Why the Ishrat Jahan case frightens our commentators
The refrain of dire times calling for dire strategies, including torture and extra judicial violence, sweetly labeled as “excesses” is vacuous, even if it is in vogue these days
Manisha Sethi Delhi
On a September morning in 1995, Jaswant Singh Khalra was washing his car outside his Amritsar home. His wife had just left for the library where she worked.
Khalra had spent the last few months perusing the cremation records of the three crematoria in Amritsar, reflecting on the vast quantities of wood that had been purchased, travelling around the countryside, speaking to families whose sons had gone missing, peering at the death and birth registries in the municipal office, meeting with doctors whose task it was to conduct post mortems at the civil hospitals, and comparing these with news reports on encounter killings. There was only one conclusion he could reach. That men, whose numbers ran into thousands, had been burnt to cinders in these cremation grounds. Their bodies sometimes piled one atop each other. Khalra’s enquiries had hardly gone unnoticed. He had been warned several times, in particular by the Tarn Taran SSP, Ajit Singh Sandhu, who had threatened to disappear him.
As he washed his car that morning, a Maruti van glided into the street, and armed commandoes of the Punjab police pulled him in. His body was never recovered.
More than two years later, SPO Kuldeep Singh gave a statement to the CBI – which had been directed by the Supreme Court to investigate Khalra’s disappearance and his findings of the dead and disappeared – that Khalra had been held secretly at the Jhabal Police station and had been interrogated at the home of SSP Sandhu by KPS Gill. Kuldeep Singh testified that Khalra was shot dead in the police station on the evening of 28th October and his body dumped in the Harike canal. The killing was followed by a night of revelry at the Irrigation department guest house. SSP Sandhu and KPS Gill were guest of honours.
Piara Singh whose Maruti van had been requisitioned for an operation by the Jhabal police station in September, testified to the CBI. Kikkar Singh, who had been held in the Jhabal Police station in late October also testified that he had been witness to Khalra’s torture at the police station.
But then, the CBI dropped its star witnesses pleading that their statements were not substantiated by material evidence. Kikkar Singh was implicated in five criminal cases. Kuldeep Singh was forced to lodge a case of bribery against Khalra’s widow.
The grisliness of this dark phase of history, when a brutal force hunted down men – sometimes active militants, but also their former school mates or playmates, neighbours, cousins, brothers, fathers who had never taken up arms – in the fields and the villages, in the darkness of film theatres and in the market squares in broad day light, has been chronicled in the report, Reduced to Ashes. Prepared by the comrades of Jaswant Khalra, this report results from unmet promise of Supreme Court directed enquiry into mass disappearances and deaths when Khalra’s widow filed a writ of habeas corpus about her disappeared husband. A well-read man, Shekhar Gupta, is bound to have read it. Why then does he ask, nay taunt, “But nobody asked how many suspected terrorists they [Punjab police] put through ‘due process’ ”.
He knew surely that they asked. And paid for it with their life.
“And when questions were raised about fake encounters of killings of innocents, the entire government system colluding in never letting the truth out, even when the Supreme Court had wanted it.”
Shekhar Gupta writes this with a sense of nostalgia. For the lost times when the system worked to frustrate every move to uncover the truth. The Congress which signed the license to kill; the Akalis who promised to institute a Truth Commission into mass disappearances but reneged when they came to power; the BJP which dared anyone to touch the ‘heroes’ of the anti-insurgency ops; the CBI which let the enquiry collapse quietly; the NHRC who was tasked with uncovering the extent of mass crimes but settled for Rs one lakh each for families for 18 disappeared; the security establishment whose symbol Gill became. (Tavleen Singh was doing exactly what she is doing now: railing against “the human rights wallahs”). How they all worked together like a well-oiled machine, bound by the pact of silence. The pact of the State against its people; the pact between the political rulers and the agencies. The pact of impunity as national security.
