And What Of Those Bullet-Sized Holes In The Narrative?

In the wise words of the German philosopher Nietzsche, there are no facts in politics, only interpretations. Last week, just as a perpetually outraged nation had finished interpreting a glorious chapter on ‘nationalism’ comprising fake tweets, photoshopped pictures, doctored videos and false statements, the tuition masters were readying a chapter on ‘terrorism’, this one built on manual changes made to documents, for interpretation. Uniting the two chapters was a common strand: Pakistan.

If the first chapter was aimed at showing up students and teachers  of India’s finest liberal arts institution as “anti-national”—and scaring their brethren across the country into silence—the second is aimed at further shaming a 19-year-old girl who has been dead for 12 years. If the first chapter was co-authored by ministers, policemen, mediamen and academicians owing allegiance to those in power, the second is being written by former bureaucrats no longer owing allegiance to those who were in power.

Ishrat Jahan, a BSc student from Guru Nanak Khalsa college, Mumbai, might never have thought of JNU. But the ren­ewed attempt by the Modi government to paint her as a terrorist, allegedly on her way to kill him in 2004, when he was Gujarat CM, should surely interest some JNU scholar, who might want to learn at precisely what moment, in a liberal democracy, does it become legal to kill even a terrorist in cold blood. As the tale of the Congress-yukt UPA government’s two affidavits of 2009—one linking her to the Lashkar-e-Toiba and the other scratching out such a reference—played out, it seemed to validate widely held perceptions. But, as Nietzsche predicted, few had time for the most crucial questions:

• How did the change in the two affidavits influence a Gujarat High Court-appointed Special Investigation Team (SIT) and the Central Bureau of Invetigation (CBI) to arrive at the same conclusion in 2011 and 2013, respectively, that Ishrat Jahan was killed in a fake encounter?

• And, more importantly, why has the trial of the policemen found guilty in the fake encounter yet to commence despite the CBI having filed the chargesheet in court way back in July 2013?

With his home state Tamil Nadu headed for the polls, and with the Sangh parivar’s known antipathy for P. Chidambaram, the spotlight quickly swung on the former Union home minister. “It’s a very grave matter when the home minister is accused of dictating an affidavit without any input from the ministry,” argued telecom minister Ravi Shankar Prasad, a former law minister and himself a lawyer. But asked to point out what specifically he had found objectionable in the second affidavit, he sought time to study it.

The Centre filed an affidavit in August 2009 and had objected to the CBI inquiry demanded by Ishrat’s mother and the father of Pranesh Pillai alias Javed Sheikh (see boxes), who too was killed in the encounter along with two others. The very next month, a supplementary affidavit by the government made, inter alia, the following points: the Centre routinely shared intelligence inputs with states; inte­lligence inputs were not ‘conclusive evidence’; the contents of paragraph 8 in the first affidavit did not constitute an intelligence input.

 After The ‘Encounter’ The scene after the Ishrat encounter

A plain reading of the brief, three-page- long affidavit would make it appear fairly innocuous. But the BJP, several Union ministers and former bureaucrats claimed it was a ‘revised’ affidavit, that it ‘dropped’ evidence of the 19-year-old’s terror links that the first affidavit contained, and that it compromised national security.

In paragraph 8 of the first affidavit, the government had referred to Indian newspaper reports of July 15, 2004, that the Ghazwa Times of Lahore had described Ishrat as an LeT activist (as the Gujarat police had been claiming since the June 15 encounter). The moot point is: the first affidavit was neither revised nor changed; only a supplementary had been filed, and both would be part of the court rec­ords. The contents of the supplementary don’t exactly sustain it, but charges were freely aired that it exposed how the UPA played with ‘national security’, that Chid­am­baram had misused the CBI to persecute Modi for political reasons, and that the Congress was soft on terror.

