A week before the promised report on the conspiracy part of the Rajiv Gandhi assassination case, the P.V. Narasimha Rao Government seems all set to clip the wings of the Jain Commission of inquiry. The Government filed a special leave petition (SLP) before the Supreme Court on December 22, its last working day of the year, seeking to restrain the Jain Commission from going into any aspect dealing with the role of the Liberation Tigers of Tamil Eelam (LTTE).
If it gets the apex court's approval, the SLP would automatically render the Commission—set up specifically to look into the conspiracy angle—almost infructuous: it seeks to exclude from the scope of its inquiry the vital period from 1981 to June 1987. The 546-page document filed by Additional Solicitor General K.T.S. Tulsi also seeks to nullify the Commission's earlier order for CBI Special Investigation Team's (SIT) case diary, which pertains to the LTTE role.
In detail, the SLP seeks mainly to:
- exclude the LTTE from the purview of the Commission;
- nullify the Commission's order demanding SIT documents;
- exclude the case being tried in the designated TADA court from the purview of the Commission; and
- restrict the scope of the inquiry to the period from July 29, 1987, to May 21, 1991—signifying the post-Sri Lanka accord period and leaving out six years of the LTTE's intensified activities (1981-July '87) when it had free access to and patronage from India. Incidentally, Rao was foreign minister in between this period and was involved in Indo-Sri Lankan affairs.
Undeterred by the government move, Justice M.C. Jain has taken a confrontationist attitude. On December 28, he asked CBI Director K. Vijaya Rama Rao to hand over the crime register, which forms the basis of the case diary, by January 6. Apart from Jain's tough stance, the Government's unprecedented move to have changed, midway, the terms of reference of a probe panel constituted under the Commission of Inquiry Act has raised questions—both on its intent and legal validity.
In fact, this is the third move by the Rao Government to either wind up or min-imise the Jain Commission's role. On February 10, 1993, a cabinet agenda seeking to wind up the Commission was withdrawn following protests by members of the Cabinet, including Arjun Singh. Later, the Government backed a private petition filed by Mushtaq Ahmed, a little-known lawyer from Uttar Pradesh, pleading that the Commission be wound up as it was not serving any purpose. The petition, which cited almost the same reasons as the present SLP, was rejected by the Delhi High Court on November 16, 1995.
True to his style, the Prime Minister has fielded P. Chidambaram, minister-in-charge of the probe and a close family friend of the Gandhis, to propose the move. But Chidambaram has put on record Rao's role. His noting on the file says he discussed the matter with Rao twice. "The PM has approved it." Ironically, Chidambaram was assigned the task of ensuring a speedy probe into the assassination in September—a month after Sonia Gandhi publicly complained of the probe's slow pace in Amethi. Subsequently, Chidambaram made statements in Parliament and outside that the Government would fully cooperate with the Jain Commission and come out with its report by the end of December.
With this, the Prime Minister also seems to have taken a calculated gamble—risking trouble from the pro-Rajiv section within the Congress, who would receive a much-needed boost in the election year if Sonia Gandhi makes it an issue. Arjun Singh and other Congress rebels have personally accused the Prime Minister of trying to scuttle the probe, with reports of the missing file from the Prime Minister's Office only giving credence to the charge.
Interestingly, it was Rao as the AICC president who had suggested to the then prime minister Chandra Shekhar on June 2, 1991, that the conspiracy angle should be looked into separately as the scope of the J.S. Verma Commission probing security lapses was too limited. Chandra Shekhar promptly accepted Rao's suggestion in toto and constituted the Jain Commission. After Rao took over as prime minister in June 1991, his government vowed to complete the probe at the earliest. Four years and seven months later, Rao clearly seems to have changed his mind. But unlike on previous occasions, this time he has sought judicial endorsement of the controversial move.
