is so unreasonable that no reasonable authority could ever come to such a conclusion, Court can intervene.” Therefore the principles of Wednesbury principles would indicate that the State ought to have adopted methods which would satisfy these elements:

  1. The anxiety of the State should be the apprehension of correct accused and would have therefore, at the earliest point of obtaining the information about the geographic presence of accused would and should have immediately made use of it.
  2. Once the State comes to a finding that the method exists, whether it be 2002 or in 2004 or in 2011 or in 2015, the answer of the State would be in compliance with the constitutional oath pledging to keep aloft the fair and while flag of good governance unsullied. This would be reflected in its anxiety to act on the track records and effective culmination of more than 50 odd investigations or if necessary, reinvestigation so that justice would prevail at least now.
  3. But the current direction of the act of government seems to be oppressive in nature as it seems to suppress and oppose the apparent methodology for fair resolution available logically to it in the track record of the CD, but charge sheeting of the applicant for deposing about the CD would have an effect of preventing honest officers from taking appropriate actions as canvassed by law.
  4. In the Indian constitutional premise, no government or authority can be an engine of oppression.”
The Order of the Central Administrative Tribunal is clear and conclusive. It is a critical Order for any whistle-blower that seeks to uphold the Indian Constitution and due process of law. The state of Gujarat has used its vast machinery and resources to singularly target those individuals and organisations in and out of government, who have been concerned with pursuing justice for the survivors of 2002.  The Order of the CAT re affirms the principles contained within the Indian Constitution.

References:
  1. Truth and the Nanavati Commission https://www.sabrangindia.in/sabrangthemes/gujarat--2002-2007-genocide-aftermath-part-II
  2. Salute to a Serving Officer https://www.sabrangindia.in/sabrangthemes/gujarat--2002-2007-genocide-aftermath-part-II

see also