इस कथित मुठभेड़ के बारे में काफी कुछ कहा जा चुका है। इसके वीडियो और दूसरे सबूत पब्लिक डोमेन में आ चुके हैं और इसके बारे में ज्यादा टिप्पणी की जरूरत नहीं है। हालांक‌ि इस घटना के बारे में राज्य सरकार के रवैये के बारे में काफी कुछ कहने की जरूरत है। मुठभेड़ के बारे में पुलिस जो कह रही है उस गंभीर सवाल उठ रहे थे। शक को पुख्ता करने के पर्याप्त सबूत थे। लेकिन राज्य सरकार ने ऐलान कर दिया कि मुठभेड़ की जांच की जरूरत नहीं है। पुलिस ने बहुत अच्छा काम किया है और आतंकी गत‌िव‌िध‌ियों के आरोपियों ( या आरोपी, जैसा क‌ि राज्य सरकार और मीडिया के एक बड़े वर्ग ने पहले ही उन्हें यह नाम दे दिया था।) को ज्यादा तवज्जो नहीं दी जानी चाहिए। जेल में उन्हें रख कर चिकन बिरयानी ही तो ख‌िलाई जा रही थी। राज्य सरकार और मुख्यमंत्री इस मामले में राजनीतिक जिम्मेदारी दिखाने के बजाय राजनीतिक लंपटता दिखा रहे हैं। दुर्भाग्य से इस तरह की घटनाएं सामान्य होती जा रही हैं।
 
पिछले सप्ताह मध्य प्रदेश सरकार ने जो किया, वह मौकापरस्ती से भी आगे की चीज है। पहले तो उसने इस घटना की जांच से ही इनकार कर दिया। उसने घटना की सीआईडी जांच के तुरंत आदेश नहीं दिए। साथ ही कथित मुठभेड़ को अंजाम देने वालों पुलिस अधिकारियों को तुरंत इनाम देने का भी ऐलान कर दिया।
 
ऐसा करना सुप्रीम कोर्ट के उस निर्देश का साफ उल्लंघन था, जिनमें इस तरह की मुठभेड़ों में उठाए जाने वाले जरूरी कदमों का जिक्र है। पीपुल्स यूनियन ऑफ सिविल लिबर्टीज (पीयूसीएल) की याचिका पर सुप्रीम कोर्ट ने ऐसी मुठभेड़ों के मामले में ईनाम-इकराम घोषित करने के संबंध में विस्तृत दिशा निर्देश दिए थे। इनमें साफ कहा गया था ऐसी मुठभेड़ों के संबंध में शासन को क्या करना चाहिए।

कोर्ट के मुताबिक इन कदमों को कड़ाई से पालन किया जाना चाहिए। साथ ही शासन को यह देखना होगा कि पुलिस मुठभेड़ों में इस तरह की हर मौत और गंभीर तौर पर घायल होने के मामले में भारत के संविधान की धारा 141 का पालन किया गया है या नहीं। पीयूसीएल की याचिका पर इस तरह की मुठभेड़ों के मामले में सुप्रीम कोर्ट ने विस्तृत दिशा-निर्देश जारी किए थे। कुछ मुख्य निर्देश इस तरह हैं-

