Thursday, June 16, 2016

AJOY ASHIRWAD MAHAPRASHASTA - Ishrat Jahan: After the Fake Encounter, a ‘Phoney’ Probe

 As long as they are not found, the ‘missing documents’ will allow the BJP to turn what is a straightforward case of custodial murder into a political football

NB: If the facts reported by the Indian Express are true, what has transpired is the blatant subversion of the criminal justice system by a senior official in the Home Ministry. This is a disgrace to the country; but in tune with the behaviour of this government for many months - see some of the links below. Our opinion-makers can talk all they want about 'development' and 'growth', but the elephant in the drawing room is the brutal attempt by the Sangh Parivar to do away with the distinction between lawful and unlawful violence. The recent appearance of one of the fake encounter accused in the company of the RSS leader shows that they wish to habituate us to controlled mobs and arbitrary killings by the police. This has become so shameless that even a respected retired police officer has denounced the governments nefarious machinations. We are witness to a creeping coup taking place in full light of day - all that the government needs now is our complicity and silence. DS

B K Prasad, the Union Home Ministry official who headed the probe into the “missing documents” in the Ishrat Jahan encounter case, not only told a witness the questions he would ask but also suggested to him what answers he should give — that he had not seen any of the documents. This coaching of a witness by the man heading the investigation puts a question mark on the integrity of the probe announced in Lok Sabha by Union Home Minister Rajnath Singh on March 10.

New Delhi: If there is one case that exposes the fragility of Indian democracy in recent times, it is the killing of Ishrat Jahan in 2004. Both the Bharatiya Janata Party and the Congress have been at loggerheads over the killing of the young teenaged woman from Maharashtra, who at different points of time after her death has been branded a Lashkar-e-Tayyaba operative and an innocent victim of a fake encounter engineered by the Gujarat police on the orders of the BJP state government.

Human rights activists have decried her killing as a fake encounter; the Congress’s flip-flop – initially calling her a terrorist and then a victim of a fake encounter – has triggered suspicion over its intentions. The BJP, quite naturally, has been the only party to support the Gujarat government’s action, given the fact that party president Amit Shah and Prime Minister Narendra Modi, the chief minister of Gujarat at the time of Ishrat’s killing, have directly or indirectly been implicated in the case since the probe began.

At no point of time has the probe functioned in a transparent manner. Depending on their political agenda, officials and politicians have leaked selective information about the case to establish their views, leading to highly polarised and uninformed opinions on the matter. This opacity showed of yet again when a senior home ministry official, B.K. Prasad, who headed an official probe into the case documents that have gone missing, was captured on tape by an Indian Express reporter trying to doctor his own investigation. Prasad retired from service after his probe began but has been given an extension.

The opposition has long attacked the BJP for doing its best to ensure the case – which has already led to the framing of abduction and murder charges by the Central Bureau of  Investigation – never gets to court. Forced to respond to the opposition’s attack, Union home minister Rajnath Singh created a furore in the Lok Sabha in March, when he said that five important documents had disappeared from the home ministry records and blamed the previous UPA government for this. Singh instituted a probe, which Prasad headed. At that time, most BJP leaders questioned the Congress’s conduct in the matter and alleged that it tried to falsely frame the BJP and Gujarat police for political gains.

It is a different matter that the missing documents have no bearing on the criminal case, which is about the custodial killing of Ishrat Jahan. The state is obliged to prosecute those charged regardless of whether there is evidence suggesting she was connected to the LeT or not.

Either way, the tables have now turned. The BJP will have a lot to answer for. Prasad, who has also been criticised by civil society groups for clamping down on dissenting NGOs by slapping allegedly false charges of violating the Foreign Contribution Regulation Act, submitted an inconclusive report stating that the missing files may have been deliberately removed or unintentionally misplaced. However, the fact that he has been caught coaching at least one of the witnesses to deny any knowledge of the missing papers not only delegitimises the probe but also suggests Prasad was acting to a political script. That the BJP has never been enthusiastic about opening the can of worms that Ishrat’s case has now become was already known. But the way it has tried to directly manipulate the probe and influence the investigative agencies in the last few months points towards deep-seated structural corruption in the government machinery. The BJP in power today has clearly forgotten its campaign against the UPA government’s attempts to turn the CBI into a ‘caged parrot’.

Though they are not relevant to the murder case, the significance of the missing documents lies in the fact that they detail the exchange between the the then home minister  P. Chidambaram, home secretary G.K. Pillai and former attorney general G.E. Vahanvati, who passed away two years ago. The trail of letters and draft affidavits is of particular importance as they document how – and possibly why –  the Congress shifted its stand from originally branding Ishrat a terrorist to stating she was a victim of a fake encounter. The flip-flop was preceded by metropolitan magistrate S.P. Tamang’s report that accused the Gujarat police of a fake encounter. The missing papers also apparently include the second affidavit filed by the home ministry during UPA rule, in which it said it had no evidence to sustain the charge that Ishrat was a terrorist.

