The Ishrat Jahan case seems all but shut, with the Ministry of Home Affairs (MHA) refusing to grant sanction to the CBI to prosecute four Intelligence Bureau officers, including ex-Special Director of the IB, Rajender Kumar. The four officers were charged for the criminal conspiracy of the encounter of Ishrat Jahan and three other people committed in 2004.
The sanction was refused by the MHA more than a year after the request was made, on the grounds that the case presented before them did not make out charges of criminal conspiracy. “For a criminal conspiracy, there has to be an agreement or meeting of minds on the intent for commitment of offence. After perusing the copy of case diaries and records shared with the CBI and consulting legal experts, it is clear that making of a criminal conspiracy is not there,” a ministry official told the Times of India newspaper.
The Ministry’s decision has been sharply criticized by the opposition parties.
Case against officers is over
The refusal ends the 11-year case against Rajender Kumar and his fellow officers who had been charge sheeted by the CBI without obtaining sanction in February last year. The Bureau however, applied for sanction from the MHA within a month, after which the MHA requested the CBI for the case diary and the SP’s report on the matter. The decision has been arrived at after strict perusal of these documents and consultation with legal experts, the MHA said.
The decision essentially insulates the IB officers against any action in the future. When asked whether Ishrat’s family could oppose the Ministry’s ruling, the MHA told TOI that while they could approach the court in this regard, they could not directly appeal the Home Ministry’s refusal of sanction to prosecute. The order, incidentally, has come immediately after the government’s decision to end the suspension Gujarat Police officer NK Amin and to reinstate him in the State Crime Records Bureau.
‘Ministry hiding something’
Meanwhile, both the Congress and the Left sharply criticized the government on this. Leader of Opposition in the Rajya Sabha and senior Congress leader Ghulam Nabi Azad said that the world knew that Isharat Jahan had been killed in an encounter, and the government’s decision not grant sanction was strange. “It is bizarre that instead of granting the permission to prosecute the official so that one could come to the final conclusion, the Home Ministry has chosen to deny the permission on flimsy grounds which clearly indicates that the ministry has something to hide,” he said.
The Politburo of the Communist Party of India (Marxist) released a statement accusing the government of trying to subvert judicial proceedings. “The decision of the Central government not to sanction prosecution of some Intelligence Bureau officials in the Ishrat Jahan murder case is a blatant attempt to subvert the case. The CBI, after investigation, had proceeded to charge sheet those involved in the crime, including the four IB officers. The decision of the Home Ministry to protect these persons is unconscionable” the Polit Bureau said.
“Both the BJP government at the Centre and the BJP government in Gujarat are working in tandem to undermine the cases involving false encounters and killings by the police” they added.
The legal position on the matter of granting sanction to prosecute is unclear. In a recent judgment of the Supreme Court a bench led by Justice TS Thakur held that “while it is not possible to hold that the requirement of sanction is unconstitutional, the competent authority has to take a decision on the issue of sanction expeditiously as already observed. A fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand,”
The SC has in the past underlined the need to decide on sanction within three months from the application for sanction in the Vineet Narain case. In the 2G case fought by Subramanian Swamy, the Court went ahead and said that when such three months had passed, sanction would have been deemed to have been granted. However, no clear guidelines have been issued and the CBI did not proceed with the case after the three-month period passed.
Ishrat’s mother’s lawyer however said that the government’s decision would be challenged. He said a final decision would be taken on the course of action to be followed once Ishrat’s lawyer returns.