Then home secretary G.K. Pillai app­eared on TV to allege that the second affidavit, filed in September 2009, was prepared at the political level and that he had nothing to do with it. Further, R.V.S. Mani, then undersecretary in the home ministry who had signed and sworn both affidavits, alleged that he’d been coerced into signing the second. Pillai and Mani implied that, given a choice, they’d not have cleared or signed it; they insinuated that ‘politics’ had everything to do with it, prompting many Union ministers to demand inquiries to fix responsibility.

Meanwhile, a PIL was filed in the Supreme Court, demanding that “now that Ishrat Jahan has been conclusively proved to have been a terrorist”, all the accused in the fake encounter case should be acquitted. It’s a convoluted argument, unlikely to hold up. But the fact of its admittance by the SC indicates that focus had been diverted from the guilty policemen.

Right from the beginning, this new discourse had a rehearsed air, epecially since David Coleman Headley, the American terrorist of Pakistani origin, repeated last month that he had heard that Ishrat was an LeT activist and suicide bomber. He had apparently made the same point in 2010 to an Indian team of investigators allowed access to him. But since then, an SIT and the CBI had concluded that Ishrat was killed in a fake encounter. While the CBI maintains that it was not tasked to look into terror links and had merely established the encounter was fake, the SIT reported to the high court there was no evidence to suggest Ishrat was a terrorist.

Remembering Ishrat A vigil organised for Ishrat Jahan in Delhi (Photo by Sanjay Rawat)

Could Headley, in prison in the US, have been primed to talk about Ishrat? The suggestion does seem highly unlikely, unless of course, the Mumbai court had done dummy runs to test the connection and allowed the prosecution to alert Headley on the line of questioning. There also seemed no occasion to ask Headley about the teenager, since he was in fact deposing in the 26/11 case of 2008.

How many wings did LeT have, Headley was asked on February 11 during the deposition through video-conference by Ujjwal Nikam, arguably India’s most well-known public prosecutor and possibly the only one conferred with a Padmashri. Some degree of familiarity between the two was admitted by Nikam himself, who claimed before the media that Headley had congratulated him on receiving the honour.

Now Headley, by his own account, had travelled to India seven times bet­ween 2002 and 2008, mostly from Pakistan. Indian agencies, however, had no clue of his links with the LeT or that he was preparing the ground for the 26/11 attack. It was left to the Americans to arrest him, strike a deal sparing him the death sentence (appa­rently because he was a double agent) in exhange for revealing what he knew.

But to return to his video deposition, Headley told Nikam that LeT had a finance wing, a women’s wing and a naval wing. The Mumbai attack having been launched from the sea, one would have expected Nikam to quiz Headley on the naval and the finance wings. But he seemed to have no interest in that. Instead Nikam, who claimed to be acting on instructions from the Mumbai crime branch police, asked Headley who headed Lashkar’s women’s wing! The next leading questions were whether Headley knew of any suicide bomber, her name and whether he was aware of any botched Lashkar operation in India. Helpfully, Nikam jogged Headley’s memory and provided three names: Noor Jahan, Ishrat Jahan and Mumtaz. “Ishrat Jahan is what I remember having heard,” Headley replied.

Gujarat cadre IPS officer Satish Verma, a member of the three-member SIT formed by the Gujarat High Court, scoffs at the claim. Breaking his silence this week, Verma claimed the SIT had found no evidence of the teenager’s terror link. The only ‘evidence’ put up by Gujarat police to support their contention, he pointed out, was her association with Pranesh Pillai alias Javed Sheikh. But the teenager had spent exactly 10 days with Sheikh since she was introduced to him in May, 2004. In June both were dead.

“It takes at least a fortnight to learn how to fire a .303 rifle,” said Verma. To train a suicide bomber would take much longer. The SIT had checked her attendance in college and at the tuition centre she taught in and was satisfied she had no terror links.

***

Why did this debate spring up now? Supreme Court lawyer Vrinda Grover, who is appearing for Ishrat’s mother, confirms that even the charges are yet to be framed almost three years after the CBI filed the first chargesheet in 2013. “That is what I would like to know,”  Grover told Outlook, “why is the CBI not allowing the trial to commence?” The controversy over the affidavits, she felt, was probably des­igned to divert attention from the case.

