Why The Ishrat Case Is A Red Herring: The Real Issue Is The Weak Indian State

Consider this scenario: The US, chasing alleged 9/11 provocateur Osama bin Laden, ultimately did not capture him and prosecute him for his crimes in a court of law. It simply read its own intelligence, organised a military raid deep inside in Pakistan, and had him assassinated and dumped in the Arabian Sea. Now, if a worried US Supreme Court, egged on by Islamists and human rights activists, decided to go after the CIA and other intelligence agencies that enabled Osama’s killing as violators of the rule of law, would the US public accept this as the right thing to do?

Consider scenario 2: In September 2011, the US used drones to target and kill one of its own citizens, Anwar al-Awlaki, an Islamist preacher who was allegedly helping al-Qaeda organise more terrorists strikes against the US. Two weeks after he was killed, his son too was killed in a drone strike. To put it simply: the US government killed one of its own citizens (no doubt of Yemeni origin) without bringing him to a court of law or clearly convicting him.

Now, to scenario 3: Indian intelligence, aided by the Gujarat police, identified and targeted the killing of two Lashkar-e-Toiba (LeT) terrorists who were allegedly plotting to kill Narendra Modi in 2004. Two Indians, a Keralite Hindu convert to Islam, Javed Shaikh, and one 19-year-old young Muslim woman, Ishrat Jehan, were also killed in the encounter. They were allegedly aiding and abetting the LeT module. Does that make them co-conspirators, if not formal members of the LeT? Can you consider the kind of blood-letting that would have happened in Gujarat if a popular CM was assassinated by this module? If you were a police officer concerned about not letting 2002 happen again, which lesser evil would you choose? Killing the LeT plotters in an encounter, or just arresting them in the hope that the Indian judiciary will accept the intelligence input as material enough to jail them for life or even hang them? Is the Indian system even capable of ensuring convictions on the basis of very strong evidence?

P Chidambaram and India’s human rights activists are right to mention that whether Ishrat was or was not an LeT terrorist makes no difference to whether she was killed in a “fake” encounter, but the question to ask is this: did the Indian state has other realistic options to deal with a terror module? If the US, with all the technology and resources at its command, felt assassination of strong suspects was better than capture, trial and sentencing, why is it assumed that a much weaker Indian state, with its debilitated police force and horrendously dilatory judicial system, can do much better?

In Indian terms, the killing of Osama and Anwar al-Awlaki and his son would be called “fake” encounters. And here the US does not even deny it killed them both, with orders for their killing coming directly from President Obama’s office. If you were to read Mark Mazetti’s The Way Of The Knife, the CIA has morphed from being an intelligence agency to a hired assassin of America’s enemies. But the world does not think this is wrong and needs condemnation, leave along bringing President Obama, the CIA and its drone operators to justice.

But our SLOBs – the secular, left outrage brigade – think that preventing assassinations of Indian leaders through encounters – real or fake – is some kind of horrendous crime. Even worse, they think only the Gujarat encounter merits national outrage. Not the thousands of other encounters that go under the radar all the time. The most recent one, Andhra’s encounter against red sandalwood smugglers from Tamil Nadu, is no longer news.

I am not for one moment suggesting that fake encounters are the way to go; just that they have to be seen in context. They are symptoms, not the problem itself.

The truth is India has never dealt with any security threat with kid gloves ever. Whether it is the various insurgencies in the north-east, the Jammu & Kashmir jihadi threats, the Naxal threat to West Bengal in the 1960s and 1970s, the Khalistani terrorism of the 1980s and early 1990s, the cutting to size of Mumbai’s criminal gangs by Julio Ribeiro, or the decimation of the Andhra Naxal movement by Chandrababu Naidu’s Greyhounds, encounters have played a large part. They have done so even during the Mayawati and Mulayam Singh regimes, when encounters were used to reduce the power of criminal politicians or political enemies.

Listen to what Shekhar Gupta, former Indian Express Editor-in-Chief and no friend of the NDA, and certainly a friend of P Chidambaram, the former Home Minister who subverted the affidavit in the Ishrat encounter case by doctoring it and cleansing it of any references to Ishrat’s LeT connections, has to say: “It was fully believed in intelligence circles under the UPA that Ishrat was part of the LeT. It was also fully believed - and happily accepted - that the gang was killed in a staged encounter which, in counter-terror, is ‘par for the course’. It was only in its second term, when the UPA began seeing a threat from Gujarat and its ‘special operations group’ on Narendra Modi, Amit Shah and their favourite policemen got active, that the ‘fake encounter’ outrage was born. It had a dual purpose, nailing the key political rivals, as also exploiting the Muslim victimhood electorally. The UPA can deny it forever, but this was pure politics.”

Gupta then goes on to say what everyone knows: that “the Congress has been the most brutal in dealing with all security threats. It annihilated the Punjab insurgency between 1984 and 1993 with covert methods of unparalleled single-mindedness…..So the simple answer to the Congress (party’s outrage over Ishrat) is, look who’s talking. Or, let’s be more specific: Nau sau choohe kha ke billi hajj ko chali (the cat’s gone for the Haj after devouring 900 rats).”

Gupta could also have taken Chidambaram to task by asking a simple question: beyond the Ishrat affidavit, how many other affidavits not concerning Gujarat did he correct? If Chidambaram was so concerned about encounters, what did he do about the many that were happening elsewhere all the time during his tenure as Home Minister?

The issue we now face as a nation is obvious: can we afford to obsess over only one encounter, as though that is the core of the problem, or address the more fundamental issue - the inability of India’s weak state to bring criminals and terrorists to book using ordinary laws and normal police processes.

Is it fair to target Gujarat cops of Intelligence Bureau officers for encounters when this is purely the result of the Congress party’s need to target Gujarat and Modi? Our policemen respond to the public’s anxieties on terrorism and crime by resorting to rough-and-ready methods, using draconian provisions in the law, and for this they can’t be held accountable all by themselves. If we are unwilling to prosecute the Manmohan Singhs and Sonia Gandhis and P Chidambarams – not to speak of the many chief ministers and home ministers in states who wink at encounters – to put only policemen in the dock is plain and simple wrong.

The system has failed the public, and to pretend that the Ishrat Jehan case is what needs fixing is political opportunism and denial of the worst kind.

The problem is not encounters, fake or real, but a weak state that needs draconian laws and such encounters regularly to keep some control of crime and terrorism. Citizens demand quick action when they feel fear; the police are merely responding to this. Our politicians, who allow the weak state to persist by refusing to empower the police with autonomy or give them enough resources to do their jobs faithfully, are the real culprits, and Congress politicians, who have been in power for the largest span since 1947 have to shoulder the largest portion of the blame.

But we are still left with another question on global jihadism. If even the strongest nation in the world, the US, is using assassination and not the rule of law to neutralise terrorists, how can the Indian state, with its far lower capabilities, be brought to book for similar crimes of fake encounters?

Surely, we are missing something here?