Even 12 years after Ishrat’s killing, the case is still in limbo, despite an SIT probe and a magistrate’s report implicating the Gujarat police. As long as they are not found, the ‘missing documents’ will allow the BJP to turn what is a straightforward case of custodial murder into a political football that can be kicked around to discredit the Congress and divert attention away from the original crime.

The question  the BJP will have to answer is why it had to manipulate the probe into the missing papers if it was certain the Congress’s second affidavit was false and politically motivated. After all, an honest probe would have revealed any misconduct by the Congress and the UPA – a scenario from which the BJP would have immensely benefitted both electorally and politically.

Chidambaram hits out: Predictably, the tainted probe has infused confidence in the Congress’s ranks. Chidambaram has already said that he stands vindicated. In a statement, he said:

“The news report published in the Indian Express today (16 June 2016) comprehensively exposes the fake controversy created by the NDA government on the two affidavits filed by the Central government in the Ishrat Jahan case. The Indian Express report completely vindicates the position that I had taken on the two affidavits. The first affidavit (6 August 2009) disclosed the “intelligence inputs” that had been shared by the central government with the state government. Judge Tamang in his report (7 September 2009) found that Ishrat Jahan and three others had been killed in a fake encounter. The report caused an uproar in Gujarat and elsewhere. The first affidavit was misinterpreted and misused to defend the encounter. It was, therefore, necessary to clarify the first affidavit. Hence, a ‘further affidavit’ was filed (29 September 2009) clarifying that intelligence inputs “do not constitute conclusive proof and it is for the state government and the state police to act on such inputs.”

The contents of the ‘further affidavit’ (especially paras 2 and 5) are absolutely clear and correct. It is unfortunate that most people who commented on the matter had not cared to read the ‘further affidavit’. The five “missing” documents completely vindicate the position I had taken. The sequence of events conclusively establish that we had acted in a totally transparent manner. The draft of the ‘further affidavit’ was vetted by the attorney general, the highest law officer of the country, before it was filed. The file passed through the hands of the home secretary at least 3 or 4 times. Ultimately, the ‘further affidavit’ was filed in court on the orders of the home secretary. Of course, I take full responsibility for filing the ‘further affidavit’ which was absolutely the correct thing to do.

The moral of the story is that even a doctored report (of the inquiry officer) cannot hide the truth. The real issue is whether Ishrat Jahan and three others were killed in a genuine encounter or a fake encounter. Only the trial of the case, pending since July 2013, will bring out the truth.”

Chidambaram also took a dig at the BJP and its role in the inordinate delay in the probe. The criticism is not off the mark as there has been absolutely no progress in the case after February 2014, when the UPA was in power. The CBI had, in its chargesheet, called the encounter fake. It had named top Gujarat police officers, including Gujarat’s director general of police P.P. Pandey and retired officer D.G. Vanzara. Calling it a joint operation by the Intelligence Bureau and Gujarat police, it had also named some IB officers including its special director, Rajendra Kumar, who has since retired.

Jaising sees wider pattern: The blatant manipulation of the probe has also alarmed members of civil society, some of whom have raised important questions. “Should retired officials given a specific extension to probe, be appointed to conduct enquiries into the functioning of the ministry? Can the rule of law be manipulated by an official serving or retired to suit political ends?” asks noted lawyer Indira Jaising of the Lawyers Collective. Her organisation is one of the NGOs that has faced the government’s wrath for its dissenting voice against some of its policies.

Jaising says, “B.K. Prasad is the same person who had conducted the enquiry and had taken the decision to suspend the registration of the Lawyers Collective. The strategy adopted in the case of Lawyers Collective was the same, that is, first a political decision is taken to fix someone and then an enquiry is conducted to justify the political decision. I had lodged a complaint against B.K. Prasad with the home minister and the home secretary that he was leaking false information to the press about alleged violation of the law but no action was taken against him. He is also the same person against whom another home ministry official made a complaint of blackmailing.”

With its credibility under attack, the BJP-led government will have lot of answering to do in the next few days. But the political tug-of-war that the corrupt probe has set off may not end soon. As Ishrat’s mother, Shamima Kausar – whose petition triggered a quest for justice that is now in its twelfth year –  continues to wait for the truth, perhaps this latest scandal will speed up the wheels of justice

see also

RSS men attacked us, police forced us to forego legal action, say Sonepat Dalits