Motivated censure

To damn selectively the Dravida Munnetra Kazhagam in the Interim Report of the Commission is a travesty of justice.

K. MADHAVAN

I WAS earlier quoted in the press as saying that Rajiv Gandhi was responsible for his own death. This was not what I had said. The relevant part of my signed press release dated November 9, 1997 had read:

If at all, Rajiv Gandhi himself was responsible for what happened, particularly with the scant regard for security which he always had regarding which a full-scale discussion took place in the DGPs' conference which was held in 1983-84 when all the DGPs unanimously expressed the view that the PM's son was the most difficult person to protect in the entire set-up because of his peculiar ways of self driving fast foreign cars, evading security men and disappearing for hours on end.

I was present at that conference as the S.P. of the Central Bureau of Investigation (CBI). What I stated in the 1997 press release is known in law as contributory negligence - which is negligence, to some extent, by the victim himself or herself in a case of accident or death. Very obviously, it was the LTTE which had brutally assassinated Rajiv Gandhi.

IN various countries, when a controversial event of great public importance occurs, commissions of inquiry are occasionally appointed by governments. While some commissions are set up really to get at the truth, very often such commissions are appointed by the Government in power to buy time and evade responsibility for taking any action.

The Jain Commission was appointed and it took up its work when most of the CBI investigation had been completed. Surprisingly, the main task of the Jain Commission was the same as that of the CBI investigation - to find out the facts and circumstances relating to the assassination of Rajiv Gandhi, the criminal conspiracy behind it, and the persons responsible for the criminal conspiracy and the monstrous crime. It is not possible at all to delink a criminal conspiracy from the actual perpetration of the crime. It is a well-recognised principle in law that very rarely does one get evidence of criminal conspiracy per se, which is almost always hatched in total secrecy. Therefore, a criminal conspiracy is more often than not proved by the subsequent overt acts committed by the conspirators. Therefore, to maintain that the Jain Commission was to look into the conspiracy aspect whereas the CBI investigation was to gather evidence regarding the commission of the crime is an impossible proposition.

It was on the night of May 21, 1991 that Rajiv Gandhi was brutally assassinated at Sriperumbudur. Normally such cases of murder are investigated by the State police; it is only at a later stage, in the rarest of rare cases, that the investigation is transferred to the CBI. In the case of the assassination of Rajiv Gandhi, the First Information Report (FIR) was filed by the State police.

Not surprisingly, within a few hours of the assassination, it became clear that the CBI would be entrusted with the investigation. Therefore, with considerable foresight and vision, Vijay Karan, the then CBI Director, convened a meeting of all Inspectors-General of Police (IGPs) and above in the CBI on May 22, 1991. This was at 9 a.m. at the CBI Headquarters in New Delhi. I was also present at the meeting.

D.R. Karthikeyan was not then working in the CBI but was posted as IGP in the Central Reserve Police Force (CRPF) at Hyderabad. Right at the beginning of the meeting, Vijay Karan said that two persons were considered for heading the investigation team and that they were myself and Karthikeyan. My name was ruled out because I was then handling the Bofors case in which the allegation, rightly or wrongly, implicated Rajiv Gandhi. It was decided that D.R. Karthikeyan would head the investigation team. I immediately accepted this as the correct decision. When the selection of the team was being discussed, I suggested that one officer who should definitely be selected was Radha Vinod Raju, IPS, who was then DIG in Jammu and Kashmir and had done extremely well as Superintendent of Police in charge of the Kochi branch of the CBI. Vijay Karan did not know anything about Raju but immediately accepted my suggestion, telephoned the Home Secretary and requested that Raju be relieved from Jammu and Kashmir immediately and asked to report to the Director the same evening. Soon after, Raju was co-opted into the team along with Srikumar, an IPS officer of the Karnataka cadre. D. Raghothaman, DSP, CBI, Chennai, was later made the Chief Investigating Officer of the case.

As soon as it was set up, the investigation team began its work with lightning speed and absolute thoroughness. It achieved excellent results within a short period of time. It quickly arrested the available accused persons and relentlessly pursued Sivarajan, although unfortunately he could not be captured alive - unfortunately, that is, for the investigators.

After concluding the investigation in full, including the criminal conspiracy aspect in its entirety, the Special Investigation Team (SIT) filed a charge-sheet in Chennai against 41 accused persons. No member of any political party in India was cited as accused in the charge-sheet.

The trial of the case is now over and the judgment is awaited (see box). It is significant that during the trial, no worthwhile mention was made by any of the defence counsel or by anyone outside to the effect that any aspect of the criminal conspiracy had been left uncovered by SIT.

The proof of the pudding is in the eating. The proof of the quality and thoroughness of a criminal investigation is more than fully tested in a trial. During the trial in the Rajiv Gandhi assassination case, no accusation whatsoever was made by anyone against any political party as an accused person, be it the Dravida Munnetra Kazhagam (DMK), the All India Anna Dravida Munnetra Kazhagam (AIADMK) or the Congress(I).

Surprisingly, some months after the assassination, the Central Government appointed the Jain Commission of Inquiry, mainly to look into the conspiracy angle. During the fact-finding mission by the Commission, it examined 110 witnesses and took 66 months to produce what it itself has described as an Interim Report. It is this Interim Report that has now raised a storm, with the Congress(I) going for the scalp of the DMK.

