THE first legal breakthrough in the Samba spy case came on July 8, 1994, when a full bench of the Delhi High Court held, on the petition of one of the accused, Major N.R. Ajwani, that the order of termination of service is justiciable (Vol. 55 (1994) DLT 217). Section 18 of the Army Act says, "every person subject to the Act shall hold office during the pleasure of the President."
On November 17, 1994 the Supreme Court dismissed the government's special leave petition and ruled: "All that the impugned judgment holds is that an order passed under Section 18 of the Army Act can be challenged on the ground of mala fides. This statement of law is unexceptional. However, it is for the person who challenges it on the ground of mala fides, to make out a prima facie case in that behalf. It is only if he discharges the said burden, that the government is called upon t o show that it is not passed in the mala fide exercise of its powers. While doing so, the government is not precluded from claiming the privilege in respect of the material which may be in its possession and on the basis of which the order is pass ed. The government may also choose to show the material only to the court." ((1996) 9 S.C.C. 406).
However, rather unusually, the court recorded in para 3 of its order: "The appellants (the Union of India) are permitted to withdraw from the appeal-memo, pp. 221 to 232 which according to the learned Solicitor-General have been annexed to the memo inadv ertently."
Indian Express revealed on December 28, 1994 what this was about. "A confidential internal note at the highest level of the Indian Army has acknowledged that there is a lack of evidence against some of those court-martialled in the notorious Samba spy case. 'It may be difficult for us to justify our action to the courts,' the advisory note concedes. 'The relevant records, if placed before the courts, would not convince the courts that the decision to terminate the services of the Army officers co ncerned was rational, based upon sound and reliable material and that it did not suffer from mala fides'."
The note was meant for the Additional Solicitor-General. "In a bizarre mix-up, the confidential note got attached to the copy of the written submission to the court and was presented to the three-member Supreme Court Bench of Justices P.B. Sawant, G.N. R ay, and S.B. Majumdar, hearing the said appeal of the Union government against the decision of the Delhi High Court. Once the blunder was discovered, red-faced lawyers asked the Bench's permission to withdraw the note. The Judges gave their consent and t he note was technically treated as withdrawn, and it was agreed that the opposing sides would not refer to it."
In the wake of the Supreme Court ruling came a series of disclosures. Indian Express on December 4, 1994 published an article by T.V. Rajeswar, former Director, I.B.. He revealed: 'The Director, Military Intelligence, who was handling the investig ation was reluctant to let the Intelligence Bureau participate in the interrogation of the suspects even though there were clear standing instructions that the IB should be associated in the interrogation of the Army suspects in episonage cases."
He relented towards the end of 1979. "Eventually a joint team consisting of representatives of IB, RAW and the J&K Police, headed by a IB Deputy Director, looked into the case thoroughly and recorded the evidence. The IB Deputy Director, Mr. V. K. Kaul, was an expert in counter-episonage investigations, (He later headed the Bureau of Police Research and Development in the Home Ministry).
"The interrogations were carried out in the Delhi Cantonment in the presence of Army officers as designed by the MI Directorate. The team after a thorough job of investigation came to an unanimous conclusion that the case built up by the Army authorities was totally suspect." Yet, the Army continued to proceed against the remaining suspects.
IN February 1980, when he became Director, I.B., Rajeswar was asked by Prime Minister Indira Gandhi to examine a petition by the dependents of the court-martialled Army officers. "After examining the files carefully, I discussed the case at length with t he head of the joint team, Mr. V. K. Kaul, and it was clear to me that there was something very seriously wrong in the case. I sent a detailed report to Mrs. Gandhi stating that the entire spy case was doubtful, unsubstantiated and unreliable."
The Army opposed a review and she left it at that.
In 1986, he wrote to Rajiv Gandhi, who ordered a review. Hence Captain Ranbir Singh Rathaur's release and grant of gratuity.
The Times of India of December 5, 1994 carried a report quoting Sarwan Dass' admission of guilt. "I had not even seen their (Rathaur and A.K. Rana's) faces. I had not even heard their names. I implicated these officers and others because I was for ced to do so."
