Our surveillance outfits are often used by those in power to serve vested interests. But their inputs are not admissible in court unless backed by solid evidence such as documents and testimonies
By Ajith Pillai
How authentic are inputs filed by intelligence agencies? Can these be used as evidence in a court of law? At the outset, it must be underlined that it would be wrong to make sweeping generalizations on the accuracy or otherwise of information that originates from the IB, RAW, military intelligence or any other such agency. However, as any lawyer will vouch, information that is not backed by material proof or the testimony of a witness cannot constitute evidence before the eyes of law.
In fact, it is not the mandate of intelligence agencies to investigate or to prosecute. As a former IB official said to India Legal: “No intelligence agency has the powers of the police to prosecute so it also has nothing to do with producing evidence in court. IB and RAW operations are not covered by rules laid down under the Indian Evidence Act and rightfully so because these are agencies which collect and collate information from the ground. What they gather is unverified and sometimes partially accurate because information comes from varied sources, including double agents and insiders. This is why intelligence alerts occasionally prove to be false alarms.”
GREY AREA
Intelligence gathering, he and other officials aver, is therefore a grey area and not gospel truth. Which is why, they say, the media must be careful while handling intelligence leaks. This was colorfully illustrated by former advocate-general and senior Supreme Court lawyer Soli Sorabjee when he was asked during an interview whether intelligence inputs must be factored in before selecting judges to the higher judiciary. His response was telling: “The IB can be asked to give an input, but it can’t be the final input. Let me tell you a true story. There was a candidate for judge and the IB said he drinks so much he is known as a boozer. I said how can you say so? So I checked. It came out that this man had never touched liquor in his life but boozer was the nickname given to this man by his friends. This is just an illustration. Whatever IB says, you must take it with a big pinch of salt.”
Human rights activist and lawyer Vrinda Grover is of the view that what passes off as evidence in the media, courtesy IB reports, never figures in the courts. She told India Legal: “Take the case of the IB report on Ishrat Jahan, labelling her an LeT operative. There is so much noise about it in the press and among politicians. However, it does not figure anywhere in the chargesheet filed in the court. This is simply because intelligence inputs do not constitute admissible evidence unless an investigation corroborates what it alleges.” According to her, intelligence reports largely serve to “sensationalize cases in the media, demonize people and are used by politicians to settle scores”.
Grover, who represents Ishrat Jahan’s mother in the alleged fake encounter case in which her daughter was killed, says the IB report in question was based on a 2004 report in Ghazwa Times, a Lahore-based publication, which stated that Ishrat was linked to the LeT. “You can’t take a magazine report without any substantiation as evidence. But the IB report controversy has changed the public discourse from whether Ishrat was bumped off in a fake encounter by the police to whether she had any links to the LeT,” she said.
Added Delhi-based criminal lawyer Rebecca John: “If the IB produces concrete evidence, it can be used by the investigators in court. But that is rarely the case. Their feedback may be indirectly helping the investigations, but in my years as a criminal lawyer, I have never, ever seen an intelligence official depose in court. In law, evidence has to be backed by documents or by testimony.”
KEEPING TABS
Since intelligence agencies keep a watch on anything which impinges on national security, they have a wide and ill-defined canvas of operation. This makes them convenient tools to be used by those in power. It is an open secret that a sizeable section of the IB’s manpower is used by politicians in government to keep tabs on political rivals and to gather evidence on unfriendly journalists, social activists, student leaders, lawyers and bureaucrats. The operation involves following suspects, tapping their phones and electronic surveillance.
This is not the job of intelligence agencies. KS Subramanian, former DIG of Tripura and director of the research and policy division of the Union Ministry of Home Affairs, said that undertaking tasks it should not be doing is the bane of the IB. “The Intelligence Bureau, owing to lack of a standard protocol of operations and accountability, often oversteps its limit…. Unless the government is serious about laying down a charter of duties for the IB, its reports will always be used by vested parties to further their own interests.”