The SLP argues that the proceedings of the Commission on the LTTE aspect might prejudice the ongoing trial of the 41 accused before the designated court. This argument chimes well with the tone adopted by the latter—the TADA court had earlier upheld the SIT plea against making available the case diary and related documents to the Jain Commission. The SIT-Jain Commission tussle had spilled into the open earlier as well. Through its order on July 2, 1993, the Jain Commission had conceded that "for the present" it would not go into "the areas covered by the chargesheet and will...pro-ceed to hold an inquiry in respect of persons and agencies, other than those against whom a chargesheet has been filed in the designated court, who are responsible for conceiving, preparing and planning the assassination". But, it also insisted on the SIT making the case diary, documents, records and materials available to the Commission so that its own inquiry is not hampered or delayed.
The SIT, headed by D.R. Kartikeyan, on the other hand, has its own reasons for not being cooperative with the Commission: it would expose the large-scale slip-ups and loose ends in the investigation. It has all along been resisting the Commission's demand for the case diary, first made in November 1991—pleading (at different stages) that the investigation/trial was in progress. As opposed to this stonewalling, Kartikeyan not only deposed before the Verma Commission orally, but even supplied to it some important pieces of evidence. They included part of the case property consisting of three videotapes, 10 photographs shot by Haribabu (hired by the killers) and a sketch of the belt-bomb.
As the tussle went on, Ahmed's petition had provided an ideal opportunity to the Government to push the Jain Commission into the dustbin. But the high court's ruling came as blighter. The SLP, in effect, also seeks to nullify the court ruling: "We do not find any need to restrict the Commission to matters other than the role of LTTE." Curiously, Ahmed did not challenge the high court's order in the apex court. "We have already raked up the matter and earned enough bad name, but the Government is free to pursue the matter," says C.S. Vaidyanathan, Ahmed's counsel.
And the Government has just done that. It rationalises the SLP in a fashion similar to Ahmed's. Official sources cite the fact that the SIT has already gathered enough evidence to nail the LTTE. Hence, they say, it makes no sense for another commission of inquiry to duplicate the entire effort all over again. As for the SLP, the Government plans to keep ita well-guarded secret till it comes up for hearing in early January '96—indeed, the manner in which it was filed on the year's last working day was almost furtive. The SIT took a fortnight to prepare the 546-page document (including annexures running into 400-odd pages). It was later examined and approved by Gopal Subramaniam, advisor to Chidambaram, and Tulsi, and ultimately got Rao's nod.
THE original terms of reference for the Commission, notified on August 23, 1991, were to go into "the sequence of events leading to, and all the facts and circumstances relating to the assassination of Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission headed by J.S. Verma)". It was also to find out "whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy in this behalf and, if so, all its ramifications". And the LTTE activities from 1981 up to the 1987 Sri Lanka accord, obviously, formed an essential aspect of the probe.
The clash of jurisdiction with the SIT was raked up several times, but Jain remained unrelenting. Way back on July 2, 1993, he passed an order overruling such government objections. The order said: "The Central Government should stand by the terms of reference embodied in the notification. The scope has to be understood in the light of the terms of reference themselves. The terms of reference cannot be changed or altered or interpreted differently by any affidavit or written submission."
This hardly persuaded the Government. And its predicament in the light of the Congress' pro-LTTE stance—especially during Rajiv Gandhi's regime, which would be borne out by official records of the 1981-91 period—is understandable.
The only way to avoid scrutiny leading back to itself is to narrow the Jain Commission's scope. That the LTTE was being provided with training facilities in camps run by the RAW became obvious, ironically, when Doordarshan telecast a programme on it in October 1985.
An indication that the Government was not keen to part with such information to the Commission had come a few months ago when Home Minister S.B. Chavan refused to give immunity to the Commission, saying "it may embarrass a family". And the embarrassment would be no less for the present government. A favo-urable verdict from the court might save it, but then to achieve this Rao would have to stick his neck out as an anti-Rajiv figure politically.