ANALYSIS

 

Justice gone awry

The truth about the monumental fraud and grave failure of the military justice system involved in the Samba spy scandal needs to be unravelled without delay.

A. G. NOORANI

The first of a two-part article

THE judgment pronounced on December 21, 2000 by Justices K. Ramamoorthy and Devinder Gupta of the Delhi High Court in the Samba spy case created a stir - as it was bound to. But the ripples subsided soon and those who perpetrated one of the gravest wrong s in the annals of military justice in the democratic world might go scot-free if the matter is not pursued further. The ones who are charged by the victims with perpetrating the wrongs, whom the court exonerated, might well be innocent. But they owe a d uty to account to the nation. Silence is not an option when there is a duty to speak. That applies very much to the Government of India as well. On December 22, an Army spokesman told the Press Trust of India: "We are studying the judgment and any action would be contemplated after carefully going through it." How much time do they need for this exercise?

CHRISTIAN VIOUJARD/GAMMA
Part of an Indian Army contingent at the Republic Day parade.

Incidentally, this judgment was reserved on November 11, 1997 and was delivered three years later and only after one of the appellants, Major N. R. Ajwani, moved the Supreme Court to order its delivery. It came before the apex court gave its order .

BETWEEN August 24, 1978, and January 23, 1979, 50-odd persons who had worked in the 168 Infantry Brigade and its subordinate units at Samba, 40 km from Jammu on the international border, were arrested on charges of spying for Pakistan at the instance of the Directorate of Military Intelligence (MI). Its investigations involved practically the whole officer cadre of the Brigade. Those arrested included a Brigadier, three Lieutenant Colonels and a number of Majors, Captains, Junior Commissioned Officers ( JCOs), Non-Commissioned Officers (NCOs) and personnel of other ranks, plus 11 civilians who had worked in the Samba sector. They were all taken into custody at the instance of two self-confessed Pakistani spies who worked as gunners in the Indian Army - Sarwan Dass and Aya Singh. In December 1994, Sarwan Dass swore an affidavit and appeared at a press conference to admit that he had falsely implicated the men. In December 1990, Aya Singh was shot - while crossing the India-Pakistan border. These victims received justice only in December 2000, and not fully either.

Sarwan Dass first went to Pakistan in February 1971. He began working for its Army's Field Intelligence Unit at Sialkot on a regular basis from February 1974. His "handler" there was Major Akbar Khan. He persuaded some colleagues to join in the sport. Ay a Singh was one of them. Sarwan Dass was arrested for the first time in June 1975 by his artillery unit, which was then located in Madhya Pradesh, on suspicion of espionage. This followed reports from the Intelligence Bureau (I.B.) from Samba. He jumped off the running train at Jalandhar, while being taken to Pathankot, on July 2, 1975, went over to Pakistan and stayed in Sialkot. On February 10, 1976, he was arrested after his return. The police handed him over to the MI on April 10, 1976 and he remain ed in its custody until July 1978.

One vital safeguard that military law provides is the prompt recording of the summary of evidence by the Commanding Officer once he detects an offence and a court of inquiry confirms suspicion. The charge-sheet and a general court martial (GCM) fo llow.

Sarwan Dass is tried; not for espionage but for absence without leave, and the court martial sentences him in August 1978 to seven years' rigorous imprisonment and dismissal from the Army. On March 17, 1979 he is reinstated. By then, while in custody, he had implicated two prime victims - Captain Ranbir Singh Rathaur and Captain A. K. Rana. Rathaur was arrested on August 24, 1978 and Rana on October 27, 1978.

Aya Singh was arrested by the I.B. while crossing into India in July 1975 and, like Sarwan Dass, was handed over to the MI. Like him, again, he is tried only for absence without leave, not for espionage, and sentenced to seven years' rigorous imprisonmen t and dismissal. But only to be reinstated in March 1978, with remission of the sentence, soon after he implicated Rathaur and Rana. The rake's progress is interesting - discharged from the Army in 1983; arrested by the Jammu and Kashmir Police in Februa ry 1985 as he tried to enter India from Pakistan; released on bail in 1986; escaped to Pakistan in January 1987; re-arrested in India, as PTI reported, on July 2, 1987; sentenced to two years' imprisonment; and shot dead in December 1990 - while crossing the border.The Illustrated Weekly of India (June 17, 1990) reported: "Investigations reveal that Aya Singh, who was considered to be close to a former Forest Minister in the erstwhile Farooq Abdullah Cabinet, continued to be a Pakistani informer . Aya Singh, who has been working for the terrorists in Punjab, as revealed by letters intercepted by the police, was re-arrested in July 1987 and it is on record that to date Military Intelligence has not interrogated him. About Aya Singh, R. Gop al, Capt. Rathaur's lawyer, points out: 'Would the Pakistanis trust him if he had really been responsible for busting a major Pakistani spy ring as his testimony in the Samba case claimed?"

