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A report and an agenda

JAIN COMMISSION REPORT The Action Taken Report on the Jain Commission's Final Report shows that the BJP-led Government has chosen to ignore the facts and use Justice Jain's "findings" to assault its political opponents. PRAVEEN SWAMI in New Delhi POSTMODERN theorists will perhaps be the only category to be delighted by the Bharatiya Janata Party-led coalition Government's Action Taken Report (ATR) on Justice M.C. Jain's Commission of Inquiry. A decisive triumph for fiction over fact, the ATR illustrates the stark reality that the search for the truth about former Prime Minister Rajiv Gandhi's assassination has been at best a peripheral concern of the Jain Commission and its various political sponsors. The BJP-led Government has decided to refer Justice Jain's enterprise, which spanned six years, to a Multi-Disciplinary Monitoring Agency (MDMA) under the Central Bureau of Investigation (CBI). The manufacture of non-facts on the assassination is therefore almost certain to continue into the 21st century, the age into which Rajiv Gandhi ironically sought to take India. Those who see the MDMA as part of a harmless game of political football would do well to consider its very real impact on the pending appeals by 26 persons sentenced in the assassination case. At the heart of the MDMA's problems will be the fact that the ATR does not give a cogent account of just what it is supposed to investigate. Reliable sources told Frontline that CBI Director Trinath Mishra, consulted by the Government on its formation, made clear that he had no reason to dispute the findings of the Special Investigation Team (SIT) which probed the assassination. Although the ATR proclaims that the "Government accept(s) the stand taken by the CBI on the role of the accused persons
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in the assassination of Shri Rajiv Gandhi as already established through the judgment of the Designated Court," the fact is that its decision to set up the MDMA suggests exactly the opposite. The SIT's charge-sheet, on the basis of which 26 persons have been convicted and sentenced by the Designated Court, rests or falls on the proposition that Liberation Tigers of Tamil Eelam (LTTE) supremo V. Prabakaran ordered Rajiv Gandhi's assassination and a conspiracy followed from that order. If a different conspiracy did exist, as Justice Jain has suggested, the SIT's case would be significantly eroded, whatever the protestations of the Commission and the Government might be. Even a cursory study of the Jain Commission Report and the ATR makes it evident that the conspiracy that the MDMA will seek to uncover will be very different from the one that the SIT established through painstaking, scientific investigation. Among the star subjects of the MDMA probe will be godman Nemi Chand Jain, better known as Chandraswami. Volume II of the Jain Commission Report gives central importance to Chandraswami's supposed role in the assassination, arguing that taking into account "the entire evidence, material and circumstances brought on record into consideration, a doubt does arise regarding Shri Chandraswami's complicity and involvement." Justice Jain's central argument is that the godman had links with international intelligence agencies as well as with the failed Bank of Credit and Commerce International (BCCI), which in turn was linked to the LTTE through accounts held by its arms procurer Kumaran Padmanabhan. This set of links, the Report affirms, "requires further probe". When the MDMA seeks to do this, it will be confronted by the curious fact that the Government which has created it does not itself vest the Commission's evidence against Chandraswami with any great credibility. On page 205 of Volume II, Justice Jain has pointed to evidence provided by former Cabinet Secretary Zafar Saifullah on Chandraswami's links. "The statement of Shri Zafar Saifullah shows links of Shri Chandra- swami with CIA (Central Intelligence Agency) and Mossad and there were some intercepts relating to Shri Chandraswami emanated from Israeli Intelligence Agency MOSSAD (sic.)," Justice Jain found. "This circumstance which has come in the deposition of Shri Zafar Saifullah is of great significance as he has deposed on the basis of knowledge gained by him while functioning as Cabinet Secretary and while interacting with the authorities in the concerned intelligence agency." Saifullah had said that while he had not seen the intercepts, officials had told him of their existence and of Chandraswami's links with major international intelligence agencies.

