Killing is a lot easier to do than building capacities for surveillance, investigation and prosecution. The Ishrat case is about a republic that’s allowing itself to dissolve into a state of criminal injustice

Early in the summer of 1988, as scorching winds of death blew across Punjab, a short, wiry man entered the Golden Temple, invisible among the great throngs of pilgrims gathering at the shrine from across India. Inside, he was greeted as an honoured guest by Surjit Singh Penta, the Khalistan terror commander who had made the temple his fortress. For the next several days, Mr. Penta worked with his visitor, an officer assigned by Pakistan’s Inter-Services Intelligence (ISI) Directorate, wiring up the temple with explosives. The threat, he was certain, would deter India from considering storming the temple, as Prime Minister Indira Gandhi had done in 1984.

New Delhi ignored Mr. Penta’s threats: the bombs were duds, and the man Mr. Penta thought was an ISI officer would serve, decades later, as Director of India’s Intelligence Bureau (IB). Nine days into an almost bloodless siege, the terrorists surrendered

Like many intelligence officials, Ajit Kumar Doval has never discussed what happened in the Golden Temple. Those who served during the period, though, speak of skilful deception operations that allowed the penetration of the networks linking Mr. Penta to the ISI; of the interception and disappearance of the Pakistani intelligence official as he made his way across the Punjab border to Amritsar.

The President of India later handed Mr. Doval a small silver disc, embossed with the great wheel of dharma and a lotus wreath, and the words Kirti Chakra.

Now, as former Intelligence Bureau (IB) special director Rajinder Kumar faces trial for the extra-judicial execution of Mumbai college student Ishrat Jehan Raza and three others, Mr. Doval’s story tells us something important. The Ishrat case is just part of a culture of killing. That culture is, in turn, a symptom of a much larger dysfunction. For decades now, India’s government has dodged a serious debate what a viable legal framework for counterinsurgency and counter-terrorism might look like, how it is to be administered and who will make sure it isn’t abused. It has simply ignored hard questions of capacity-building and accountability.

Delivering death

Few in the IB privately dispute the contours of the Central Bureau of Investigation's (CBI) case — whatever Mr. Kumar’s individual culpability may or may not have been. In February 2004, the IB was able to locate two Gujarat-based jihadists, trained in Pakistan, on the basis of information recovered from the body of a Poonch-based Pakistani Lashkar-e-Toiba operative, Ehsan Illahi. The two Gujarat-based men, referred to in CBI documentation as just C1 and C2, were persuaded — or intimidated, or bribed — to change sides. C1 and C2 informed their Lashkar handler, Muzammil Bhat — the key military commander of the 26/11 plot — that they were ready to stage an attack against top political leaders in Gujarat, including Chief Minister Narendra Modi.

The IB was waiting for Gujranwala-based Lashkar-e-Toiba operative Zeeshan Zohar, despatched to Gujarat in April on Mr. Bhat’s instructions. They were waiting for his Sargodha-born colleague Amjad Ali Rana — earlier injured in fighting in Jammu and Kashmir. They were waiting, too, when Pune resident Javed Sheikh showed up — but with a young woman who hadn’t, until then, figured in the story.

From immigration records, we know this: on March 29, 2004, Pune resident Javed Sheikh flew to Oman, on passport E6624023, identifying him as Praneshkumar M. Gopinath Pillai — a travel document obtained illegally, in addition to an earlier one in his Muslim name. He flew back to Mumbai on April 11. He purchased the second-hand car that was to carry him to his death. And he repeatedly communicated, the IB says, with Mr. Bhat — who finally authorised him to travel to Gujarat in June, believing C1, C2, and the two Pakistani fidayeen were ready to initiate their attack.

No one knows what Ms Raza Ishrat was doing with Sheikh; nothing, bar 26/11 convict David Headley’s second-hand claim that she was a suicide bomber, is on record. Her family insists she was just an innocent teenager, hired by Sheikh for a non-existent perfume business.

From witness statements recorded by the CBI, there’s reason to believe the officers involved considered sparing Ms Raza’s life, with some arguing that she would be too terrified to speak about what she had seen. There were others, though, who weren’t willing to take the chance.

There’s just no way any democracy can countenance their choice. Leave aside moral questions: police officials who have the power over the life and death of terrorists today can, tomorrow, use it against political opponents and all the rest of us. Encouraging such acts isn’t patriotism: it is a sure-shot way of turning us into Pakistan, or worse.

Yet, few principles survive encounters with reality unscathed. Everything has a context — and so did Mr. Kumar’s acts.

The dilemmas of democracies

From history, we know this: the values democracies espouse are at some distance from what they actually do: nothing Mr. Kumar is alleged to have done is different, in its ethical elements, from the Central Intelligence Agency’s drone war or Russia’s secret wars in the Caucasus. Last year, a bipartisan investigation held the United States guilty of torture through its post 9/11 wars. In 2009 alone, 33 separate allegations of torture were brought against British soldiers in Iraq. The U.S. practised large-scale torture and secret executions in its war against Vietnam. And Kenyan veterans of the Mau Mau rebellion of the 1950s won the right to sue the United Kingdom for what their lawyers say were “unspeakable acts of brutality.”

Even the most ethical of all wars, the great struggle to defeat German Fascism, was riven through by gigantic atrocities: the Nazi death camps; the firebombing of Dresden; the Soviet war atrocities during their epic advance into Berlin. There is no moral equivalence between the fascists and their enemies, but the actual practice of war doesn’t have victims and villains. Fritz Knöchlein, executed in 1949 for murdering 126 British prisoners of war, is now known to have himself been tortured in the London Cage, a secret camp hidden among the posh villas of the Kensington Palace Gardens.

For influential traditions of human rights discourse in and outside India, the law represents a kind of secular version of divine will: a credo that will build a utopian order, free of the filth of politics. “The law liberals venerate,” John Gray has noted in a stellar essay, “isn’t a free-standing institution towering majestically above the chaos of human conflict.”

Instead, Gray pointed out, “modern law is an artefact of state power.” “Western governments,” he went on, “blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state.”

The Indian republic, fractured from the moment of its birth, faced stark choices between order and law — which are not, as we fondly imagine, the same thing. Its ill-trained, ill-equipped and understaffed criminal justice system just didn’t have the resources to deliver justice. Killing is a lot easier to do than building capacities for surveillance, investigation and prosecution. Torture thus came to substitute for criminal investigation; the bullet through the back of the head for prosecution and punishment.

The awful truth is this worked: each life not lost in Punjab or Tripura or Andhra Pradesh is a powerful argument for the proposition that the morally-condemnable can also be praiseworthy.

The costs of victory

Yet, these victories have come at an unacceptable price. They absolved governments of responsibility for actions that engendered crisis in the first place: there’s never been a Commission of Inquiry into Prime Minister Indira Gandhi’s sponsorship of religious reaction in Punjab, to cite just one example. They also freed the state of any compelling incentive to change its behaviour. India's police and intelligence services aren't fundamentally better off than they were decades ago. Police forces, the government's own data shows, don’t meet even basic norms. The intelligence services are grossly understaffed and underskilled, with the bulk of staff committed to duties which have nothing to do with national security.

India’s security services may be able to stamp out insurgencies, but not ensure the maintenance of a public culture based on law, the keystone of a democracy. We’re left, thus, with a perpetual-motion machine of killing, unable to stop the republic from dissolving into a state of criminal injustice.

praveen.swami@thehindu.co.in

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