1. अगर आतंकवाद या इससे जुड़ी घटनाओं के बारे में कोई गुप्त सूचना या जानकारी मिलती है तो उसे पुलिस डायरी में दर्ज किया जाना चाहिए ताकि मुठभेड़ के बारे में सच्चाई या सूचना के दावे की पुष्टि की जा सके। अचानक हुई मुठभेड़ के मामले के बारे में यह जानकारी नहीं मिल पाती है कि इस निर्देश का पालन हुआ है नहीं।  
2.  इस तरह की हत्याएं, जो ‘मुठभेड़’ करार दी जाती हैं, उनके बारे में सुप्रीम कोर्ट का निर्देश साफ है। इसमें कहा गया है कि अगर पुलिस ने इन मुठभेड़ों में पिस्तौल का इस्तेमाल किया है और इसकी वजह से मौतें हुई है तो तुरंत एक एफआईआर दर्ज हो और इसे तुरंत धारा 157 के तहत अदालत को भेजी जाए। राज्य की सीआईडी इस एफआईआर की जांच करे। या इसकी जांच दूसरे पुलिस थाने के अधिकारी करें। साथ ही वह मुठभेड़ में शामिल पुलिस दल के सदस्यों से भी पूछताछ करे और हालातों की जांच करे। लेकिन भोपाल मुठभेड़ कांड में इस निर्देश का बिल्कुल पालन नहीं हुआ।
3. सुप्रीम कोर्ट के निर्देश के मुताबिक जांच के लिए मुठभेड़ में इस्तेमाल हथियार जमा करने जरूरी हैं। सुप्रीम कोर्ट ने कहा था, मुठभेड़ में हिस्सा लेने वाले पुलिस अफसरों को अपने हथियार जमा करना होगा ताकि उनका बैलेस्टिक एनालिसिस हो सके। संविधान के अनुच्छेद 20 के अधीन मिले अधिकारों के तहत इन हथियारों और पुलिस जांच टीम की ओर से मांगी गई 31 चीजों को भी सौंपना जरूरी होगा। चूंकि भोपाल मुठभेड़ कांड में जांच की कोई घोषणा नहीं हुई थी इसलिए इन चीजों को भी जमा करने की कोई जरूरत नहीं समझी गई।
4. मुठभेड़ के तुरंत बाद बहादुरी पुरस्कार या आउट ऑफ टर्न प्रमोशन का ऐलान नहीं किया जाएगा। मुठभेड़ में शामिल पुलिस कर्मियों या अफसरों के लिए इस तरह का कोई भी पुरस्कार या प्रमोशन तभी घोषित किया जाए, जब उनकी बेदाग छवि पूरी तरह स्थापित हो जाए। लेकिन भोपाल कांड में बगैर इस प्रक्रिया के पहले ही पुलिस दल में शामिल अफसरों और कर्मियों के लिए पुरस्कार की घोषणा हो चुकी है। 
5. मुठभेड़ में मारे गए लोगों की लाशों के पोस्मार्टम की वीडियोग्राफी जरूरी होगी। इसे दो डॉक्टर करेंगे। भोपाल मुठभेड़ के मामले में ऐसा कुछ हुआ है, इसकी जानकारी नहीं है। 
6. ऐसे मुठभेड़ों की मजिस्ट्रेटी जांच जरूरी है और जांच की निष्पक्षता पर  अगर कोई संदेह है तो राष्ट्रीय मानवाधिकार आयोग को शामिल करना होगा। लेकिन भोपाल में हुई कथित मुठभेड़ में न्यायिक जांच की घोषणा में काफी देर हुई। हालांकि न्यायिक जांच में यह स्थापित नहीं हो पाया है कि जांच के दौरान सुप्रीम कोर्ट के निर्देशों का पालन किया गया है नहीं।

 
सुप्रीम कोर्ट ने बिल्कुल साफ कर दिया है कि ये निर्देश बाध्यकारी हैं और उन्हें हर राज्य को लागू करना होगा। मगर भोपाल कांड में इस संबंध में सुप्रीम कोर्ट के निर्देशों का उल्लंघन किया गया।

निर्देश में साफ है कि अगर जांच टाली गई या मुठभेड़ में शामिल पुलिस वालों के लिए तुरंत पुरस्कार की घोषणा की गई तो यह कोर्ट की अवमानना होगी।

हालांकि इस तरह के निर्देशों का उल्लंघन कोर्ट की अवमानना होगी या नहीं है, यह सुप्रीम कोर्ट पर छोड़ा जा सकता है। सुप्रीम कोर्ट के इन निर्देशों को देखें तो पता चलता है कि ऐसे मामलों में राज्यों के मुख्यमंत्री और मंत्रियों को इस आदेश के उल्लंघन की थोड़ी सी भी इजाजत नहीं है। लेकिन भोपाल के कथित मुठभेड़ कांड में जिस तरह से सुप्रीम कोर्ट के निर्देशों की अवहेलना हुई उससे साफ है कि शिवराज सरकार ने भारतीय संविधान की अवहेलना की।

सरीम नवेद वकील हैं और दिल्ली में रहते हैं।
 

The post क्या शिवराज सरकार ने भोपाल मुठभेड़ कांड में सुप्रीम कोर्ट की अवमानना की ? appeared first on SabrangIndia.

