Police Encounters are the Dirty Side of Indian Democracy

Raising a ruckus over P. Chidambaram’s “second affidavit” in the Ishrat Jahan case will not make the truth about encounter killings go away

Sixty-nine years after its birth, India’s democracy is facing a mortal threat. A government – and a political party – with little respect for the law is using the law to harass and humiliate its political opponents. It may not be the only government in India to have done so. But it is the first Central government to do so, and it is pursuing its vendetta with a disregard for consequences that is threatening to tear the seams of democracy asunder.

In less than two years it has dragged Sonia Gandhi, Rahul Gandhi and Arvind Kejriwal, its principal opponents in the nation, and in Delhi, into court on flimsy charges that no self-respecting judge should have entertained. It has sent the police into Jawaharlal Nehru University, something no previous government had done, and arraigned JNU Students Union president Kanhaiya Kumar on the basis of a doctored video that its own propaganda factories have produced; it has kept the Patidar agitation leader in Gujarat, Hardik Patel in jail for 80 days, repeatedly denying him bail.

It is now contemplating dragging former home minister P. Chidambaram into court on the charge of having changed an affidavit the Union home ministry submitted to the Gujarat high court on the Ishrat Jahan encounter in 2009 in order to strengthen the case being made by the Central Bureau of Investigation against the then Gujarat home minister Amit Shah and a score of indicted Gujarat police officers and men. The Modi government’s opportunity to do this arose on February 12, 2016, when the 26/11 mastermind, David Headley, stated – while ‘cooperating’ with Indian interrogators – that the 19-year-old Ishrat Jahan was not an innocent bystander but a member of the Lashkar-e-Tayyaba.

Armed with Headley’s statement and a junior home ministry official’s claim that he had been coerced by his senior into preparing the second affidavit, Union home minister Rajnath Singh has sought to suggest that there was no fake encounter, that Ishrat Jahan was a suicide bomber and had been killed in a genuine shootout, and that Chidambaram fabricated evidence in order to create a case against Modi and Amit Shah.

Dangerously inflammatory statement

Union commerce minister Nirmala Sitharaman has gone a long step further and claimed that the purpose of the changed affidavit was to invite ‘the enemy’ to launch more terrorist attacks to assassinate Narendra Modi because they cannot fight him politically. “They are happy to play with the enemy… they wanted to quietly watch a terror plot bloom in order to eliminate a political opponent.” she said in a carefully prepared, 22 minute televised statement.

https://youtu.be/lAGW99Yuql4

If this allegation were true, the Congress would be guilty of having violated the first principle of democracy – the replacement of the ballot with bullets. It would therefore provide a moral justification for the BJP to abandon democratic politics as well, and resort to brute force to destroy its opponents.

Sitharaman’s accusation therefore needs to be subjected to the most rigorous scrutiny possible. If it cannot be substantiated, it will rank as the single-most dangerously inflammatory statement made by any politician in India’s 69 years of independence.

Fortunately this allegation fails to cross the very first hurdle it encounters: a complete absence of motive. Had Chidambaram revised the first affidavit in late 2013, there would have been room to doubt his motives, for the Congress was clearly on its way out and the BJP had chosen Modi as its prime ministerial candidate. But in September 2009, when the home ministry filed its revised affidavit, the Congress had just won a huge victory in the national elections four months earlier, and the next Gujarat state election – where it would have to pit itself against Modi once more – was still more than three years away.

The BJP had lost a sixth of its 2004 voter base in 2009 and Modi had yet to replace L.K. Advani as its national leader. The economy was also at its peak, with GDP growing by more than 9%, industrial growth close to 14% and employment growing by 7 million a year. Inflation was also close to zero. So what could the Congress conceivably have gained from inciting the assassination of Narendra Modi?

Sound reason for revising the Ishrat affidavit

Second, the sequence of events in 2009 shows that there was a perfectly legitimate reason for the home ministry to order the filing of a second affidavit on September 29.

Its first affidavit, submitted at the beginning of August, had dismissed the LeT’s later retraction of its claim that Ishrat Jahan was one of theirs, and firmly backed the Gujarat government’s claim that there had been a genuine shootout. But five weeks later, on September 7, Ahmedabad metropolitan magistrate S.P. Tamang submitted a 243-page report on the killing to the Gujarat high court, prepared on his own initiative, that made a very convincing case that the four alleged terrorists had been kidnapped and brought to Ahmedabad a few days earlier, and killed in cold blood a day before the alleged encounter.

The crucial piece of evidence he cited was the pathologist’s finding that when the bodies were examined, they were already in rigor mortis, which had set in about six hours before the reported time of the encounter. Tamang gave a two-page list of police officers and constables who had been involved in the fake encounter.

More convincing even than the evidence he adduced were the precautions that he took to keep his findings secret from the entire city. In an unprecedented departure from practice, Tamang did not employ a stenographer, and did not use a computer, but wrote the entire 243-page report in long-hand. Tamang clearly did not trust even his personal staff and the inviolability of his computer. There can be no more eloquent testimony of the atmosphere of terror that the Gujarat police had created to keep its misdeed secret.