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But was Saifullah's evidence, as Justice Jain would have us believe, "of great significance"? Even the authors of the ATR appear not to believe so. Saifullah (page 27 of the ATR records) was examined in camera, and the Central Government counsel therefore had no opportunity to examine him. "In his deposition," the ATR notes, "Shri Saifullah has not given any specific details about the messages." "However, after the deposition of Shri Saifullah, interrogatories were sent by the Commission to R&AW (Research and Analysis Wing) and IB (Intelligence Bureau) and they have clarified the position to the Commission that they had no messages as referred to by Shri Saifullah." Put simply, the intercepts Saifullah had mentioned in his deposition did not exist. This leaves open only the possibilities that he had invented them or he had been misled by those who provided him information. Indeed, Saifullah's bitter battles with former Prime Minister Narasimha Rao's Special Secretary A.N. Verma, and senior RAW officials associated with him, are well known. There is at least some reason, therefore, to believe that Saifullah's testimony was associated as much with past factional battles as with hard evidence. If the Government does not agree with Justice Jain that evidence of Chandraswami being an agent of international intelligence agencies exists, what does it expect the MDMA to pursue? There are no answers in the ATR, only more mysteries. One key charge against Chandraswami in the report is that he received bank drafts in foreign currency worth a total of $ 11 million between October 9, 1985 and February 14, 1986, which was subsequently paid into the account of his associate and arms dealer Adnan Khashoggi in the BCCI. Page 217 of Volume II of the Report seeks to link this financial wrong-doing with the assassination, arguing that Kumaran Padmanabhan's "account in the BCCI, Bombay Branch, prima facie establishes link of LTTE with the Bank." The ATR differs with this crucial second contention On page 28, it records that the accounts had been investigated by the SIT: "(i)However, these transactions were not found to have any relevance to the conspiracy to assassinate Rajiv Gandhi." The MDMA, the ATR promises without a blush, will investigate the drafts, although those transactions are already under investigation by a separate agency. SHANKER CHAKRAVARTY

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Rajiv Gandhi. THE MDMA's other major enterprise will be discovering if a Khalistani terrorist group was in some way involved in the assassination, with Chandraswami acting as a broker. This commitment in the ATR stemmed from Justice Jain's finding that "no definite clinching evidence establishing the link between Khalistani extremists and LTTE has come before the Commission, but the circumstances as considered above do warrant further probe." Those circumstances consist principally of the deposition of Mahant Sewa Das, a peripheral Akali politician, that Khalistan ideologue Jagjit Singh Chauhan had told him of a plan to assassinate Rajiv Gandhi. Sewa Das, said to have been recruited by former Prime Minister Chandra Shekhar to negotiate dialogue with Chauhan, claimed that members of the LTTE and other terrorist groups had been present at a meeting in Chauhan's home when this disclosure was made. Just why Chauhan volunteered this information does not become evident from his account, but Justice Jain nonetheless found other reasons to find him credible. He did so in a series of astonishing claims. On page 116 of Volume II, Justice Jain admits that the "statement of Mahant Sewa Das has not been found worthy of credence so far as the presence of representatives of the LTTE in the London meeting." This was because the politician had made no mention of their presence in pre-assassination communications with Rajiv Gandhi and the President of India, communications which had none-too-hidden political subtexts. But, Jain continues, other evidence affirms Sewa Das' basic proposition, including a joint press release issued on May 22, 1991 to the Punjabi newspaper Ajit by the Khalistani Guerilla Force and the Tamil Guerilla Force. The fact that no one had heard of either group before or subsequently, and that their claim that Rajiv Gandhi was killed using a satellite-signal triggered explosive was disproved by expert evidence, did not deter Justice Jain from coming to an astounding conclusion. "The very fact," he asserts, "of the press release having been issued the same night involving two different terrorist organisations becomes relevant and assumes importance from the point of view of establishing links between the two, and therefore it is quite possible that they may have acted in concert on the basis of which the press release was issued." Is it? Frontline's study, admittedly brief given the constraints of time, of six 1991 volumes of the authoritative ''Punjab Police Intelligence Digest'', compiled by O.P. Sharhttp://www.flonnet.com/fl1517/15170290.htm Page 4 of 8