Image credit: Hindustan Times

Much has been said about this alleged encounter. The videos and witness testimonies are in the public domain and need no further comment. What needs further and continuing commentary is, however, the subsequent attitude of the State government. The State government, despite evidence that raised serious doubts about the police version, chose to declare that the encounter needed no inquiry, that the police had done an absolutely fine job and further that terror accused (or terrorists, as the State government and wide swathes of the media have christened them) need not be given much heed to as they while away their time in jail, eating chicken biryani. At a crucial stage of events, the State government and the Chief Minister chose political pandering over political responsibility. This is, unfortunately, a state of events that has become all too common.

In doing what they have done over the past week, the Madhya Pradesh government may, however, have committed an act much more serious than displaying crass opportunism. In refusing to (initially) order an inquiry, in not ordering an immediate investigation with the State CID and also in announcing a reward for the police personnel involved in the alleged encounter, the State Government has deliberately refused to follow the directions of the Supreme Court regarding encounter cases and the necessary steps that have to be taken thereto. This two-year old judgment of the Supreme Court was pronounced in a petition by the People’s Union for Civil Liberties where the Court has laid down, in detail, the steps that must be taken in case of an alleged. Encounter. The Judgement can be read here.

These steps are, as per the Court, are to be strictly followed and "must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India". These guidelines are many, but the main guidelines are as follows:

1. If there is a secret tip-off/information, the same must be reduced to writing in the police diary so that if there is an eventual encounter, the truth of the police claim of a tip-off can be judged. In the instant case, there is no information as to whether this was followed.

2. If the there is a killing pursuant to an ‘encounter’, the Supreme Court says where “the firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay." This FIR shall then be investigated by the state CID or a team from another police station by a police officer to the head of the police party who headed the encounter. This has not been done.

3. Weapons used in the encounter have to be surrendered for investigation. The Court states that "The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other 31 material, as required by the investigating team, subject to the rights under Article 20 of the Constitution." Since no investigation is happening, this has clearly not been done.

4. "No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt." Rewards have already been announced for members of the police party.

5. Post mortem has to be videographed and carried out by two doctors. No information if the same has been done.

6. A magisterial inquiry must be conducted and the NHRC must be involved if there are doubts about the impartiality of the investigation. A judicial inquiry has been ordered after much delay but a judicial inquiry finds no mention in the Supreme Court’s formulation of response to an encounter case.

The Supreme Court had made it very clear that these guidelines were binding and that they were to be implemented by all the states. Flagrant disregard of the Court’s order, specifically the act of avoiding investigation and announcing rewards for the police personnel involved in the encounter, could amount to contempt of court. Whether or not it amounts to contempt of court is, of course, a matter best left to the Supreme Court itself but it is obvious that the State Government, its minsters and the chief ministers could not be bothered to even show a modicum of respect to the Supreme Court’s judgment. This is a disturbing development and all the more necessary to be highlighted frequently and clearly, to show the government’s disregard for the Constitution of India.

The post In failing to follow SC Guidelines on Encounters, has MP Govt committed Contempt of Court? appeared first on SabrangIndia.

The prime minister’s recent claim that his government does not favour crony capitalists is vacuous given how the Central Environment Ministry is at loggerheads with the Tribal Ministry to completely dilute the impact of the emancipatory Forest Rights Act of 2006. Meanwhile a petition by ‘conservation’ groups in the Supreme Court of India is currently challenging the constitutionality of the law itself

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act (popularly called the Forest Rights Act), when it was enacted in 2006 brought in an important change to the way that India and government viewed the forest-dwelling individuals and communities of India.

The colonial laws of forest management like the Indian Forests Act, 1927 and laws which were brought in later by the government of independent India operated on one unquestioned premise, that the people living in the forests could not be trusted with the management of their surroundings. Forests, in India until the enactment of the Forest Rights Act, were the unquestioned fiefdom of the Forest Department. Home to some of the poorest and most isolated communities in India, the forests were sought to be managed not for the sake of people living harmoniously within these forests but with the aim of protecting the forests from human intervention.