The Tamang report and the circumstances in which it was prepared may have delighted the Congress, but it also made it impossible for the home ministry to keep ignoring the LeT’s retraction of its initial claim. The revised affidavit did not reverse any conclusion it had reached in the first. It simply removed sections that referred to Ishrat Jahan.

Did the BJP only seize the opportunity created by David Headley’s identification of Ishrat Jahan as a suicide bomber? Or did it create it? Conspiracy theories are inherently repugnant but in this case the second possibility cannot be ruled out.

Headley’s confession has been accepted as gospel far too readily. “Jahan was an LeT member, Pakistani-American Headley said in his sensational disclosure while deposing before Special TADA Court Judge … on Thursday”, one online journal asserted.

In fact he did nothing of the sort. The video of this portion of Special Public Prosecutor Ujjwal Nikam’s interrogation, uploaded to YouTube, shows that Headley did not volunteer the admission. Nikam led him to it by the nose, asking no fewer than four leading questions, to name Ishrat Jahan a terrorist. The last two of which were “do you remember her name” and “was it Noorjahan Begum, or Ishrat Jahan, or Mumtaz Begum”.

Noorjahan and Mumtaz are names rarely, if ever, given to girls today because they were the titles, not names, of the wives of Mughal emperors Jahangir and Shahjahan. Noorjahan’s real name was Mehr-un-Nissa, and Mumtaz Mahal’s was Arjumand Banu. What is more, begum is a form of address reserved for married women. There is no possible way David Headley would not have understood what Nikam wanted him to say. How he, and his former ISI handlers in Rawalpindi, must have chuckled when the storm broke!

What is the compulsion that has made the BJP, if not coax David Headley into indicting Ishrat Jahan as a terrorist, then leap upon it a full 12 years after she was killed? The answer is that Ishrat Jahan’s is not the only fake encounter to have taken place in Gujarat during the tenure of Narendra Modi and Amit Shah. Thirty-two officers and men of the Gujarat police, including six senior officers, are either out on bail or have been languishing in jails for up to eight years, waiting to be tried for no fewer than five separate fake encounter cases.

When these come up in court, as they must one day, they will reveal that between 2002 and 2007 the crime branch of the Ahmedabad police had become a “killing machine” (a term senior New York Times correspondent Mark Mazzetti had coined for the CIA) not only for terrorists from Pakistan but also for eliminating other criminals whom the rickety and deadlocked judicial system could not punish, and, in some cases, even people unconnected to wrongdoing of any kind who happen to be in the wrong place at the wrong time.

Nothing reveals the damage that the five cases together can inflict more clearly than the “encounter killing” of Sohrabuddin Sheikh in November 2005.

Killing of Sohrabuddin

Sohrabuddin and his accomplice Tulsiram Prajapati were straightforward gangsters and assassins for hire. Both faced a number charges of criminal extortion from marble mine owners in Rajasthan and Gujarat, arms smuggling, and murder. According to the CBI, Sohrabuddin was taken off an interstate bus, along with his wife Kausar bi and Prajapati, taken to a farmhouse outside Ahmedabad, and killed in a staged ‘encounter’ – allegedly as a terrorist who was planning to assassinate Modi.

Three days later Kausar bi was strangled, taken to Illol village in Gujarat – the home village of D.G.Vanzara, director general of the state anti-terrorist task force – and cremated there. (The killing was later admitted by the attorney general of Gujarat before the Supreme Court). Prajapati, who was a crime branch informer, was initially spared.

No one doubted the police version of the Sohrabuddin killing till, a year later, drunken police officers boasted about it in front of a journalist, Prashant Dayal, who published a well-researched report in a Gujarat daily, Divya Bhaskar. Four weeks later, on December 28, Prajapati was killed in another staged encounter whose details were recounted in excruciating detail by the CBI in its charge sheet against Amit Shah.

These were the three ‘encounter killings’ for which the CBI indicted Amit Shah – then Modi’s home minister in Gujarat, in 2010. Dayal believed that the Gujarat police had carried out a Rs. 2 crore supari – contract killing – of Sohrabuddin, then killed his wife to silence her, and killed Prajapati in order to eliminate the sole remaining witness.

In its indictment of Shah, the CBI presented evidence of Amit Shah’s involvement. It also submitted cell-phone records, and audio and video tapes that, seemingly, implicated Shah in the conspiracy to eliminate Tulsiram Prajapati. Shah was arrested, but immediately granted bail and remained the home minister of Gujarat. But a dozen officers and men were sent into judicial custody.

This is simply not the kind of publicity that Modi can afford, either as the leader of the BJP, or as the prime minister of India. Nor is it, in the Information Age, something that India can. For the plain truth, which public trials of the indicted officers and men will reveal, is that there is hardly a state in the country where fake encounters have not become the police’s way of dealing with insurgents, terrorists and criminals.

This is the dirtiest side of India’s corruption-ridden democracy. The BJP’s leaders knows trading accusations with rival political parties is not the way to exonerate themselves. They also know high-profile trials that expose this pattern to the world  – and their own culpability – need to be avoided. The Narendra Modi-Amit Shah strategy is to try and contain the damage by making the encounter cases simply  disappear. That is not going to happen. What could disappear, if this no-holds-barred, law-be-damned effort continues, however, is democracy itself.

Prem Shankar Jha is a senior journalist and former adviser to V.P Singh.