There are a few things you can say with some certainty on the Ishrat Jahan case: that there is a great deal of smoke to suggest that at least three members of the group were involved with really bad guys. Second, that there is no evidence at all  at least not yet  that they were coming to assassinate Narendra Modi. Third, they were most likely killed in a fake encounter. And finally, there is little reason to doubt that this was a joint operation between Gujarat Police and the Intelligence Bureau and both parties knew exactly where they, and their captives, were headed. What we do not know is, whether it was an operation that the intelligence agencies would sometimes describe as a "controlled killing", where you use moles and plants to lure your targets into a trap and then put them away, or was it a rogue operation, driven either by a combination of paranoia and arrogance, or to please the powers that be. Irrespective of which side of this tricky debate you are on, you would have to admit that a fake encounter would always be illegal. That's where we start to get into problems.

If these were indeed terrorists lured through an undercover operation and then subjected to "controlled killing" carried out in good faith, should it be treated differently from any other fake encounter? Can the antecedents of the victims and the intentions of the spooks be a mitigating factor? The legally and morally correct answer is, without any doubt whatsoever, no. A fake encounter is a fake encounter and no law allows anybody in India to take someone else's life  even a Pakistani citizen's. So what is left to debate?

The problem is, that it isn't so simple. Because it is not the first time "controlled killings" have been carried out by our intelligence agencies and police. They have done so, on a much larger scale, in several parts of the country, and have been applauded and rewarded for these. So much so, that even when innocents have been targeted and killed, these have been overlooked as genuine errors and collateral damage. It gets further complicated because much of this has not only taken place under the watch of the Congress and several other secular parties, but that many of the same organisations and personnel have been involved. So how do the encounter killings of hundreds of suspected/alleged Sikh terrorists in Punjab become justified, but some half dozen in Gujarat evoke such an outrage? If the courts have assigned the CBI to probe what it suspected was a fake encounter, and the agency has now filed a chargesheet, it would be a straightforward case. It is the gloating by the Congress that has politicised, and I am afraid, also communalised, the issue. It is feeding straight into the narrative of every-encounter-is-fake, and total Muslim victimhood. This, when a majority of such encounters (including Batla House) have taken place under the watch of Congress/UPA governments, in Delhi, Maharashtra, Andhra and, indeed, Kashmir.

There are many reasons why this should have been the fittest case for the Congress to not politicise. Because if the CBI has good evidence, it will do its job anyway. But this gloating and politicisation now threatens to open our entire security underbelly. And not everything that spills out will look or smell nice.

For example, when this particular encounter took place (June 15, 2004) the UPA was already in power in Delhi and M.K. Narayanan, our sharpest, and most powerful spymaster after B.N. Mullick and R.N. Kao, was NSA (internal security) and controlled all intelligence agencies, particularly his alma mater, the Intelligence Bureau, which he had led (1987-89, and 1991-92) and most of whose officers had served as his subalterns? It is clear that the UPA's security establishment knew exactly what had happened and had accepted it, until the courts brought in the CBI.

The head of the IB when this encounter took place was K.P. Singh, and he too will need to be asked what he knew. So would Ajit Doval, who succeeded him just the following month (July 2004). I may have some intellectual arguments with him, but I have known Ajit Doval well as our respective careers in the field ran parallely in Aizawl and Gangtok in really challenging times, then to Punjab of the early '90s. I can say that he is one of the most intrepid and committed "operational" spooks in our history. If somebody was able to pen the real story of how terrorism folded in Punjab within a few bloody months in 1993, Doval's name will appear as many times as K.P.S. Gill's. Because they so conclusively demolished the ISI's most ambitions operation ever outside of Kashmir, they were seen as national heroes. But nobody asked how many suspected terrorists they put through "due process". And when questions were raised about fake encounters, or killing of innocents, the entire government system colluded in never letting the truth out, even when the Supreme Court had wanted it. I am not writing a definitive history of that phase now, but they fought fire with fire, even kidnap with kidnap. When Gurbachan Singh Manochahal, a top-ranked militant, abducted the father of a police SP, the police abducted his son and a peaceful exchange was carried out. That, then, was due process. In fact, Gill used to say that militancy will end the day its leaders were convinced that one of them had moved to the police's "A" category, he had no more than six months to live. The state police did the firing, but identification, cornering or luring of "militants" was mostly done by the IB's unarmed operatives riding in a Maruti van. And they were funded directly  mostly in cash by the suitcase  by Subodh Kant Sahay and Rajesh Pilot, then minister for internal security in Narasimha Rao's cabinet.

Once you start raising these questions, you will need two full commissions of inquiry. One, a more immediate one to look into who all were in the know in New Delhi under the UPA on the Ishrat Jahan encounter and why had they accepted it so far. The second, and a more interesting one, on what our intelligence agencies have been up to in the past, and with what kind of oversight. I, for example, would also love to see answers for some mysteries that have dogged reporters of my generation: how did tribal insurgents of the Tripura National Volunteers (TNV) suddenly kill 91 Bengalis (who form a wide majority in the state) on the eve of the 1988 elections there? Rajiv Gandhi immediately enforced the Disturbed Areas Act (just seven days before elections, charged the Left Front government with colluding with the tribals, and this was a rare occasion when the Congress won Tripura. Shortly afterwards, the TNV came overground and its notorious leader, Bijoy Hrangkhawl was rehabilitated happily. Or was there something behind a rash of attacks in the Punjab countryside in 1991 targeting the families of Punjab policemen? It is then that the state police turned against militants and the tide turned. Many of us have wondered what exactly happened and all you can say is 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.

The larger argument, therefore is, if they did so in Gujarat, it is not the first time the IB and state police forces have collaborated to kill. So while it is one thing to investigate this case as a crime, be careful of what you will unravel if you do not ensure a "controlled fallout". Fighting terrorism in any democracy is tough enough. But if you also unleash Congress versus BJP, and agency versus agency factors in it, you are asking for trouble. We can't have a weak government set free one agency as a caged parrot and kick the other into a hangdog. This needs to be handled very, very carefully.

Our intelligence agencies must now be put under greater oversight. But no country today, particularly one blessed with our neighbourhood, can weaken its intelligence agencies. Time has come, therefore, to debate, rewrite and refine the charter of our intelligence agencies, put them under real oversight, but also empower them legally and constitutionally to carry out real field operations. In his brilliant recent book, The Way of the Knife, Mark Mazzetti, the Pulitzer prize winning New York Times correspondent, documents how the CIA morphed into a killing machine against al Qaeda/Taliban from a mere intelligence agency. His account is chilling and disturbing. But it also tells you how a constitutional state even creates a legal mechanism to kill without due process, but assigns accountability. In Washington now, the president himself sanctions each killing  even that of an American citizen (Anwar al-Awlaki, the cleric in Yemen), after a team of lawyers has examined intelligence evidence and advises him to do so. Sounds rough? But there is responsibility formally assigned at the highest level for taking a life, and for the mistakes that will inevitably be made  the CIA also killed Awlaki's 16-year-old innocent son in a case of

"mistaken identity".

A system will be better than a bunch of buccanneers getting together and bumping off some usual suspects. Or the higher establishment simply wringing its hands and dumping it all on "dirty cops". Whatever its legality or justification, or the lack of either, the Ishrat Jahan encounter was not the first of its kind. Nor will it be the last. You need to create a proper legal system and framework that will discipline your intelligence agencies, but also make them stronger and more dashing, rather than weaker and bureaucratic.

sg@expressindia.com

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