While the aim was laudable, the actual management of the forests by the government resulted in a massive loot of forest resources and continued impoverishment of the tribals and other forest dwellers living in these forests. In fact, the continuing existence of the Naxalite insurgency within the tribal belt is a direct result of the mismanagement of the forests and victimisation of forest dwellers by an insensitive government.

What came about in 2006, through the Forest Rights Act, was recognition of the importance of the local community in the conservation of forests. This was an expression of trust in these local communities, as opposed to the local forest bureaucracies who had proven to be ineffective in either protecting the forests, the animals living in these forests or the humans inhabiting there.

The Forest Rights Act is aimed at providing tribal communities and individuals who are in occupation of forest land with formal recognition of their right to possess this land, to use and utilise forest resources in a suitable manner and to fell standing timber, subject to a limit of 75 trees per hectare, for developmental activities like building schools and hospitals. This is a law aimed at recognising the fact that many communities are used to life in the forest and these communities and their activities are actually an aid to forest conservation efforts.

This Act is now facing a constitutional test before the Supreme Court with some conservationist groups attacking the law for being anti-wildlife. The first challenge to the Act was filed by the Bombay Natural History Society which then voluntarily chose to withdraw the challenge. The BNHS withdrawal was borne out of the recognition of the fact that the initial propaganda against the Act was pernicious and had sought to create an impression that the Forest Rights Act would be the death of the Indian Forest. Many had bought into the propaganda, first circulated by Vanashakti, a conservation group, which actually ran television ads against the Forest Rights Act before its enactment.

After the enactment, implementation was, and has been slow, and this period was utilised by an assortment of conservationists, environmentalists and by ‘retired forest officers’ (who file a number of Petitions against the Act) to work up further fears about the impact of the Forest Rights Act.

The fear regarding the destruction of these forests, to put it simply, did not come about prompting the venerable Bombay Natural History Society to withdraw its challenge but other conservationist groups like Wildlife First and Nature Conservation Society have persisted. These groups have questioned the competence of Parliament in enacting the Forest Rights Act as they claim that land is a subject for legislation by the states and not the centre. This claim is incorrect because land does come under the State list, the issue of Forests is included in the concurrent list meaning both the Parliament and the State legislatures have the power to enact laws on this subject. They had also claimed that the Forest Rights Act is bad for forest-dwellers as well as they would be better served by resettlement and rehabilitation.

The constitutional basis of the argument, challenging the competence of Parliament to enact this law has not yet been argued before the Supreme Court in the two days on which these cases have been heard until now.

There was an oral observation by the bench yesterday, February 1, 2016, that the constitutionality was not in question in the existing legal challenges; the Judges also observed that the only issues raised by the Petitioners against the Forest Rights Act so far relate to problems in its implementation and the apprehension that encroachers may utilise the Act to take over forest land. This being the argument of the Petitioners, the Supreme Court has asked all states to file an affidavit within two weeks regarding the implementation of the Act, the number of claims received, the number of claims confirmed or rejected and action, if any, taken against persons whose claims have been rejected.

This order was passed as the Supreme Court thought it best to have this information before proceeding further with the hearing. The Court also vacated the interim order passed by the Madras High Court through which the High Court had directed the Tamil Nadu government to take its (the Court’s) permission before granting final rights under the Act. To clarify, the Madras High Court had allowed the process of verification and recognition of claims to go on but had had ordered that the Court’s permission ought to be taken before this recognition of forest rights was formally awarded. The Supreme Court has observed that there was no need for such an order, especially when no other State in the country was subject to such a pre-condition.

There was some mistaken reporting in the media that the Supreme Court had, during the hearing of this constitutional challenge, ordered eviction of ‘rejected’ claimants. This is incorrect. As observed by the Campaign for Survival and Dignity in their press release on the Court’s order on February 1, 2016, “There was no order directing eviction of rejected claimants and no order regarding 'encroachment', though this was mistakenly reported in some press outlets.”All the Court has asked for is information regarding statistics.

