The M. C. Jain Commission came perilously close to wrecking the Rajiv Gandhi assassination trial.

ONE wonders how many people realise that the successful conclusion of the trial before the Designated Court of 26 persons accused of complicity in the conspiracy to assassinate Rajiv Gandhi was accomplished despite the persistent obstructions of Justice Milap Chand Jain and politically motivated attempts by Sonia Gandhi to use the Jain Commission to malign Rajiv's political opponents. For her to express in a prepared statement, at Amethi on August 24, 1995, "vedna" (anguish) at the pace of "jaanch" (investigation), was to cast a slur on the trial proceedings. Those who encouraged her, for their own ends, did the country - and Sonia as well - grave disservice. The Jain Commission came perilously close to wrecking the trial. Sadly, neither the Supreme Court nor the Delhi High Court cared to intervene. The triumph of justice was due entirely to the integrity and independent spirit of Judges S.M. Sidickk and V. Navaneetham and to the devoted labours of the Special Investigation Team of the Central Bureau of Investigation headed by its Joint Director D.R. Karthikeyan, who showed courage and honesty.

Lest this seem exaggerated, just read what Jain said in an order on July 2, 1993 apropos the trial: "Inquiry by the Commission carried with it greater confidence in the public mind." The wide public satisfaction at the court's verdict, in contrast to the ridicule which the Jain Report aroused, provides sufficient refutation of these remarks. The remarks were, however, worse than cheap in their boastfulness. They were dangerous in their implications. For the next sentence read: "In ordinary criminal investigations, the possibility that it may be one-sided, tainted, biased and unfair, may even be based on concocted evidence, cannot be ruled out. Wrong persons may be prosecuted and real culprits may be shielded. Even at the trial after the filing of the charge-sheet, there may be cases when witnesses may be won over, they may be bribed, they may be terrorised..."

These sweepingly scandalous remarks were made by this former Chief Justice of the Delhi High Court, not at a seminar while dilating on generalities, but as a Commission of Inquiry, to establish his primacy over a regular criminal trial before a court of law which he knew was in progress. This mindset explains his later conduct.

Assigned the case on May 24, 1991, the CBI set up the SIT, which filed the charge-sheet before Judge Sidickk within a year, on May 20, 1992. A year later, on May 5, 1993, the prosecution was able to open its case before the Judge, outlining the evidence it proposed to lead. After hearing the defence, the court began framing 251 charges against 26 accused, from November 24 to December 1, 1993. Three other accused were "absconding" - the Liberation Tigers of Tamil Eelam (LTTE) supremo, V. Prabakaran, its intelligence chief Pottu Amman, and the deputy chief of the women's intelligence wing, Akila. The charge-sheet rested squarely on a conspiracy by the LTTE. Independent journalistic investigation supported the charge. International perception did not differ. President Chandrika Kumaratunga publicly blamed the LTTE.

The Jain Commission was set up on August 23, 1991, with one main remit, the conspiracy aspect, which Justice J.S. Verma had refused to accept. Justice Verma confined his inquiry, set up on May 27, 1991, to security failures alone, personal or systemic. Jain was directed to inquire into "the sequence of events leading to, and all the facts and circumstances relating to the assassination of Mr. Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission headed by Justice Verma)."

In particular, the Commission was enjoined to inquire "whether one person or persons or agencies were responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy in this behalf and, if so, all its ramifications."

For such an inquiry to declare open season on lurid conspiracy theories was to cast aspersions on the charge-sheet. It could, however, properly conduct an inquiry into the "ramifications" in a manner that did not affect the trial. In law, the trial and the inquiry are independent, parallel proceedings which are by no means uncommon. The Ervin Committee did its job to expose the Watergate scandal in all its "ramifications". Judge Sirica did his bit to bring culpable individuals to book.