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ma, the former Director-General of Police, who is now Governor, did not find a single reference to the Khalistani Guerilla Force, either as a principal organisation or as a front. Although reports did exist of Khalistani groups, by this time in need of arms and logistical support, seeking to make contact with other terrorist formations, there was no report that any such dialogue or arrangement had been entered into. But Justice Jain is willing to discredit the central thrust of the SIT finding, that the LTTE acted alone and in pursuit of its perceived interests, simply on the basis of a dubious witness whom he himself attributes only limited credence. To this, he appends Palestinian Authority leader Yasser Arafat's pre-election warning that he had "information that Rajiv's enemies will use the election period to get rid of him." Arafat's list of suspects included none that could not have been predicted by anyone who read Indian newspapers occasionally, "the LTTE or Sikh extremists". No effort was made by Justice Jain to establish Arafat's credentials on this issue, best illustrated by the Palestinian leader's recent claim that he brokered the 1972 Shimla Accord between Prime Ministers Indira Gandhi and Zulfikar Ali Bhutto. But the Khalistan spice is essential to Justice Jain's curry, for without it the ritual flaying of Subramanian Swamy would not have been possible. The Jain Report points to the Janata Party president's undisputed and controversial association with Chandraswami, but is positively ham-handed in its efforts to link him to the conspiracy. In essence, it centres around a visit Chandraswami and Subramanian Swamy are supposed to have made in June-July 1995 to London. Chandraswami, during his crossexamination by All India Congress Committee(I) counsel R.N. Mittal, was asked whether the purpose of that visit was to persuade Jagjit Singh Chauhan to turn approver. Chandraswami denied the proposition, and portions of his testimony contradicted Subramanian Swamy's. In view of these contradictions, Jain concluded: "It remains a mystery for what purpose and object both of them visited London, and it can be said that the suggestion given by R.N. Mittal to Shri Chandraswami may be true." If, as Justice Jain has insinuated, terrorists linked to Chauhan acted with Chandraswami's aid, why the godman would choose to make his way to the gallows by making Chauhan depose is far from clear, but is no more fantastic than Justice Jain's other observations. MD. YUSUFF

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Chandraswami. Why the BJP-led Government chose to ask the MDMA to investigate Subramanian Swamy's 1995 visit is unclear, since there is obviously no cogent account of what his complicity in the assassination might be. Indeed, Justice Jain's principal complaint against the politician is that he failed to disclose the sources of information he claimed to have on the assassination. The Jain Commission also expressed its ire with Subramanian Swamy's conduct as a witness. "It would appear," Volume VIII records on page 231, "that a consistent and persistent effort is there on his part not to answer the questions which are most relevant in order to find out the truth." The solution to that problem, as the ATR itself acknowledges, was available to Justice Jain under Section 5 of the Commissions of Inquiry Act. Subramanian Swamy could have been compelled to give honest evidence, or else face punishment. Justice Jain preferred not to take that course, for reasons he best understands, but chose to link him insidiously with the assassination. The BJP-led Government, with which the politician has in recent times been engaged in a high-profile battle, seized on the opportunity. Politics is also the key motivation in the ATR behind the disingenuous decision to make Tamil Nadu Chief Minister M. Karunanidhi a subject of the MDMA probe . Reference to Karunanidhi in the Report is cursory, pointing only to the fact that he was not interrogated on what Justice Jain believes were assassination-related issues. Indeed, Volume V of the Report marks a significant retreat from some of the more outrageous claims of the Interim Report. In Volume VII of that treatise, Justice Jain had argued that from "the evaluation of the material, the conclusion is irresistible that there was tacit support to the LTTE by Shri M. Karunanidhi and his Government and law enforcing agencies." This, Justice Jain's many critics had pointed out, was in part true, but could equally well have been said of a large spectrum of Tamil Nadu's political formations. Chief Minister M.G. Ramachandran had gone public with displays of financial and moral support for the LTTE, and Rajiv Gandhi had himself met emissaries of the terrorist organisation in New Delhi shortly before his killing. The critique, which rested on the premise that sympathy was not the same as complicity in murder, evidently weighed on Justice Jain during his latest act of authorship. But not on the BJP-led Government. Page 43 of the ATR deploys the findings of the Interim Report to open investigation of Karunanidhi, an unabashed concession to All