Today, the Ishrat Jahan case threatens to seriously damage that pact and the privileges of impunity that accrue from it. Senior editors of apparently liberal persuasion, columnists, commentators, security experts, are all therefore out in full force. Some are downright crude. The poster boy of police reforms, seen as a panacea to all that afflicts our police forces, Prakash Singh, writes that human rights of terrorists (no, he hasn’t heard of the terms ‘alleged’ or ‘suspect’) have to be circumscribed by societal rights. If this is not seditious, what is? This outright and brazen call to violate the Constitution and the Law of the land, which he must presumably have sworn to in service.
And then there are those who have made sophistry their trade. Their arguments usually begin thus: killing and torture is bad. It’s terrible that Ishrat was killed. No, encounters are not permissible. But.
Gupta writes: “You can safely say that our intelligence past hasn’t exactly been either ineffective or incompetent, nor would it pass with flying colours if subjected to the legal/ moral scrutiny of the Ishrat Jahan case.” And Swami rues that “Our Intelligence won’t survive it”.
And that is the problem. More than anything else, it is Ishrat’s sweet, demure 19-year-old innocence that holds up the mirror to the grotesque vision of the national security state. The exacting moral and legal standards that Ishrat Jahan demands are simply an adherence to the principles of the Constitution. Is it too much to ask for?
Apparently, it is. If you thought that the Constitution was the basis of your Republic; if you believed that the rule of law underlies the idea of Republic, you have been utterly wrong. We are now being told that the pillars of our Republic have been and will be: “Gun-running. Bribery. Killing.” One could direct the author to an undergraduate text of Political Science so that he can brush up his understanding of ‘Republic’. But one would do so, if the author suffered from ignorance rather than hubris. “(O)nly those who never exercise power have the luxury of moral pieties”, he writes, placing himself firmly on the side of those who exercise power and lack of morality. The powerful will run the country according to an amoral pragmatism, and those who lack the power, who will be at the receiving end of this power, can feel squeamish all they want. It makes no difference.
The same author has recently also advocated torture.
“Evidence of the successes or failures of torture is, of course, hard to come by. Few will confess to engaging in torture—and the testimony of those who must necessarily be treated with caution, either way. For as long as torture remains illegal, and hidden away, there’s simply no empirically-robust way of knowing whether it works or not.”
The clamour for legalizing torture is hardly new or novel. And it often comes wrapped in a moral or a higher philosophical foil. The ticking bomb has been presented as a moral dilemma but has been called out for the bluff that it is. (See for example)
But to say that it should be legalized in order that we may empirically measure its success – or failure – takes it to another level. How is the success rate to be measured? Through careful calibration of pain induced and the responses evoked? Or by drawing graphs and charts with pain and responses as variables?
Not too far back in history, we have indeed had these experiments: the Nazi regime was notorious for its medical pain trials; and immediately following the end of Second World War, the US Navy sanctioned an interrogation research called Project Chatter (experiments involving injecting drugs which would bring forth chatter), which was the precursor to a string of such experiments.
It was said to be involuntary but ‘painless’ way of eliciting information. The FSL at Bangalore had been conducting its own Project Chatter for years till a scandal dethroned the notorious Dr. Narco (Malini) and a Supreme Court judgement brought it to a grinding halt. More painful ways can be found in the torture chambers of the ATSs and Grey Hounds, with their paraphernalia and contraptions of belts, chairs, gases, insects and screw drivers.
Project Chatter used human beings and animals to experiment upon. Narco analysis, rarely recognized as torture, reduced humans to the animal state.
Speaking of animals, a new phrase has just been introduced to the existing discourse on extra judicial violence: “controlled killing”. I have little doubt that the process which Shekhar Gupta describes –“where you use moles and plants to lure your targets into a trap and then put them away” – existed and still thrives.
Swami, with his penchant for theatricality, dramatizes the scenario by introducing his own cast: c1 and c2, unnamed operatives of the Lashkar forced into submission and cooperation by the IB, which culminated in the killing of Ishrat Jahan.