The law is not in doubt, although it can do with greater precision. An inquiry can be instituted after a trial is over (the Kapur Commission on Gandhi's assassination and the Chandrachud Commission on Deen Dayal Upadhyaya's). A trial and an inquiry can also proceed simultaneously. But a heavy onus lies on the judge holding the inquiry to ensure that the trial proceedings are neither obstructed, whether by seeking its records or otherwise, nor prejudiced ("A limited probe", Frontline, June 5, 1992). The K.K. Mathew Commission on the assassination of L.N. Mishra at Samastipur in 1975 was wrong in refusing to hold an inquiry because it "will be parallel to the one to be conducted by the criminal court for the reason that the evidence before both forums will be the same". Justice D. P. Madon ably inquired into the Bhiwandi riots in May 1970 while a trial was in progress. Justice P. Jaganmohan Reddy, who inquired into the Emergency excesses of Bansi Lal, lucidly discussed the problem in his order of October 10, 1977, annexed to the first Interim Report. He held that an inquiry could proceed although an FIR had been filed.

The Supreme Court's rulings are instructive. In Kehar Singh's case (1988) it said that the Thakkar Commission report on Indira Gandhi's assassination was but "a recommendation of the Commission for consideration of the government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case."

In Sham Kant vs. State of Maharashtra [(1992) Supp. (2) SCC 521 at page 532)], Justice S. Ratnavel Pandian held that the findings of the Commission of Inquiry were "not binding on this Court when the Court has arrived to (sic.) its own conclusion on the independent assessment of the persuasive evidence..."

Attorney-General G. Ramaswamy was wrong in contending before the Jain Commission on August 27, 1992, that it could not requisition any document from or summon any witness examined by the trial Court. "Examining same witnesses could be infringing upon its jurisdiction." But nor was Jain entitled to disregard that jurisdiction and encroach upon it. Both extremes were wrong ("A mess of a probe", Frontline, February 24, 1995).

There followed a series of excesses by the Commission which threatened the orderly course and integrity of the trial proceedings. It brazenly violated the Commissions of Inquiry Act, 1952, and established precedents. Months before Ramaswamy took the stand he did, Jain announced his, and that too in a press interview. The Indian Express of May 7, 1992, reported: "The Jain Commission has decided to form its own investigating team, to evaluate the findings of the CBI's Special Investigating Team in the Rajiv Gandhi case and search for further evidence, if necessary. Justice M.C. Jain, heading the panel probing the conspiracy angle of Rajiv Gandhi's assassination, has asked the Home Ministry to provide him with a particular Inspector General in CBI, fluent in Tamil, for the assignment. The I.G. will go after leads missed by the SIT. The Commission will examine the entire SIT material and verify its correctness," Justice Jain told The Indian Express. "Under the I.G. will be a team of investigating officials."

Thus, the Commission would sit in judgment on the SIT's investigations as well as draw on its labours. "Almost our entire work is going to be linked with what SIT tells us."

Three years later, in an order made on December 28, 1995, Jain asserted that "the Commission is entitled to know as to how and in what manner the SIT proceeded with the investigation. It is only after looking into the record" - such as the case diary before the Designated Court - "that the Commission would be able to know as to what leads have not been investigated and investigation of what leads has not been completed, who are the suspects and what evidence is available against them..." (emphasis as in the original).

This order was in flagrant breach of the Act, yet, as we shall see, the Supreme Court declined to intervene. In 1962, the Law Commission noted in its 24th Report, a lacuna in the Act of 1952. Commissions of Inquiry did not have an investigative machinery. The Act was amended in 1971 to insert inter alia Section 5A which reads thus: "(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the service - (a) in the case of a commission appointed by the Central Government, of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be."

It is this agency, so appointed, that is required to "submit a report" to the Commission (Sub-section 4). Sub-section (5) clearly says: "The Commission shall satisfy itself about the correctness of the facts stated and the conclusions, if any, arrived at in the investigation report submitted to it under sub-section (4), and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit)."