The report also quoted V.K. Kaul's remarks: "Why did this huge Army fail to deliver justice to their own men over such long period of time?" Why, indeed?
As Deputy Director, I.B., V.K. Kaul met Rathaur and found "his ears were swollen up like a ball. He was stammering and he looked dazed. When I asked the Army officials about him they told me that Rathaur is a boxer and he got injured" (The Times of In dia, December 7, 1994).
Sarwan Dass has given the names, as The Hindustan Times of January 15, 1977 reported. "He was interrogated by the IB Military Intelligence and told them that apart from Aya Singh (a gunner in the Army) no one else was involved in the episonage act ivities. But over a period of two years, while he was in the custody of MI Officers, Sarwan Dass claims in an affidavit signed in December 1984, he was tortured and made to name several others. 'Pursuant to inhuman torture by Capt. Sudhir and Maj. Jolly, I broke down and agreed to write whatever I was asked to... I falsely implicated one Gunner Banarasi Das, Gunner Baburam, Gunner Sriram, N/Sub. Daulat Ram only to satisfy Capt. Sudhir and Maj. Jolly who kept on insisting that I should implicate more and more personnel, Sarwan Dass says in his affidavit."
On December 6, 1996, the hero of the 1965 war, Lt. Gen. Harbaksh Singh, broke down and wept at a function in New Delhi to release Lt. Col. Ved Parkash's book The Samba Spying Case. "I am shocked and ashamed at the level of degeneration in the Indi an Army which we had raised... Here we have an example of officers being meted out third degree treatment by their own colleagues." V. K. Kaul also spoke on the occasion: "Samba scandal was the most gigantic fraud to have been perpetrated on the nation i n which many Army officers were wrongly convicted for a crime they had not committed." He ridiculed the Army's studied silence despite the revelations (The Pioneer, December 9, 1996).
Sarwan Dass even appeared at a press conference in New Delhi on December 19, 1994 along with Rathaur and Rana and said that over a three-year period he had been made to implicate officers whom - he had never seen or met, by officials of the MI. He was tr eated well and paid his full salary even during his incarceration (Indian Express, December 20, 1994.)
TWO other cases deserve note. One concerns Major Ajwani who served as Judge Advocate-General in the Army for 16 years. This refugee from Pakistan was accused of spying for it in the company of Rana. He was at the Samba Brigade HQs to conduct a murder tri al of Army officers during his alleged stay in Pakistan.
It was pure vendetta. "In July-August 1978, in my capacity as Judge Advocate-General in the Northern Command headquarters, I was conducting a trial of court martial against gunner Om Prakash on charges of espionage. When I refused to help the military in telligence build up the espionage case by refusing to admit Om Prakash's oral confessions."
He was arrested on January 23, 1979 and detained at Deolali for over a year. When witnesses refused to give false evidence against him, the GCM was dissolved; he was sacked; but the order was altered to one of termination of services. He received his vin dication, like others, only on December 21, 2000.
So did Major R. K. Midha. His crime was to have refused to cooperate in the disposal of the corpse of Havildar Ram Swaroop. On April 16, 1997, Justices Mahinder Narain and Lokeshwar Prasad of the Delhi High Court directed the Army to produce medical reco rds of the Havildar's alleged custodial death in October 1978. It was on a petition by his widow Angoori Devi, assisted by Major Ajwani, who has rendered yeoman service to fellow victims, courageously and generously.
Major Midha in his sworn affidavit alleged: "I say that the said Havildar was murdered by Major (S.C.) Jolly and Captain Sudhir (Talwar) and their associates while they were interrogating him. The said Major Jolly and Capt. Sudhir are the same officers w ho interrogated (and tortured) all those who were proceeded against in Samba spy case." The affidavit said, "I (Major Midha) as the Commanding Officer of the deceased told the court of inquiry (on the death of the Havildar) that death had occurred before the body reached the base hospital and that it had 39 injuries." However, the findings of the court of inquiry, where Maj. Midha produced the letter of the doctor stating about the injuries, were rejected by the military intelligence and a fresh court o f inquiry was instituted.