It is on the testimony of these two sordid characters that many lives were blighted by the MI. Confessions by their victims were extracted by torture which claimed the life of Havaldar Ram Swaroop. Personnel of courts martial shut their eyes as me n were produced before them in shackles, broken in spirit with evidence of torture screaming from their person. Only one man had the moral courage to stand up. He was Lt. Col. Ved Parkash who saw action in four wars, served as General Staff Officer in th e Intelligence Directorate at Army Headquarters, and was a member of the GCM which, over his protests, awarded 14 years' rigorous imprisonment to Capt. Rana. His is by far the most informative book on the subject with a detailed description of the Army s et-up as it operated (The Samba Spying Scandal; Trishul Publications, Noida; Rs. 230). The writer is indebted to this work. Rathaur has written his memoir (The Price of Loyalty; Siddharth Publications, New Delhi; Rs. 400). One must not forg et B.M. Sinha's pioneering work The Samba Spying Case (Vikas; 1981).

Rathaur served as intelligence officer from February 13, 1974 to January 10, 1976 and was succeeded by Rana. He had rendered yeoman service and reported the 11 Pak. Corps. The prosecution case defied belief. Sarwan Dass was asked by his handler Major Akb ar Khan to bring along two Indian Army officers on January 10 or 11, 1976 which, he claimed, he did. That very night, however, Rathaur was being "dined out" and Rana "dined in" at the Officers' Mess, Samba. Another charge was that earlier, "in the last w eek of July or first week of August 1974", Rathaur was lured away, "was made drunk", put in a taxi, taken to Palota (in India) where Aya Singh slipped away, contacted the Pakistan Rangers Border Post at Gandial and informed them of Rathaur's presence at Palota. They captured Rathaur as well as Capt. Sewa Ram Nagial. Aya Singh, his relative, claimed to have won over Nagial and taken him to Major Khan earlier on July 17, 1974 - that is, after entering Indian territory at Patole. Rathaur was recruited as a n agent by Khan.

But it was not until March 28, 1978, nearly four years later, that Aya Singh disclosed this to Capt. Sudhir Talwar of the MI. As it happened, Rathaur had gone on duty to Yol in Himachal Pradesh on July 14, 1974 and proceeded from there on home leave to h is village in that State on July 17 until August 14. He had incontrovertible proof of his presence there, in the form of records of the Electricity Board and self-drawn cheques on the local bank.

Rathaur was arrested on August 24, 1978 and tortured mercilessly. "I was forced to write 11 or 12 statements, implicating many others besides Captain Rana." Rana was arrested on October 27, 1978. Rathaur was convicted by a court martial on August 2, 1979 and sentenced to 14 years' rigorous imprisonment on the testimony of those two Pakistani spies and his own "confession". The Chief of the Army Staff, Gen. O.P. Malhotra, confirmed the sentence on February 16, 1980. He was released from prison only in Ma y 1989 and received a letter from the authorities granting 50 per cent of service gratuity and death-cum-retirement gratuity. Who induced this pang of conscience will be brought out shortly.

Rathaur had been "made to confront" Rana in prison on November 3, 1978 and forced to dictate a statement to him. "It was all a concoction, manufactured by the MI Directorate." Rana also received "the treatment" and implicated 51 others. They were arreste d in a midnight swoop on January 22-23, 1979. The National Herald reported it on April 10, 1979. The Samba spy case was now out in the open.

TWO interesting features of the scandal deserve note. One is that both Sarwan Dass and Aya Singh were arrested on the basis of reports by officials of the I.B. in the Samba area and were interrogated initially by the I.B. Lt. Col. Ved Parkash records: "T hey disclosed the names of some of their civilian collaborators from the local area. But they did not implicate any Army personnel in their nefarious activities, during their interrogation by the I.B. officials. On completion of their interrogatio n and other formalities, the I.B. handed over Aya Singh and Sarwan Dass, to the Army authorities, MI officials to be specific, for necessary action as deemed fit." It was to the MI that they 'disclosed' the names of Rathaur and Rana - a few years late r and immediately before or after their sentence was remitted.

Secondly, following the arrest of 53 Army officers in India on January 22-23, 1979, Pakistan Military Intelligence arrested 107 Army officers on charges of spying for India.