The constitutional challenge to the Forest Rights Act is before the Supreme Court but the real battle is afoot on the ground to protect the Act from the government of India itself. The Forest Rights Act, like any other welfare legislation seeking to empower local communities has been branded as anti-development by the present regime. A radical aspect of this law is that it empowers the Gram Sabhas to decide what will be done with their land, wrested in the belief that local communities must have a say on the kind of development that is undertaken.

The constitutional challenge to the Forest Rights Act is before the Supreme Court but the real battle is afoot on the ground to protect the Act from the government of India itself. The Forest Rights Act, like any other welfare legislation seeking to empower local communities has been branded as anti-development by the present regime. A radical aspect of this law is that it empowers the Gram Sabhas to decide what will be done with their land, wrested in the belief that local communities must have a say on the kind of development that is undertaken.

This principle was also affirmed by the Supreme Court in the Niyamgiri judgment, where the provisions of the Forest Right Act and the Panchayat (Extension to Scheduled Areas), Act were cited by the Court to affirm the requirement of consent from the local gram sabhas before utilising their land for the Vedanta bauxite-mining project located in the Niyamgiri hills of Orissa. This was one of the most significant judgements in support of local grass-roots democracy by the Constitutional Court. It was the Gram Sabhas who had refused permission for the mining project.

Since then, the Forest Rights Act has acquired a new foe, the government of India, itself. In the days of the United Progressive Alliance government, though there were repeated demands from within the government to dilute the Act, it is under the Modi regime, that the present National Democratic Alliance government that has launched on a course aimed at not just diluting but destroying the empowering and democratising aspects of this law.

Government committees like the T.S.R. Subramanian Committee report set up in 2014 had advised amendment of the Forest Rights Act to dilute the consent powers of the local Gram Sabhas, but the political cost of an unpopular amendment was earlier deemed too high. Since then, however, the dilution that has been proposed, and is actually happening, stealthily through executive notifications such as in Maharashtra where control over forest resources is sought to be re-appropriated by the State. The central Tribal Ministry was and is at loggerheads with the central Environment ministry. The latter is being used by the regime to completely destroy the impact of the law.[1]

A notification from the Ministry of Environment and Forests now allows private parties to initiate commercial plantations on ‘degraded’ forest land and restricts usage of the same by local communities. How this helps conservation efforts is a matter of anybody’s guess. The Government has also mandated a reduced deposit of royalties by mining companies. These deposits are again to be made into a government fund instead of advanced to the local communities who are entitled to it.

Though the state management of forests has been a proven failure – and this was acknowledged in the very enactment of the Forest Rights Act of 2006 istelf — the State seems loth to hand over democratic voice to local communities. Local communities, aware and empowered about the degrading costs of a certain model of development, could well refuse to allow such a top down take-over of forest land. The Government, accused of being crony capitalist at the best of times, could more easily negotiate terms with mining companies and other industry, little concerned with the impact on forests. At stake here is not the long-term protection of the forests but the issue of control over the largesse that forest resources represent.

This principle was also affirmed by the Supreme Court in the Niyamgiri judgment, where the provisions of the Forest Right Act and the Panchayat (Extension to Scheduled Areas), Act were cited by the Court to affirm the requirement of consent from the local gram sabhas before utilising their land for the Vedanta bauxite-mining project located in the Niyamgiri hills of Orissa.

By now we have the experience of many decades which shows that a government driven attempt at forest conservation does not work effectively. Creating no-go zones which are supposed to be patrolled by a government department just creates a niche for governmental corruption and for illegal exploitation of forest resources.

Local communities have a stake in the forest. Their way of life depends upon the continued existence of the forest. To presume that no one would live in a forest without aiming to exploit it commercially is to be disingenuous. It betrays a bias and an understanding of life as an exclusively urban phenomenon where the conglomeration of humans is going to expand manifold to take over all surrounding areas. There is also an assumption that these local communities are not, and cannot, be part of forest conservation efforts and are destined to be used by others in destroying the forests.