A case in point is the reported request by the All India Institute of Medical Sciences (AIIMS) to the government in November 2015 seeking the services of the IB to identify the source leaking details of irregularities in the institute to the press. According to a former IB official, this is typically not the job of intelligence.
“AIIMS should have approached the police, the Press Council or the courts if the reports were untrue or had an informal meeting with the editor of the paper concerned. Instead, it asked the IB to carry out an investigation that it is not supposed to handle. The agency is roped in to primarily name the people the authorities suspect. This is something the police will not do without evidence and should they manufacture it, there is the risk of being caught out in court. The IB, on the other hand, is not obliged to produce evidence.”
Subramanian talks of how the fuzzy area of national security is used to justify all IB actions. “The concept of ‘national security’, uncritically used by the IB in its classified reports on various subjects, needs to be defined properly. The IB, a secret intelligence agency headed by generalist officers of the Indian Police Service, often strays into subjects without the required expertise.”
ATTACKING NGOS
He also referred to the leaked 21-page IB report of 2014 about NGOs like Greenpeace inflicting economic harm to the nation. The total damage was computed at 2 to 3 percent of the GDP—an incredible Rs 2.5 lakh crore! But the foreign funding NGOs received was a miserly Rs 55 crore. Surely, the Rs 2.5 lakh crore loss was inflicted with very minimal foreign contribution! But the IB report was cited by the government to launch a series of investigations and raids on NGOs and in the process, many organizations doing good work were wrongly targeted and tarred as being anti-national.
Subramanian said: “The economic impact of NGO activities in the country is best examined by the concerned ministries such as the Ministry of Home Affairs, Ministry of Environment and Forests (MoEF).”
The IB has a record of being used and for guiding police investigations at the behest of vested interests in what are called “joint operations”. In the 90s, the IB spun a fantastic story about an imaginary spy ring involving senior ISRO scientists D Sasikumaran and S Nambi Narayanan. The script was deserving of a Bollywood script with a Mauritian Mata Hari thrown in. Both scientists were arrested in 1994 amid much media attention. The case against them was qua-shed two years later by the Supreme Court. While dismissing the charges against them, the apex court came down heavily on the IB and the Kerala police and accused them of framing the two scientists. The CBI, which later investigated the case, had sharp observations about the officers of the intelligence agency, including its director for “sending unverified reports to the Prime Minister and the Home Minister”.
Why did the IB tarnish the two scientists? The buzz was that the agency was working at the behest of European and US interests who wished to derail India’s cryogenic rocket project which was moving at a fast pace and threatened to end ISRO’s dependency on foreign launch vehicles. Nambi Narayanan and Sasikumaran were key scientists involved in the project. The IB could not have acted without the knowledge and approval of the then Narasimha Rao government.
WRONG NUMBER
Similarly, in May 1988, an IB-hatched plot saw Captain BK Subba Rao, a nuclear scientist, being arrested under the Official Secrets Act by the police at Mumbai’s Sahar Airport just as he was boarding a flight to New York. Rao was labelled a spy who was sneaking out India’s nuclear secrets to the West. Years later, when his case finally came up in court, it was revealed that the top secret document he was supposedly taking out of the country was his doctoral thesis submitted to IIT. He was apparently targeted by higher-ups in the nuclear establishment. Reason: Rao had been sent to assess the nuclear submarine project at the Bhabha Atomic Research Centre and had pointed out discrepancies in the design which left many top scientists red-faced and humiliated.
According to lawyers and rights activists, there have been several cases of citizens being arrested under the draconian Official Secrets Act with little or no evidence. In most of the cases, intelligence reports form the basis of arrests but the police find it difficult to produce evidence in their charge-sheets and most of those arrested are let off by courts.
More accountability and a better definition of national security is perhaps what is required to make intelligence agencies more credible. If not, national interest and security may often be conveniently linked to the vested concerns of politicians and those in power. And what should be categorised as information sans evidence is likely to surface in the media with the ring of authority under the tag—Intelligence Report.