The Commission cannot utilise the services of any official investigation agency except "with the concurrence" of the Government concerned. The SIT's services were not sought by invoking Section 5A. The Commission had no jurisdiction over it at all. It tried to circumvent Section 5A. This fundamental fact has been completely overlooked. The SIT could not be responsible to the court as well as the Commission. Obviously aware of the limitations of Section 5A, Jain properly sought the Government's assistance, and tacit approval, to secure an I.G. in the CBI who was fluent in Tamil. He could not have been oblivious to the fact that his "own investigating team" had no more right "to evaluate" the findings of the SIT than he himself had. Whatever happened to his team? The Report sheds no light.

The precedent of the Madon Commission is of no relevance for two reasons. It was set up before the 1971 Amendment. The Maharashtra Government led the evidence first and its police tendered evidence. It was a police witness who revealed that an altogether different case of conspiracy had been filed by the police itself before the sessions Court contrary to the police case before the Commission. The situation before Jain was altogether different. It was the Commission which allowed all and sundry to depose, not to facts in their knowledge, but express opinions in the form of conspiracy theories that were at variance with the SIT's case before the Court.

The proceedings from July 1993 to January 1996 make sad reading. First came Jain's order on July 2, 1993 in which he made four points: (1) "The Commission for the present would not go into the areas covered by the charge-sheet", only the ones "outside" it and probe into the role of "persons and agencies other than those against whom charge-sheet has been filed" (emphasis as in the original). (2) The SIT would provide him with its case diary and other records "keeping in view the requirements" of the trial Court but "simultaneously also seeing that the progress in the inquiry by this Commission is not hampered or delayed", an order as impracticable as it was illegal. (3) Matters covered by the Verma Commission would be outside his remit. (He flouted this in his Report). (4) "The Commission shall take into account the sequence of events beginning from 1981 till May 21, 1991, the day of assassination."

The last point was reaffirmed in a second order on November 17, 1993. Counsel for all the parties but two objected to 1981 as the cut-off date and submitted that July 29, 1987, the date on which the Indo-Sri Lankan accord was signed, be accepted, instead. The charge-sheet also traced events since that date. Even the advocate for the All-India Congress Committee adopted this stand.

These orders were challenged by an advocate, Mushtaq Ahmed, in a writ petition in the Delhi High Court. On May 2, 1994, Chief Justice M.J. Rao and Justice Anil Dev Singh made an interim order: "The Commission is hereby restrained from going into the events from the year 1981 to 28th July 1987. It can, however, go into the events on or after 29th July, 1987 but subject to the further condition that it shall only go into the areas not covered by the charge-sheet in the Designated Court at Poonamalee, near Chennai. It can proceed to hold an inquiry in respect of persons and agencies, other than those against whom charge-sheet has been filed in the Designated Court, who are allegedly responsible for conceiving, preparing, conspiring and planning the assassination of Shri Rajiv Gandhi, former Prime Minister of India."

Contrary to established practice, Jain did not merely submit to the orders of the court. He fought like a litigant, using undignified language. On February 1, 1995, Chief Justice M.J. Rao and Justice D.K. Jain delivered final judgment which reflected an excessively keen desire to rebut ill-founded and motivated criticisms of the interim order by the Sonia brigade: "Much has been said after this court's order dated 2-5-1994 that this court had restricted the scope of the inquiry by the Commission to the extent not covered by the SIT charge-sheet in the Designated Court...Firstly, the court did not (barring the issues relating to the period from 29-7-1987) do anything than adopt word for word the self-restraint order dated 2-7-1993 passed by the Commission that it did not propose to go into areas covered by the charge-sheet in the Designated Court.

"We are rather sorry to say that the self-restraint imposed by the Commission on itself in its order dated 2-7-1993 was unfortunately attributed to restraint allegedly imposed by this court in its order dated 2-5-1994...There has been too much of a misinformation and disinformation in this behalf...

"We consider it not necessary to continue our order dated 2-5-1994 (except in relation to the aspect that the inquiry will cover the period from 29-7-1987). We say so not because there was anything wrong in our order dated 2-5-1994, but because we deem it unnecessary to continue our order dated 2-5-1994 to that extent... As to the question whether the inquiry could be for the period from 1981 to 29-7-1987, the matter will be heard separately and to that limited extent, our interim order dated 2-5-1994 will continue, until further orders. We have chosen to pass this detailed order mainly to dispel the misinformation and disinformation being circulated that this court had restricted the scope of the inquiry into matters outside the charge-sheet in the Designated Court."