A city-dweller cares for his house, the road outside his house and the schools and hospitals which he uses. The city is his habitat and community participation is a beneficial and accepted part of urban planning. There is no reason to assume that the person living in the forest, used and attuned to a way of life that needs the forest and the wildlife in it to survive and prosper, will feel or act any differently regarding his habitat.

Apart from the tribals who are benefited under the Act, the Forest Rights Act also recognises rights over land for ‘Other Traditional Forest Dwellers’ who are defined as persons whose families have been living in within the forest at the same location for 75 years or more. This is necessary because not every deserving forest dwellers has been declared a Scheduled Tribe with some tribes, who are considered Scheduled Tribes in one state are not considered so in other states. There is much apprehension that encroachers will utilise this definition to enter and exploit the forests. The cut-off date for recognition of forest rights is 2005 and a claimant for forest rights has to show that he was in occupation of forest land in 2005 and that he and his family have continued to do so for the previous three generations or 75 years. The cut-off date also applies to tribals.

A welfare legislation is always open to the criticism of misuse. Or that benefits under it may be sought by people who are not eligible. This does not mean that the welfare legislation itself is a wrong step. If there are deficiencies in implementation they can be addressed and corrected. A new and young legislation like the Forest Rights Act needs some time for its impact to be felt and understood.

Today statistics of its efficacy tell a mixed story. Some statistics show a marginal decrease in forest land in tribal areas since the inception of this Act. It is nobody’s case that India’s forest cover was not decreasing before this law came about. Further, the implementation of the law has been quite tardy which makes it difficult to assess the impact of the law just as yet. Many lakhs of claims under the Act have been accepted and an equivalent number have been denied. Forest-dwelling communities are only now starting to take control over their lives and their surroundings. In at least some states, there is a marginal increase in forest cover although again, such an increase cannot be attributed to the Forest Rights Act at this stage.

The issue, when discussing laws like the Forest Rights Act, is one of community participation and empowerment. Tribals and forest-dwellers have lived in terror of eviction from their lands for the best part of a century. If they are evicted, the majority inevitably end up in city slums and squalor, which does not benefit them or the overburdened cities that they are forced to move into.

Some degree of trust in the disempowered might just be the solution that India is looking for. The Central government is in the middle of a tug-of-war with an isolated Ministry of Tribal Affairs forced to cede ground to the other Ministries to dilute the Act to allow crony corporates and the government to take over the forests once again.

Local people must have the freedom to live their own lives. This is at the heart of any democracy. Forests and wildlife are endangered in India not because of the tribals but because of the rapacity of the State and commercial interests. Letting communities, whose instinct is to defend their way of life, can only help in conserving these forests and the animals living within them.

(The writer is a Delhi based lawyer who is appearing for persons defending the act before the Supreme Court) 
  
References:
1) Forest land: Govt finalising dilution of tribal rights
2) Joint Statement on Anti-FRA Case in SC

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The raid could have gone very differently. Imagine the chief investigating officer approaching the Chief Minister with a written demand/request/notice for producing the desk and files of his Principal Secretary for examination and scrutiny. Could the Chief Minister have refused? Section 91 of the Code of Criminal Procedure read with the Delhi Special Police Establishment Act grants a CBI officer, above the rank of a sub-inspector, the power to make such a written request. I use the word ‘request’ here but Section 91 makes it clear that this would not be a request, but a binding order, violation of which is punishable under the Indian Penal Code. The Chief Minister could not have refused to comply with it and he would have had to hand over the files and documents asked for. He could, however, have insisted that since there are many (other) sensitive files kept in the custody of the Prinicipal Secretary which ought to be protected from legal seizure, that the team carrying out this inspection should be accompanied by a responsible Delhi government official.

The CBI team would (or should) have welcomed this as they would require an impartial public witness to the inspection of documents and any consequent seizure. Any government officer present in the Secretariat would have served the purpose. This is standard procedure. The presence of this witness would have buttressed the sanctity of any incriminating material recovered during such an inspection. This witness would have come to Court and testified to support the CBI’s case against the accused. CBI had everything to gain by following the procedure laid down by law. It would have been a new feather in its cap.