“The CBI was asked by the Gujarat High Court to investigate whether it was a fake encounter. It was not our brief to establish the terror links of those who were killed,” said former CBI director Ranjit Sinha this week, audibly irritated by the question. The agency, under his charge, had sought the government’s sanction to prosecute four IB officers as well, but the UPA government denied CBI permission. But the agency went ahead and filed a supplementary chargesheet against the IB officials.

The CBI investigation endorsed what the two earlier inquiries had established. “We collected evidence that Ishrat and Javed Sheikh alias Pranesh Pillai were picked up in Mumbai by officers of the IB,” one of the investigating officers told Outlook. The agency gathered evidence that the duo were first kept in an IB ‘safehouse’ in Mumbai before being han­ded over to Gujarat police. He repeated the agency’s claim that it had evidence against the four IB officers, including special director Rajinder Kumar.

Another investigator, on condition of anonymity, claimed that from the beginning the IB had refused to cooperate with the investigation. “We asked for tour rec­ords of intelligence officers and they told us that the records had been destroyed. We wanted to look at the call records of the officers but again, the IB would not oblige,” he claimed. He went on to claim that, in one of the meetings, then CBI director Ranjit Sinha wanted to know if the names of the IB officers could be dropped. Evidently, considerable pressure was being brought upon Sinha to let off the IB off­icers ‘in the national interest’.

But Sinha was told that since the IB did not enjoy any special immunity under law, and since its mandate did not include abducting people, planting weapons or abetting fake encounters, and because there was overwhelming evidence against the officers, it  was inadvisable to drop charges against them.

“It became difficult to drop their names because of the trail they had left behind. Moreover, they had worked closely with Gujarat policemen, many of whom had described in detail the involvement of the Intelligence Bureau in the encounter. There was no way we could have dropped their names even if we wanted,” he exp­lained. The only alternative, he agreed, was to declare the killings as a ‘genuine encounter’ and close the case. But this posed problems because of the overwhelming evidence suggesting otherwise.

All this also explains why the Gujarat government was so prompt in welcoming the deposition of David Headley on February 11. Gujarat police officers facing charges in the fake encounter case cannot be pleased with the denial of sanction to prosecute intelligence officers while they are left to face the music—and prosecution. The Gujarat policemen had claimed all along that the encounter was a joint operation of IB and Gujarat police. Statements given by them to the SIT and the CBI suggested that it was the IB officers who “abducted the four terrorists” and confined them first to IB safehouses before handing them over to Gujarat police.

Sinha, who was director, CBI, during 2012-2014, refused to comment on the current controversy. “I have had more than my share of controversy,” he wryly said. But asked if he was pressured by the then home minister or the prime minister, he replied in the negative. “I only rec­all the PM asking me once about the involvement of the IB in the encounter,” he told Outlook before hanging up.

The chargesheet filed by the CBI in court claimed that two of the four killed on June 15, 2004, had actually been det­ained in April and May that year. One Jishan Johar was picked up in April and was confined in House No. 164-165 in Gota Housing, off the S-G highway in Ahmedabad. Amjad Ali was “abducted” on May 26 and detained at Arham Farmhouse, on the outskirts of Ahme­dabad. Ishrat Jahan and Javed Sheikh were similarly whisked away from Valsad toll booth and kept at Khodiyar Farm­house, the agency told the court.

Could the CBI have fabricated the evidence and statements to implicate IB off­icers? The government took the stand that, in the national interest, the IB could not be compromised in any way. The IB could not afford to blow its cover and come out of the shadows, the Supreme Court had concurred last month while dismissing a petition that asked for an audit of intelligence agencies and demanding that they be made accountable to Parliament. The IB being such a pivotal institution, what could have prompted the CBI to take an ‘anti-national’ stand in the case? Could the CBI’s explanation that the IB had left a heavy and unmissable trail have some grains of truth?