Maj. Midha alleged that Brigadier T.S. Grewal asked him to tell the second court of inquiry that the Havildar was a drug addict, but he refused to oblige the senior official and told the court of inquiry that Havildar Ram Swaroop was not a drug addict at all. Consequently, he said, the second court of inquiry was dissolved and a third one was instituted. This time he was allegedly threatened by one Col. Solanki to tell the court of inquiry that the death of Havildar Ram Swaroop was due to drug addiction , or face the consequences. On his refusal to do so, Maj. Midha said in his affidavit that he was falsely implicated in the Samba spy case. Angoori Devi's petition is due to be heard by the Delhi High Court in March 2001.
The court's judgment of December 21, 2000 was concerned with the limited issue of whether the appellants had proved mala fides. On January 11, 1980, 11 of the Samba accused were dismissed from service without a trial. The pattern in case after cas e was the same - court martial's dissolution; dismissal order rescinded and altered to termination of service. The cases were, fortunately, heard together - Rathaur's, Rana's, Ajwani's, Midha's and others'. The court remarked: "But for the fact, by sheer coincidence all the cases came to be argued before us we would in the normal course of events would not have been inclined to consider the case put forth on behalf of the officers, in case finality had been reached on an adjudication by this court on fa cts after the perusal of the records maintained by the respondents in respect of the concerned officers. That has not been done. Not only now, on the earlier occasions also, the respondents had not taken care, totally ignoring their constitutional duty t o this court, to produce the relevant records."
The court's censures were appropriately strong. "The respondents think that they are the law unto themselves and whatever they say must be accepted as the last word in the matter. The whole of the bundle of facts in the instant batch of cases would appea r to be a pot boiler to project the image of the Military Intelligence Directorate, leaving us at the end with a cliff hanger without any iota of materials to form an opinion about the involvement of the appellants and the petitioners."
It said: "Some of the officers in the Intelligence Directorate at the relevant time apparently thought that they could manipulate the needle of suspicion against any of the officers they had chosen to make complaint of espionage had miserably failed to f ollow the law.... We are of the view that the respondents have failed miserably to show that they had acted in accordance with law in initiating proceedings against the officers, holding GCMs against the officers, concluding it in two cases only and conv icting them and that too without any shred of evidence. In other cases, on realising that they were likely to be acquitted like the GCMs were dissolved and proceedings were dropped. Without any basis, without any reason and without assigning any causes t he services of the officers were dispensed with. We are clearly of the view that all the proceedings taken against the officers are completely void in law and all the proceedings are liable to be annulled."
The orders of termination and the sentences by the two GCMs were set aside. The Union of India and the Chief of the Army Staff were ordered to "grant consequential reliefs to all the officers including all monetary benefits."
Speaking to the press in Mumbai on December 28, 2000, Rathaur, Ajwani and Rana called for legal action against Brigadier T. S. Grewal; Lt. Col. R. P. Madan; Major S.C. Jolly; Major P.S. Solanki and Captain Sudhir Talwar who "made life hell for 53 innocen t persons" (The Times of India, December 29. 2000).
These officials directly interacted with the Samba case accused. At the apex were two men of high repute - Chief of the Army Staff General O. P. Malhotra (June 1978-May 1981) and Lt. Gen. H.N. Kaul, DMI. No one questions their personal integrity. Obvious ly, they relied on subordinates, uncritically, who convinced them that it is Pakistani spies they were handling. The danger to the rule of law comes from men of integrity who neglect their duty by the law for "patriotic" reasons.
Nothing short of a full inquiry into the conduct of the officials named by the three victims on December 28, 2000 will suffice. They owe a duty to account. Gen. O.P. Malhotra and Lt.Gen. K.N. Kaul owe a duty to speak out. Silence is not an option.