But the new terminology itself seeks to rehabilitate extra judicial violence into the domain of the acceptable, the normal. By placing controlled killing in a grey zone between due process and fake encounter, Gupta seeks to give it a veneer of respectability, even a faux legality. It is not impulsive violence of the undisciplined. It is carried out with precision, accuracy, planning. It is violence in good faith and for the greater good.
Even for someone familiar with literature on violence, death sqauds and genocides, ‘controlled killing’ will be an odd, unfamiliar phrase. And that is because it has never been used for human beings. It is a term used to describe a less brutal, more humane way of slaughtering animals and poultry. It is a technique that is advocated by PETA over the electronic immobilization traditionally followed by the American poultry industry.
Extra judicial violence must be condoned, it is being drilled into our ears, because of the collapse of our judicial system.
This is an argument that’s not new. It was deployed to sugar coat the disappearances in Punjab – and deaths, the bodies fished out from its numerous canals, half eaten by crocodiles, or sometimes just bones, which were washed off as afar as Rajasthan. This argument forgets that Punjab had been placed under an exceptional legal regime – the NSA, AFSPA, and the draconian TADA, which inverted the principles of natural justice shifting the burden of proof to the accused, allowed admission of custodial confessions, secret trials even in the absence of the accused.
That such few militants were prosecuted and convicted arose from the preference of the security forces for quick fix gun justice over the more painstaking investigative and police work.
“Law, order and justice, aren’t the same things. In war, sometimes one can have the one or the others”, says Swami.
It reminds one of the legendary line scribbled on shops that sell ‘import reject’ cloth material: “fashion ke is daur mai guarantee ki umeed na karein” (Please do not expect guarantee in this era of fashion). The guarantee of Constitutional safeguards has been sacrificed to the reigning fashion of war on terror.
But it’s a war in which norms of war apply no longer. If it’s a war, call it war and apply Geneva Conventions. But it’s a war unlike any other, we are told. It is an unconventional war. A war in which a preferred method of putting away poultry will be offered to us as a substitute for due process.
Our abhorrence for cruelty is very much a rather recent phenomenon. The moral repugnance against torture is not trans-historical or universal. (So, how exactly does Swami’s comparison of humans with chimpanzees complicate the moral debate is unclear). It has evolved out of the experiences of human history, particularly those of the last century. The indivisibility and primacy of human life emerged in a context ravaged by war and conflict, not a state of normalcy. That human life was precious and the right to life non-negotiable even in times of war, and especially in times of war was a lesson that the world learnt as it emerged from the dust, smoke and debris of Second World War.
So this refrain of dire times calling for dire strategies, including torture and extra judicial violence, sweetly labeled as “excesses” is vacuous, even if it is in vogue these days.
To try and trace Ishrat Jahan’s appeal in public imagination as either a result of Narendra Modi’s persona, which evokes polarized responses, or to Congress’ petty and opportunist politicization of the issue is simply a desperate attempt –and an even more, a fervent wish – that Ishrat Jahan case does not culminate in the absolute wreckage of the idea of the security state and the pact that sustains it.
What is being asked today, shamefully, even if cleverly, in the name of a legal framework and oversight of intelligence agencies, is the legalization of extra judicial violence: torture, killing maiming. Gupta ends his article with a plea: “Constitutional state even creates a legal mechanism to kill without due process, but assigns accountability”. Accountability to whom? To the politicians who condone? In the end, his is an appeal for the resurrection of the pact.
Like the torture memos, which were produced by a Law Professor in the US at the behest of the Bush regime, to circumvent domestic laws and international treaties, to protect the torturers and killers from law, these commentaries are eroding our collective commitment towards the Constitution and rule of law.
This will spell the end of the Republic. Only an empty shell will survive, a security state bereft of any values and ethics.
The writer is an activist with Jamia Teachers’ Solidarity Association