The court was needlessly apolegetic, besides being factually wrong. If it was indeed, so content with the Commission's self-restraint, where was the need for its own order of restraint? Its order was sound and represented its own judgment.

Finally "it will be for the Commission to combine the delicate tasks of completing the inquiry and in the light of its own intent and desire not to jeopardise or prejudicially affect the case in the Designated Court."

On November 16, 1995, the same Bench of the Delhi High Court made another order which also reflected its extreme sensitivity to those criticisms. "We pointed out that there was no truth in the allegation that this court had cut down the scope of the inquiry by the Commission."

Who activated the court this time? "The Commission has moved this court to permit it to go into all aspects of the reference right from 1981 inasmuch as the Commission has proposed to go into right from 1981 and has desired the vacation of the stay and inasmuch as the Commission has said that it will keep in mind the aspects which we have referred above, it is not necessary to restrict the inquiry to events after 29-7-87. It is possible that the Commission may go into the role if any played by LTTE exclusively or of any other person/agency in collaboration with the LTTE, or by any other person/agency even without collaboration of LTTE. Those questions are for the Commission to decide." No reasons were given by the court. Its approach was unfortunate.

Jain made no secret as to what he was after - the SIT's records. In one of the very many press interviews he gave, he said, "the main problem is the High Court order because of which we are not getting the all-important SIT papers" (Sunday; January 7, 1995).

The Government of India filed in the Supreme Court two petitions for special leave. One was to appeal against the High Court's judgment of November 16, 1995, and the other was to appeal against a 30-page order of the Commission dated December 28, 1995, on the AICC(I)'s application that the CBI/SIT be directed to file a photocopy of the case diary, crime file and its investigation records.

The first Special Leave Petition was heard by Chief Justice A.M. Ahmadi and Justice Sujata V. Manohar on January 15, 1996. Permission was given for its withdrawal, their order states, "as the Government would take such action as it deems necessary. The SLP will stand dismissed as withdrawn."

This was prompted by an angry fusillade from Chief Justice Ahmadi. His reason was - since the Government has the power to amend the Jain Commission's terms of reference, why does it ask the court to compel the Commission to abide by them? By this reasoning, well might the court ask the Government to secure amendment of an ordinance or any executive order rather than seek its help to compel an authority acting under it not to violate it.

Chief Justice Ahmadi said: "It is the Government which has appointed the Commission, you have made the terms of reference and it is the Government which can change the terms of reference. Why do you want the court's intervention." When Solicitor-General Dipankar Gupta pointed out that the petition had raised a number of legal issues, the judge said: "Don't thrust this matter on the court... The Government should not have filed this petition... unless it thought the court did not have sufficient work." This was no way to deal with a petition for leave to appeal against a High Court order made after proceedings protracted over two years, in respect of orders by a Commission of Inquiry which were manifestly wrong and productive of great public harm.

But Chief Justice Ahmadi went to the length of saying: "You should not have gone to the High Court. Why all this exercise if you have powers to amend the terms of reference? You can still do it unless you say that you are helpless." This revealed sheer non-application of the mind. The Government was not petitioner but respondent before the High Court. Gupta was directed: "Tell the Government that if it feels helpless in the matter, then only it should bring the matter before the court."

This was irrelevant. The court had before it two orders of a statutory body, set up under the Commissions of Inquiry Act, 1952, which were in flagrant breach of its terms of reference, and two judgments of the Delhi High Court in respect of them. None of the four was convincing.

The court owed a clear duty to restrain the Commission from violating the Act and established norms. The theory of causation, which Jain advanced, was absurd enough to invite judicial reproof. So was the choice of 1981 as the cut-off year. So, indeed, was its appetite for the SIT's papers.