Excerpts of the Interim Report were published in the November 17, 1997 issue of India Today. The most striking conclusion arrived at by Prabhu Chawla, the senior journalist concerned, was that "it is curious that Jain has been remarkably selective in his indignation. While at a few places in the report he has reprimanded the Rajiv Gandhi Government at the Centre and its AIADMK ally, M.G. Ramachandran, for the initial softness towards the LTTE, at others he has absolved them of helping the Tigers politically and financially." What Chawla himself was suggesting here was that virtually every political party was soft towards the LTTE. Therefore, to damn selectively the DMK in the Interim Report was a travesty of justice.

It was on July 29, 1987 that the Indo-Sri Lanka Agreement was signed. Hostilities broke out between the LTTE and the Indian Peace-Keeping Force in October 1987. The DMK came to power in Tamil Nadu in January 1989, that is, a year and a half after the Agreement was concluded and fifteen months after the fighting began. One has, therefore, to see what took place during these many months, even if 1987 is treated as the benchmark year in deciding what ought or ought not to have been done vis-a-vis the LTTE.

It is extremely relevant to note that even according to the Jain Commission's Interim Report, 1989 signified the "perpetuation of the general political trend of indulging of Tamil militants on Indian soil and tolerance of their wide-ranging criminal and anti-national activities... LTTE activities of arms smuggling, abduction of Indian citizens and officials and intimidation of law enforcement machinery were tolerated." Therefore, even according to the Jain Commission, what the DMK did (if it did so) was merely to continue what everyone else did earlier towards the LTTE, even after the hostilities broke out. Why then attempt to damn the DMK while exonerating the others?

The unkindest cut of Justice Jain lies in indicting not merely the DMK but the entire people of Tamil Nadu by asserting in the conclusions presented in Volume VII that "the assassination of Rajiv Gandhi would not have been possible without the deep nexus of LTTE operatives with the Tamils in Tamil Nadu..." This observation, to put it mildly, is chauvinism in the extreme.

It is well-known that it was during the regime of Indira Gandhi that the encouragement of LTTE elements started in India. The organisation's cadres were given training at various places in Tamil Nadu and were reportedly also given arms and funds. This continued for some time during the regime of Rajiv Gandhi. The turnaround came in 1987. A friend turned foe is worse than a traditional enemy. Bhindranwale in Punjab is a similar standing example from the period 1980-84. The monster Frankenstein reappears regularly in history.

In any criminal case, the facts relating to the crime have to be appreciated by delinking them from other facts that may be related to the facts at issue in the case but are otherwise irrelevant to the case. To give a simple example, if there are two close friends and if one of them commits a murder without the knowledge or connivance of the other, it is a fallacy to involve the innocent person also in the murder - solely because he had been a friend of the murderer prior to the murder. It is this trap that the report of the Jain Commission has wittingly or unwittingly fallen into. Even assuming, without making an accusation, that the DMK had sympathy for the Tamils and the LTTE, it is grievously wrong and logically fallacious to conclude therefrom that the party had a hand in the assassination of Rajiv Gandhi.

An observation about the actual functioning of intelligence agencies in India. The proclaimed purpose of setting up such agencies is to gather intelligence about anti-national elements and terrorists and evolve measures to counter espionage by foreign agencies in India. It is not their job to find out what the Opposition parties are doing in the country. Such work, which is, in fact, being done by them, is illegal. In spite of this, more than 50 per cent of the work now being done by such intelligence agencies in India, including at the State level, has been to find out about the activities of domestic Opposition parties. We are doing nothing about this. It is time that the Supreme Court and the High Courts took up this matter and found out what the intelligence agencies of India have been up to, and put a check on their illegal activities.

Another aspect of the functioning of intelligence agencies in India is that their reports remain solely in Government files in the Ministry of Home Affairs and are not subject to the test of examination and cross-examination in a court or elsewhere, as is done with a CBI report. Any intelligence agency can build up a voluminous file making a saint out to be a villain or vice versa. Therefore, to base any conclusion in a criminal case on the reports of intelligence agencies would lead to gross injustice. The legal principle of audi alteram partem (hear the other side), which is one of the principles of natural justice, is violated by coming to conclusions solely on the basis of reports of intelligence agencies.

The CBI investigation has brought out fully the truth relating to the criminal conspiracy and the assassination of Rajiv Gandhi. To continue a fishing expedition and allow mudslinging on the basis of reports of intelligence agencies and selective damnation is extremely dangerous.

The report of the Jain Commission has arrived at various other wrong conclusions. They concern, for example, the roles played by V.P. Singh, Chandra Shekhar and P. Chidambaram. In the case of V.P. Singh, the Interim Report of the Commission contains the following observation:

"It is unbelievable that V.P. Singh could be swayed by the opinion of the security and bureaucratic experts."

A Prime Minister is expected to accept and act on the advice of such experts. This is what all Prime Ministers almost always do. What was wrong in V.P. Singh doing so? P. Chidambaram was one of the most genuine and loyal friends and supporters of Rajiv Gandhi and had nothing to gain but everything to lose by the demise of Rajiv Gandhi. The Jain Commission's remarks or allegations against him, and for that matter against Chandra Shekhar, are unwarranted.

K. Madhavan is a retired Joint Director of the CBI and a practising lawyer. He became well-known for his investigation of the Bofors case. A contributor to Frontline, he won an award in 1993 for an investigative contribution to the magazine.