Unhealthy precedent

The controversy surrounding a major confrontation between India’s premier investigating agency, the Central Bureau of Investigations (CBI), and the nation’s internal intelligence agency, the Intelligence Bureau (IB), which has been aired in the media emerges out of the Ishrat Jehan case of Gujarat in which the woman and her companions were shot dead by the Gujarat Police in what is claimed to be an encounter between a terrorist group of which Ishrat Jehan was a member, whose objective was to target the chief minister of Gujarat personally and the police which took counter measures.

The source of information on the basis of which action was taken is said to be an intelligence report prepared by an IB officer in which the connection between Ishrat Jehan and her companions with a Pakistan based L-e-T terrorist group was mentioned.

CBI is investigating the case on the direction of the Supreme Court. One of the suspects, whom CBI wants to interrogate, is the Special Director, IB. The subject of investigation apart, let it be understood that CBI is exercising police powers in this case, whereas IB is governed by its own mandate which is to do counter espionage work within India, neutralise espionage by hostile powers within the country, obtain information about likely threats to law and order, internal security and the integrity of the country and to keep a watch on all anti-national activity which can result in harm to India.

In performing police functions, the CBI has to follow in substance and in practice the provisions of chapter XII, Criminal Procedure Code (CrPC) and for the purpose of proving a case, it has to function according to the provisions of the Indian Evidence Act. Anything that CBI does in this behalf has to follow the rules of evidence, including relevance and admissibility of evidence and its credibility. Chapter XII, CrPC is very well drafted and any investigation carried out under its provisions is bound to be just and credible. If evidence is planted or falsely generated, the rules of evidence would expose this and a trial court would reject the evidence.

The IB does not have a mandate to investigate offences. It is not governed by the rules of evidence as prescribed by the Indian Evidence Act; it does not have police powers and, therefore, does not have to follow the procedure laid down in chapter XII, CrPC. It has no power to prosecute and, therefore, it has no interaction with courts. At the same time, it has at its disposal agents who can obtain human intelligence, it has electronic devices for intelligence collection, it has friends and well wishers and, perhaps, double agents to obtain information and it has other sources, primary and secondary, through which information is collected which might be of interest to India.

The world of intelligence and espionage is grey, hazy and all outlines are blurred. The world of investigation is aimed at bringing into sharp focus facts which can be proved in a court of law, to create a realistic image of a criminal, bring the criminal to justice and by presenting proof of guilt, obtain a conviction. We now, therefore, have one world which is spooky and with blurred outlines, with a combination of fact, fiction and imagination and, through analysis, a course of action which can neutralise adverse influences and factors.

This is so vastly different from the world of investigation that the two must be kept resolutely and definitively apart. Investigation has to live in a glare of public scrutiny in order to prove its credibility, but intelligence must at all times be anonymous and secretive.

Because intelligence officers work in a grey area, because their identity and outline must be hazy so that individuals are not compromised, all intelligence agencies work in the background and try and merge into it. The police and CBI seem to delight in discussing in public every stage of investigation. An intelligence agency by definition must remain in the dark, must not discuss its operations and must pass on information which can be acted upon.

An intelligence agency works on the twin premise of “need to know” and “deniability”. This means that only those who need to know should be privy to information and at all times intelligence operatives and agencies should be in a position to credibly deny any statement attributed to them. Under no circumstance should an intelligence agency or an individual officer reveal sources because a compromised source in the world of intelligence is as good as a dead source. That is why no intelligence agency ever acknowledges as its own any of its agents who have been caught and charged with espionage. This is a part of the doctrine of deniability and it must be respected.

In the Ishrat Jehan case, the CBI is attempting to question the Special Director of IB, with a view to making him an accused, on account of some intelligence report he is stated to have given. By its very nature intelligence report has to be confidential and it is the job of IB and CBI to respect this confidentiality. Nor can such a report be used to incriminate an IB officer.

This would be contrary to the provisions of Article 20 of the Constitution which prohibits an accused person to be compelled to be a witness against himself, which is what revelation of the contents of an intelligence report would amount to. Such a document is not a confessional statement. It is not a document in the public domain and it is not a confession and in fact it is not a document which can be admitted as evidence at all under the Indian Evidence Act. If there is a case against the IB officer concerned it would have to be proved by evidence other than the intelligence report which has allegedly been made by the officer concerned. It is certainly not a public document as defined by section 74, Indian Evidence Act.

There are certain fundamental questions which are a cause of concern. The IB is charged with ensuring that the security of the state and the integrity of India is not jeoparadised on account of the actions of anti-national and anti-social elements. This can only be done by penetrating anti-national bodies and collecting intelligence on the basis of which they can be neutralised. It is acknowledged that because this intelligence does not meet the test of proof as laid down in the Indian Evidence Act, a great deal of it may be misinformation deliberately planted by the enemy, information which has an element of gossip and information which may be dated and, therefore, no longer relevant.

To let the blame be on an IB officer because on verification the information turned out to be not very credible is ridiculous because any operational agency would be foolish if it paid no heed to intelligence reports. The report and the officer both must enjoy anonymity.

In the Ishrat Jehan case, the CBI is obviously under the twin pressure of a government hostile to Narendra Modi and the Supreme Court which pictures itself as St. George on a white charger out to slay the dragon of communalism in Gujarat. Therefore, CBI seems to have been swayed from the path of honest investigation as it is required to do under chapter XII, Cr.P.C. and has preferred to follow the trail of red herrings drawn across its path. This has led to direct confrontation between CBI and IB, which does not bode well for the future of India’s security.