The Credibility of India’s Investigating Agencies is Under a Cloud

Special Prosecutor Rohini Salian’s claims of being asked to go slow on the Malegaon blasts case raises disturbing questions

The National Investigation Agency (NIA) was set up in 2008 for the purpose of carrying out thorough, professional and fair investigations. The NIA’s mandate is limited to certain categories of serious crimes that threaten State security. The Malegaon blast is one of these crimes. Within this overall category, the Malegoan blast case occupies a special place; it was handed over to the NIA after Hemant Karkare’s investigations showed that certain Muslim men who were being tried for this crime were innocent of it.

Malegaon was, and is, a test case for the integrity of the criminal justice system in India. The accused are not Maoists, Muslims or Mujahideen who are considered ‘anti-national’ in popular political discourse. Instead, they are persons who represent a rather aggressive version of the Hindutva philosophy espoused by the RSS and its allies. Now, the Special Public Prosecutor Rohini Salian has said publicly that ever since the change of the government at the Centre, pressure is being imposed to favour the accused in this trial. The implications of her statement for this trial, and for the institutions that define this Republic of ours, are ominous.

Equally disappointing is the defence put forward by the NIA on June 26. Apart from a blanket denial of Salian’s allegations, a statement has been released by the agency that she was going to be removed from her post as Special Prosecutor anyway. There is also a vaguely regal admonition towards the end that the NIA “wishes to place on record that before publishing a news article, it is expected that the concerned reporter approaches the agency for hearing its version and avoids writing a one sided story.”

The NIA, which has been accused of favouring the accused, has chosen to brush aside this allegation and not answer it. The specific allegations made by Salian have been met by a general denial. A denial of this kind does not, unfortunately, inspire confidence. She mentions the day and date on which an NIA official told her not to appear. The NIA’s defence is that before the chargesheet is filed, Senior Prosecutors are not asked to appear in these cases. This is not and cannot be NIA policy as they do rely on Senior Prosecutors even at this stage to oppose bail, to seek extensions of time for investigation and for seeking permission for taking samples of handwriting and such like from the accused.

Government’s curt response

Whatever may be the shortcomings in the defence put forth by the NIA, the Central government, which has been directly accused of influencing the NIA, has been even more curt in its response. Assuming that the Centra government and the NIA are completely innocent of the accusations levelled against them, they still need to answer the charges. The government also bears the responsibility of maintaining public confidence.

This is not an isolated incident where the conduct of the Central government’s premier agencies has been brought into question. The Central Bureau of Investigation has still not approached the High Court against discharge orders in favour of BJP president Amit Shah, Gulabchand Kataria and several Gujarat Police officers in the Kaiser-bi, Sohrabuddin Sheikh and Tulsiram Prajapati murder case. Reports indicate that the CBI does not intend to challenge these orders. It is unheard of that the CBI lets such an order in a murder case go unchallenged. The CBI has filed, in the Sohrabuddin case, statements made before a magistrate by witnesses that implicate Shah and others. The trial court chose to disbelieve sworn statements at the stage of charge. The CBI, or for that matter, any police force in India, routinely challenges orders like this on no other ground than the argument that the veracity of a statement can only be tested at trial. This argument is taken even in respect of inadmissible statements made before the police. It has been repeatedly held by the Supreme Court that at the stage of framing the charge (roughly corresponding to the process of indictment under US law), the trial court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing charges, is sufficient to frame the charge and in that event it is not open to say there aren’t sufficient grounds for proceeding against the accused. This proposition remains unchallenged, yet in the Amit Shah case evidence was sifted carefully to declare the witnesses speaking against Shah as unreliable.

Appreciation of evidence is a delicate matter and cannot be done before all the evidence has been tested in trial. Witnesses who connect Shah and others to the murder of Sohrabuddin and Tulsiram Prajapati have been disbelieved on the grounds that they did not implicate Shah at the first possible opportunity. The obvious answer, of course, is that the delay happened because the investigation itself started half a decade after the crime. These are issues that can only be decided at trial. The CBI, and any other prosecuting agency, would have, in any other case, approached the High Court against discharge by th trial court. Half-a-century or so of prosecutorial practice has been abandoned without justification.

The erstwhile UPA government was faced with a choice in 2011. The Gujarat High Court had acquitted 12 people in the Haren Pandya murder case. It was a case investigated by the CBI which had conducted its investigation while the NDA government was in power before 2004. The High Court castigated the investigative agency for a shoddy frame-up. It could have been an opportunity for the then Central government to score political brownie points by ordering a fresh CBI investigation. The judgment of the High Court certainly gave them enough reason to do so. The government, however, allowed the CBI to file an appeal against the acquittals. Sometimes, governments have let go of their political agenda for the sake of institutional integrity. The Modi overnment, young as it is, has shown a disturbing propensity for diminishing the integrity of its premier policing agencies to benefit its own. The NIA and the CBI are institutions that have to be strengthened. Investigative agencies, whose integrity is in doubt, will have no other effect but to undermine public confidence and weaken the state.

Sarim Naved is a lawyer based in Delhi