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India Anna Dravida Munnetra Kazhagam leader Jayalalitha's political interests. The conclusions of the discredited Interim Report are used with Justice Jain's passing observation that Karunanidhi's interrogation would have been "quite relevant" on "many matters" to justify the reopening of investigation. Interestingly, on the 21 other persons the Jain Report recommends further investigation of, the ATR points out that the SIT had pursued these cases but not prosecuted them for want of evidence. "If the evidence now pointed out by the Commission," the ATR asserts quite correctly, "was considered enough to arraign the 21 persons identified by the Commission as accused, the Designated Court in the natural course and in the exercise of its statutory powers would have invoked Section 319(1) of the Criminal Procedure Code and arraigned such persons as accused." V. GANESAN Subramanian Swamy. The ATR does not commit the MDMA to find further evidence, except in the cases of Kumaran Padmanabhan and former DMK leader Subbulakshmi Jagadeesan. Interestingly, the reason Subbulakshmi Jagadeesan was not charged by the SIT was that none of the six people she harboured were proclaimed offenders in the Rajiv Gandhi assassination case at the time she gave them shelter. Given that, she was found by the SIT not to have known of her guests' complicity in the assassination, she had committed no crime related to the assassination. Those whom she harboured included proclaimed offenders in the case of the murder of Eelam Revolutionary People's Liberation Front leader K. Padmanabha in Chennai, separately entrusted to the Tamil Nadu Police for investigation. In her case, the MDMA probe will merely cover the terrain already traversed in a criminal investigation, while the agency has been given the carte blanche for a political witchhunt against Karunanidhi. NONE of this will surprise observers of the Jain Commission's interminable progress. The raison d'etre of the setting up of the Commission was political; Narasimha Rao set it up in the face of sober counsel in order to placate Sonia Gandhi. Through the first phase of its existence, the Jain Commission of Inquiry served as an instrument of vengeance for 10 Janpath, using the assassination as a pretext for assaults on Rajiv Gandhi's political rivals, notably Chandra Shekhar and V.P. Singh. That process reached its culmination when Congress(I) president Sitaram Kesri was pressured into
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bringing down the Government of Prime Minister I.K. Gujral after the Interim Report made unfounded allegations against Karunanidhi. The Congress(I), which ought to have learnt from the disastrous consequences of that decision, has now chosen to reject the ATR, but not the Jain Commission Report itself. It has discovered, to its discomfiture, that opportunism is a game two can play. The BJP-led Government is now using Justice Jain's convenient findings to assault its own political rivals and placate its coalition partners. The real victims in the process are those who struggled against all odds to solve the Rajiv Gandhi case and pulled off what has without dispute been India's most spectacular criminal investigation and prosecution. Although the Jain Report and the ATR will not automatically lead to the subversion of the convictions secured in the Designated Court at Poonamallee near Chennai, it would be premature to assume that they will not have any impact on the appeals pending before the Supreme Court. "Judges are human beings," one anguished senior official of the SIT told Frontline. "When the Union Government, a Commission of Inquiry, and sections of media join in casting aspersions on the findings of the SIT and suggest there was something we hushed up, it will certainly introduce just that small element of doubt in the minds of the Judges, which will be in the interests of the accused." Members of intelligence agencies, who have been castigated for failure to decode intercepts pertaining to the assassination, are equally dismayed. "Any terrorist offence is the result of an intelligence failure," one official said, "but they do take place. Has any effort been made to understand the volume of work we have, and the resources we have to deal with it?" There are no answers for these questions. Tragically, the sole beneficiaries of the Jain Commission of Inquiry, and the politicians who have sponsored it may be the 26 persons whose appeals are now pending in the Supreme Court.

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