The ‘encounter’ had run into uncomfortable questions even before the inquiries. If there was a tip-off about terrorists having left Mumbai in a specific car, why couldn’t they be intercepted anywhere between Mumbai and Ahmedabad? The press rel­ease issued by Gujarat police on June 16, 2004, claimed that the terrorists engaged police for half an hour with heavy arms, including an AK-56. But none of the policemen was injured. The magistrate, SIT, media reports and a PUCL fact-finding team had punctured far too many holes in the police version to leave any doubt about the encounter having been staged.

We are, therefore, back to the fundamental question. Who benefits by Headley’s hearsay that Ishrat was a suicide bomber?  And a supplementary question. Even if she was a potential terrorist, why did the police ‘stage’ the enc­ounter? Finally, can fake encounters be legitimised by courts?

***

Exhibit A

2009: The Audio Sting

Gujarat police IPS officer G.L. Singhal* talking to additional director-general of police of Gujarat, P.P. Pandey

Singhal: Sir, namaskar.

Pandey: Are you in a meeting?

Singhal: Yes, Sir, now I have come out.

Pandey: That order for Abhichandani** is done?

Singhal: Ji, ji sir.

Pandey: Tomorrow someone is coming. Undersecretary from Delhi***, for signing affidavit.

Singhal: Right, right sir.

Pandey: Tell Abhichandani, if he does properly, we may try to make him a high court judge.

Singhal: Ji, ji sir. I will explain him. I have understood.

*Recording done by Singhal and handed to the CBI. He has been reinstated in Gujarat police but remains an accused

**Abhichandani is the advocate for R.V.S. Mani through whom the affidavit was filed before Gujarat Hight Court

***Mani, who now alleges torture by CBI, is the undersecretary

Exhibit B

2013: The CBI Chargesheet

“In the evening (of June 13, 2004), bet­ween 7:30 PM and 8:30 PM, I had gone with G.L. Singhal to Bungalow No. 15, office of Joint CP. I saw that DG Vanzara, Rajinder Kumar and P.P. Pandey, joint commissioner, were present there. They were talking about an LeT operation. That time, Kumar told Vanzara, ‘talk to Chief Minister about it’. Vanzara said he would talk to ‘safed daadhi’ (white beard) and ‘kaali daadhi’ (black beard)…”

“On 14 June [the next day—the day before Ishrat and others were killed] afternoon I along with Singhal went to Vanzara’s chamber in the Shahbagh office. Vanzara handed over one written complaint to Singhal. There was a plan to kill some persons of LeT who intended to kill the CM. Singhal was disagreeing with the draft complaint as there was something to do with Ishrat. But Vanzara was adamant. He also said he had approval from the chief minister and minister of home.”

*Statement of D.H. Goswami, Retired DSP, Gujarat Police (Part of the CBI chargesheet filed in 2013

Exhibit C

2016: Headley Deposition

Public prosecutor Ujjwal Nikam*: There is a women’s wing in the LeT?

Headley: Yes.

Nikam: Are there female suicide bombers in LeT?

Headley: No. I don’t know.

Nikam: Can you name a suicide bomber?

Headley: I cannot name.

Nikam: Was there a botched-up operation in India?

Headley: Yes, there was a botched-up operation which I learnt when Zakiur Rehman Lakhvi was talking to Muza­mmil Bhat. Later I asked Muzammil and he told me there was a female member of LeT who was killed in a police shootout at a naka. Exact place I cannot recall.

Nikam: I will give you three options: Noor Begum, Ishrat Jahan or Mumtaz.

Headley: I think it was the second one. I have heard the name Ishrat Jahan.

*Public Prosecutor Ujjwal Nikam claimed that he was under instruction of Mumbai crime branch  investigating the 26/11 attack on Mumbai to put these questions to Headley. He was decorated with the Padmashri this January