By Kapil Sibal
The BJP has been short on truth about the Central Bureau of Investigation’s (CBI) role in investigating fake encounters. It is suggested that the UPA has been able to ensure its longevity by misusing the CBI. When anointed in Goa, the Gujarat chief minister brazenly stated that the Congress was behind these investigations. BJP national president Rajnath Singh said that the Congress has pitted the CBI against the Intelligence Bureau and that the agencies are being misused for politics.
The frequency of fake encounters, immediately after the 2002 Gujarat riots, should be a matter of concern for all. Under the Delhi Special Police Establishment Act, the CBI has no jurisdiction to investigate any criminal act, including fake encounters, in any state, except with the consent of the state government. The other circumstance in which the CBI is allowed to investigate is when a court hands over the investigation by state agencies to the CBI. This happens only when the court concludes that state agencies are protecting the accused and attempting to derail a fair investigation. Almost all investigations of fake encounters in Gujarat have been directed to be conducted by the CBI through court orders.
The Ishrat Jahan encounter took place on June 15, 2004. On December 1, 2011, the Gujarat High Court handed over the case to the CBI. The Tulsi Prajapati encounter took place on December 28, 2006. This was probed by the state police. A charge sheet was filed in July, 2010. The Supreme Court, in April, 2011, on an application by Prajapati’s mother, directed the investigation to be handed over to the CBI, observing: “It is desirable to entrust the investigation to the CBI.”
The Sohrabuddin Sheikh encounter took place on November 26, 2005. His brother filed a petition in the Supreme Court on which the Criminal Investigation Department (Crime) was directed to investigate the case. On January 12, 2010, the Supreme Court observed that: “the police had failed to carry out a fair and impartial investigation as we initially wanted them to do.” The Supreme Court, thus, further handed over the investigation of this case to the CBI.
The Sadiq Jamal encounter took place on January 13, 2003. The Gujarat High Court, on July 16, 2011, handed over the investigation of this case to the CBI.
All these details demonstrate that the UPA government had nothing to do with any of the investigations of the above cases by the CBI. This was done only when courts realised that the state investigating machinery was not investigating these cases fairly and impartially.
In almost all these cases, the state, right up to the Supreme Court, was fiercely contesting the charge of fake encounters; assiduously defending the accused who were subverting the cause of justice. This should be a matter of great concern to the BJP leadership now that the CBI has filed formal charge sheets. In the history of India, in no state have so many high-ranking police officers been accused of murder through fake encounters. The BJP, instead of accusing the Congress, should introspect. It should air its concerns about the aberrations that took place in Gujarat. The fact that the then minister of state for home affairs is facing trial for having conspired in a fake encounter case, suggests state complicity. Instead of questioning the CBI, the BJP should question the chief minister of Gujarat.
The UPA cannot, nor could it have interfered in the CBI investigation. This sentiment was echoed by no less than the Leader of the Opposition in the Rajya Sabha on July 23, 2003 when he said, “Sir, let me, first of all, assure this honorable House that the CBI is an extremely professional agency…. Sir, whether the CBI is seriously pursuing or colluding, eventually the judge of this can’t be this honorable House, can’t be the members polarised on party-lines, it has to be the judge, it has to be the high court, it has to be the Supreme Court.”
The chickens always come home to roost.
It seems that while the BJP is in power, the CBI is a professional agency; while the UPA is in power, in the minds of the BJP, it has become unprofessional.
A spokesperson of the BJP and the then minister of state for information and broadcasting, in the course of a debate in 2003, stated: “Instead of making sweeping allegations against the CBI, we must understand that still in the entire country wherever any sensitive cases come about – we have dozens of PILs in the court, demanding the court, requesting the court that, direct this case to be prosecuted by the CBI because people still have trust in the professional competence of the CBI. After all, the CBI is an institution.”
What a turnaround!
The blatant doublespeak of the BJP is to be admired. It extols the virtues of the CBI when it is in power and damns the institution when in Opposition. It was during the NDA regime that the CBI dropped charges against Mr LK Advani in July 2003 in the Babri Masjid case, resulting in his acquittal in a Rae Bareilly court.
Howsoever high you may be, the law is above you. This applies to all men and institutions. That includes members of all agencies, including investigating agencies, be it the state police or the CBI. The BJP leadership is seeking to politicise a matter which has nothing to do with politics but with a fake encounter. If the CBI concludes that a particular officer of an intelligence agency is involved in a criminal conspiracy, so be it. No political party can declare either his innocence or guilt. The investigation must continue relentlessly without interference. Sound bites won’t help the cause of justice, nor should they encourage pitting one agency against another.
The rule of law can only be upheld if investigating agencies are allowed to investigate without fear or favour. If the investigation is tainted, that too must be decided only in a court of law. Public speeches and irresponsible statements will not help the cause. Investigation must get at all those involved in heinous crimes, without exception.
Kapil Sibal is minister of communications and information technology and minister for law and justice.
The views expressed by the author are personal