Why the Ishrat Jahan case has no non-toxic ending

Even nine years after the Ishrat Jahan encounter killing, it’s proving dizzyingly difficult to keep pace with the many curious goings-on in the case.

If the tug-of-war between the CBI and the Intelligence Bureau over the investigating agency’s decision to name IB special director Rajendra Kumar in the charge-sheet in the 2004 killing was not sensational enough, the latest turn of the screw – in the form of a move by the Home Affairs Ministry to slow down the CBI effort – validates the sneaking suspicion that powerful forces are at work to muddy the waters for political ends.

The Home Affairs Ministry is  now sending out the message that the CBI will have to seek sanction under Section 197 of the Code of Criminal Procedures for the prosecution of Rajendra Kumar since he is a “public servant”. (More details here and here and here.) That Section, which relates to the prosecution of judges and public servants, says: “When any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction”  (Full text here.)

CBI officials, who are preparing to file a charge-sheet later this week, claim, on the other hand, that on the basis of the “evidence” that they have, they don’t really require the sanction of the Home Affairs Ministry. Rajendra Kumar will likely be charged with playing a crucial role in generating the intelligence input that led to the killing of Ishrat Jahan and four others in an alleged encounter on the outskirts of Ahmedabad in June 2004.

The intelligence inputs had claimed that Ishrat Jahan and the others were coming to Ahmedabad to assassinate Gujarat Chief Minister Narendra Modi, but the CBI is seeking to establish that the encounter was faked, and that Ishrat Jahan and the others were in the custody of State police officials at the time of the killing.

Late last week, documents purported to have been secured from the CBI (the details of which were published in Tehelka magazine and aired on NDTV) claimed even more sensationally that the ‘encounter’ killings had the prior approval of  top political leaders – in particular two men who were identified only as safed dhadi (white beard) and kali dhadi (black beard). Those cryptic allusions to facial hair were widely interpreted as pointing to Modi and his then Minister of State for Home Amit Shah.

The weight of what appears to be hearsay evidence in this case will be tested in the courts, but the selective leaks of crucial prosecution strategy and claimed evidence validates the suspicion that the intention in this case is not limited to securing justice but to make a political roadshow of the trial.

As columnist Ashok Malik observes, the evidence cited – one accused-turned-witness-turned-would-be approver, having allegedly heard another person refer to two people with beards then concluding that the reference was to Gujarat’s chief minister and home minister Amit Shah at the time – is scarcely compelling.  ”If courts began pronouncing judgments on such hearsay and allegedly overheard loose talk, three-fourths of Parliament members would have been behind bars by now.”

That such a high-profile case centred around an alleged assassination attempt on the Chief Minister of a State, involving alleged operatives of the Lashkar-e-Taiba, should have dragged on for so many years without being brought to fruition, and still see driblets of politically sensitive information being leaked by the investigating agency, points to the political stakes that are riding on it. The latest move by the Home Affairs Ministry to get the CBI to abide by the procedural requirement of seeking government sanction for Rajendra Kumar’s prosecution is just the latest piece of the jigsaw puzzle to fall in place.

But whichever way the case turns, there are absolutely no circumstances in which it will have a happy ending. If the CBI’s claim is established and upheld by the court- and it is a big if –  it would mean that the Chief Minister of a State was complicit in a fake encounter killing. Even given the many egregious earlier instances of fake encounter killings in other States with the express orders of the top   political leadership, such a denouement would represent a perversion of power politics where there is utter disdain for due process of law (particularly if it is established that the alleged terrorists were in police custody).

But even the other possibility – that the encounter wasn’t faked – opens up another disquieting line of thought: that the CBI is being used in perverse ways to “fix” a political adversary through foul means. As Malik points out, the issue goes beyond merely a battle between the CBI and the IB or even the prospects of individual officers. “The manner in which a major assassination attempt against a top political leader is sought to be mocked and dismissed – despite the LeT embracing Ishrat Jahan and her accomplices s its ‘martyrs’ in the days following their killing – speaks of an unconscionable irresponsibility. That the Congress, which has lost two Prime Ministers to assassination, can resort to such methods makes it all the more unfortunate.” Whichever way the case proceeds from here on, it is hard to escape a toxic ending to the narrative.