The decision of the Central Bureau of Investigation (CBI) to investigate the role of a special director of the Intelligence Bureau (IB) in the Ishrat Jahan case is an interesting development.
Two things can happen now: first, it could be found that the officer was complicit in sharing false information and colluding with the local police on the fake encounter. If that is proved, then it becomes clear that the IB officials play a direct role in policing without any legal backing.
The government wants us to believe that intelligence agencies are ‘civilian’ without police powers, and that any violation is an aberration. But the Supreme Court in 1997 held that one of the agencies of the State that needs to adhere to court-directed safeguards in matters of custodial interrogation and arrests is the IB. Surely a civilian agency does not attract such checks and balances unless it de facto exercises police powers.
The other possible outcome could be that the IB officer was acting bona fide in providing information on the possible anti-national antecedents of an individual and it was for the police agencies to process the same, and act accordingly.
This comes closer to the utopian model, where intelligence agencies provide well-researched leads on matters of national security and the police acts independently — and responsibly — on it. In such a case, there is no way an intelligence officer could be faulted for doing his/her job.
However, the absence of an organisational charter that can be sourced to some statute (if not to the Constitution) would leave the intelligence operators without any broader legal backing.
In both scenarios, the lack of a legally defined role and responsibility for the IB makes it an amorphous being, capable of abuse, and being abused, alike. Neither scenario augurs well for a constitutional republic that espouses the rule of law.
In the Ishrat Jahan case, the key question is whether the information provided by the IB was false. If the answer is yes, then the encounter being stage-managed stands proved and the IB has much to answer for.
If the answer is a no, then the investigation must confine itself to the role of the police and the actual shootout, without dragging the IB into the criminal proceedings. The IB may still be answerable for the methods and quality of its intelligence gathering.
The intriguing power-play is in the fact that the IB is being investigated by the CBI. Different in terms of their legal sanction and structure, both are rather similar in terms of being headed and controlled by IPS officers. Not many of us would know that the highest ranking officer in the police service is the director of the IB.
The fact remains that drawing the IB into this investigation exposes the gaping hole in Indian jurisprudence with respect to the control and regulation of intelligence agencies.
The existence of legislation in the US (or Britain, South Africa and Canada) has not precluded their intelligence outfits from acting in secrecy.
Indeed, it has legitimised their operations. Such laws aid intelligence agencies in fearlessly discharging their duties in the national interest.
The CBI investigation, moreover, has the potential to alienate intelligence officers, who (rightly) remain faceless in their actions. Such prosecution — if found to be vindicated or slipshod — could result in IB officials playing safe and refraining from sharing information with state agencies.
The DIB has expressed his concern at this latest development, to quell possible unrest among his ranks. But once you sow the wind, you reap the whirlwind.
Aditya Sondhi is an advocate and is appearing in an ongoing PIL relating to the legal status and accountability of the Intelligence Bureau
The views expressed by the author are personal