The SLP on the Commission's order came up before another Bench, comprising S.P. Bharucha and S. Saghir Ahmad 10 days later on January 25, 1996. Its order reads thus: "We have read the terms of reference to Jain Commission. They are very broad. Only that is not covered which was before the Verma Commission. If so advised, the appellant, which has itself made the reference, can amend the terms so as to exclude from the purview of the Jain Commission, altogether or for the time being, matters presently before the Designated Court. Our interference is not called for. The SLP is dismissed." So perfunctory an order did no justice to the complex issues before the Bench concerning the Commission's power to send for records before the trial Court. They did not hinge on the terms of reference but on the law which the court chose not to consider. It was the court's order which was unduly "broad". Jain could now proceed without any check and he did so from January 1996 onwards. The "Interim" Report of August 1997 is likely to be followed by a final one in February.

The only assurances the Commission's counsel gave the High Court was that it would sit in camera whenever any matter concerning the accused came up and questions will not be allowed if they covered "aspects coming within the purview of the charge-sheet".

The court made three orders to protect the proceedings from being derailed. One, on May 20, 1992, was made under Section 16(3) of the Terrorist and Disruptive Activities (Prevention) Act to keep the identity of some 179 witnesses and the court proceedings secret. Another was made on the application of the SIT pursuant to a direction from the Commission to its chief, D.R. Karthikeyan, to seek the court's permission "if need be" to make the case diary and "investigation record available for perusal by the Commission."

Judge Sidickk ruled on July 27, 1995, that "if this court permits the SIT, CBI, to produce the investigation records before the Jain Commission, then it will only amount to grant of stay of the trial of this case by this court itself. This court cannot be a party to such a course of action. Therefore, it is not wise and expedient to permit the SIT, CBI, to produce the investigation records before the Jain Commission."

Frontline reported ("On with the trial", August 25, 1995): "One of the defence counsel filed a counter-petition that the case diary and the investigation records should be handed over to the Jain Commission, with photocopies kept in the court. Counsel representing some other accused claimed that several persons who deposed before the Commission had absolved the Liberation Tigers of Tamil Eelam (LTTE) of blame. In addition to the documents being sent to the Commission, they wanted all those who deposed in favour of LTTE to be summoned as court witnesses or called in as defence witnesses."

This is how the Jain Commission's proceedings threatened to affect the trial, a danger to which those who professed interest in bringing the guilty to book turned a blind eye. In a talk with presspersons on August 30, 1995, Karthikeyan gave a detailed and convincing account of the entire proceedings since 1991. Nor was he averse to taking Jain into confidence. It was the integrity of the court's proceedings and its records that worried him. On April 25, 1996, the court made another order permitting the production of copies of the SIT's investigation records for perusal by the Commission alone.

Jain frequently cited Section 4(d) of the Act which empowers a Commission of Inquiry to requisition "any public record or copy thereof from any court or office." Typically, he would ignore the qualifications. Section 4 says it "shall have the powers of a civil court while trying a civil suit" under the Code of Civil Procedure in this and other respects such as summoning witnesses. No such court will ask for records in a pending criminal trial, let alone a case diary.

Way back in November 1992, Union Home Secretary, Madhav Godbole, a highly respected civil servant, filed an affidavit before the Jain Commission in which he took a reasonable position. He did not ask the Commission to lay off, but so interpret its terms of reference as not to prejudice the trial. He took a stand on principle - it had no jurisdiction over the SIT.

He said: "The Jain Commission is not intended to review or scrutinise the investigation of the SIT. The Government has full faith in the investigation of the SIT and it is on the basis of this investigation that the charge-sheet has been filed before the Designated Court. The Government does not intend or wish to jeopardise the trial of the accused. Under these circumstances, I submit that the terms of reference of the Jain Commission ought to be interpreted in such a manner as to ensure that the trial is neither prejudiced nor any accused nor any witnesses cited by the SIT is called upon to give any evidence before the Jain Commission or make any statement before it." The Madon Commission took a similar position.

"Faith in the investigation of the SIT" was fully vindicated on January 28, 1998. None can say that of the appointment of Justice Milap Chand Jain to the Commission of Inquiry.