Yet, they chose to enter the Chief Minister’s office without any warning, keep him and his staff out and then proceeded to search the office hoping that everybody would take them at their word which was that they had carried out the search in accordance with law and procedure and, most critically, not touched any files which they were not relevant to the exercise. CBI officers are well-trained investigators and are also well versed in the ways of the politics of power. It is therefore safe to assume that the manner of search and ignorance of the law was deliberate. It is also pertinent and relevant to mention here that under Section 165 of the Code of Criminal Procedure, the CBI enjoys the power, in appropriate cases, to carry out a search without any prior warning if they are of the opinion that evidence may be lost or destroyed due to any delay in the search. Here, there was apparently no such danger. The CBI itself has said that a search warrant was obtained from the Magistrate’s Court which can only be obtained in a situation where it is feared that the person from whose custody evidence is sought may destroy that evidence. We do not know the reasons given to the Magistrate by the CBI at the time of obtaining this search warrant but they presumably made out a case for imminent danger of destruction of evidence. If the CBI were actually afraid that Mr. Rajender Kumar could interfere with the evidence they could have detained or even arrested him, but that would have meant that the matter would immediately land up before the Courts where the CBI — unlike when they merely ask for a search warrant — would have had to actually face scrutiny of their actions.

If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling

A raid, on the force of a search warrant issued by a Court, could or should have been undertaken only if there was an apprehension that the person having control over a certain thing (the desk and files of the PS to the CM, in this case)would not produce it before the police of his own accord, when directed under law, to do so. In this case, documents were available with the officials of the Delhi Government, including the Chief Minister. If the CBI’s intentions were honourable it could have inspected all of Rajender Kumar’s files with the cooperation of the Delhi Government. The question that arises is why the CBI chose not to even approach the Chief Minister. This is baffling.

If the investigation had been carried out with the aid of the Chief Minister, there would have been no controversy. The Central government would, however, have lost an opportunity to blame Arvind Kejriwal for shielding the (allegedly) corrupt. Kejriwal has also alleged that the target of the CBI are the files relating to Mr. Jaitley’s tenure as president of the Delhi and District Cricket Association. Kejriwal has also raised the other, rather pertinent point that if the allegations of corruption pertain to a posting Rajender Kumar had with the previous government, there was no particular purpose to be served by searching the files he was handling in his current posting.

The true intent behind the actions of the CBI are perhaps best left to speculation at this stage. This kind of speculation tends to border on the sensational and thus overshadows the seriousness of the issue on hand, which is the malicious use of a central investigating agency by the government of the day, to browbeat its political opponents.

The strategy of the Central government, key members of which were members of the Gujarat government in days not long gone by, seems to follow the Gujarat model of targeting their opponents. The strategy of tiring out opponents through incessant litigation by misusing state machinery is an integral part of this model. Police officers like Kuldeep Sharma, Rahul Sharma, Satish Verma, R.B. Sreekumar and Rajneesh Rai all of whom have been brought into sharp conflict with the Gujarat government they once served, simply because, at the relevant time, they did their job within legal and Constitutional boundaries. Yet they have had to fight a vindictive state apparatus, every step of the way, simply for retaining terms of service or a place within the force.  All of them have been targeted with charges that are absurd (these include truth-telling before the Nanavati-Shah Commission) and have been forced to approach the Courts for relief from this government onslaught. The same has been done to activists and politicians from the opposition, or at least those among them who could not be co-opted by the government.

It is a strategy of death by attrition, of miring all opposition figures in manufactured legal wrangles which have no future but are sufficient to keep any individual or organisation, both distracted and exhausted. One cannot, at this stage, speak about the culpability or innocence of Rajendra Kumar (principal secretary to chief minister, Arvind Kejriwal). It is however unfortunately, quite easy to see that he is the victim of collateral damage in this particular, ill conceived political battle. Bureaucrats, as a breed play safe, and this message coming from the very top, sends a sinister message to others serving political opponents. After all, as long as all political opponents are busy countering these manufactured attacks, the work of governance or what passes for governance these days, can carry on, unquestioned.

(The writer is a Delhi based lawyer) 

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