Thanks to Ved Parkash's book, we have a full, authoritative account of the fraud that was Rana's court martial. Rana was not produced as prosecution witness at Rathaur's trial. But Rathaur gave evidence for the defence at Rana's trial on August 23 and 25 , 1980, in fetters and handcuffs when he was in Tihar Jail.

Lt. Col. Ved Parkash was a "senior member" of the court martial next only to the presiding officer, a Brigadier in seniority. The other three were Majors. The GCM assembled on April 24, 1980 and sat for 58 days until September 15. Even before the conveni ng order reached him, one "Brigadier HTH" contacted him and, using an expletive against the "spies", advised Ved Parkash, "Don't let him (Capt. Rana) go scot-free." Rathaur deposed to his own torture and the statements he was forced to make against Rana and others.

The falsehoods and improbabilities in the prosecution case are glaring. Rana was alleged to have gone all the way from Samba to Sialkot in return for such sums as Rs.1,000 to Rs.3,000 for a trip. "Why does every prosecution witness mouth stereotyped stat ements? Capt. Rana always leaves on his night errands at 7-30 p.m. His jeep is always driven by a driver. That the prosecution accepts; after all, Capt. Rana's jeep is authorised a driver. But not once does the prosecution deem it necessary to produce th e driver before the GCM."

The prosecution alleged that Rathaur and Rana were met by Pakistani intelligence men at their Kandral post to receive documents from them. Kandral is, in fact, in Indian territory, and pages 1-4 of Sinha's book describe his visit to the village. " It had caused one of the many rows with the presiding officer of the GCM. The author had asked him in one of the closed court deliberations as to why the court could not seek clarification on the issue from the prosecution. The presiding officer had repl ied: "There is nothing to clarify. We must accept it is in Pakistan. In any case, it is the normal tactics of the Defence to involve the court in such minor and even irrelevant things... Moreover, all such ch border hamlets will not be depicted on the ma p...."

Apparently, forced to confess, Rathaur mentioned Kandral. But the MI ought to have known better. However, at the court martial Rathaur said it was an Indian post. He had found the prosecution improving its case each time as he spoke the truth. "Since I w as tortured to confess my going across the border, I deliberately chose the night 10/11 January 1976 for the purpose. It was the night I was given official dining-out, along with Maj. Manocha, OC Brigade signal company. This was a fact which could be sub stantiated from the official records. When required, I could prove it false."

Sarwan Dass subsequently changed the date to "two to three days" before the Lohri (festival) 1976, which always falls on the 13th of January, as he put it. And Sarwan Dass testified that he was at Kandral during his stay in Pakistan. "Through an open win dow" he could also count the exact amount of money Rathaur and Rana received from Major Khan. A grand sum of Rs.44,000 in all for Rathaur from July 1974 to August 1977, according to the prosecution, Parkash records.

"No particulars about the missing documents, like numbers and dates in case of the letters or file numbers in case of the files, were supplied to the court. In the Army, detailed instructions exist as to how to act if certain secret documents are found m issing. A court of inquiry is mandatory to establish the fact of this loss and it has to attribute responsibility to the individual/individuals. We put the following questions to the prosecution witnesses concerned: (a) Was a court of inquiry held in th e case of missing documents? (b) What were the details, serial numbers, letter numbers and dates of the missing documents? (c) At what stage was the matter reported to the higher headquarters? (d) What action was taken against the individual/individuals responsible for the lapse?"

Ved Parkash writes: "To our surprise, the Prosecution refused to answer any of these questions, claiming that the disclosure will jeopardise the national interest. It was a strange and incredible argument. The documents are already in the hands of the en emy. The argument that the disclosure of some specifics, viz., numbers and dates of these documents, will jeopardise the national interest was rather stretching the point. What was worse was that the court martial found itself not only helpless but also a willing tool in the hands of the Prosecution." On such evidence Rana was sentenced to 14 years' rigorous imprisonment.

Earlier courts martial in 1976 and 1977 had honourably acquitted Captains Nagial and Kochar whom Aya Singh had sought to implicate. Ved Parkash wonders what brought about the change. Neither the I.B. nor the Border Security Force (BSF) believed Rana's st atement in which he had been "forced to name some persons" from these agencies. "The entire story is so simple and uncomplicated in detail that it beats one's imagination. Still it is this story that has been believed, by the Military Courts. About a doz en officers and men were court-martialled and given life sentences in jail and many more were dismissed summarily by the Central Government under the provisions of Section 18 of the Army Act, citing the doctrine of the presidential pleasure, without assi gning any reasons."