We witnessed the unnerving casualness of the top court.
“I am a small fry... I blame my destiny”: Lieutenant Colonel Shrikant Prasad Purohit, speaking to the press on August 22, 2017, after the Supreme Court ordered his release on bail in the 2008 Malegaon blasts case.
“We’ve done it and we’ll do it again”: Purohit and his co-accused, talking to other jail mates, at the time of their arrest, and their first entry into Arthur Road Central Prison in November 2008.
Both statements are true. The investigations initiated by Hemant Karkare, ATS chief in 2008, quite convincingly indicated that Purohit’s team “did it” – it executed a terror plan to engineer blasts in Malegaon and other Muslim-dominated areas. At the same time, it also seems true that he was not the prime architect of the larger terrorist conspiracy; he was relatively “a small fry”.
High-level involvement in terror plans
As pointed out earlier in our column, the conspiracy behind the Malegaon blasts and other similar Hindutva-inspired terror cases quite apparently extends high up, not only inside the Rashtriya Swayamsevak Sangh (RSS), but also within the state apparatus. Purohit was conducting the operations at the behest of higher-ups in the state apparatus and political setup of the country. He was thus, in reality, a somewhat minor foot soldier in a larger game plan masterminded by others.
The first judicial recognition of this fact came with the Supreme Court bail order of August 21, 2017. Among the reasons for granting him bail is the court’s “considered opinion” that Purohit “has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well” (para 24 of the bail order). The Supreme Court thus accepted his contention that “it was a ‘covert operation’ of Military Intelligence” (para 14 of the bail order).
This is not the first time that Purohit has advanced the argument that he should be exonerated because his higher-ups in the Army were well-aware of the blasts plan. However, the judiciary had, until now, refused to accept either the truth or the logic of this claim.
The Bombay High Court had, less than four months earlier on April 25, 2017, specifically concluded that his acts “do not, prima facie, support the contention of the Appellant [Purohit] that he was acting under the ‘Covert Military Operation’ and was also working in discharge of his duties. If it was so, he would have immediately contacted his superior officers in the Army or, at-least, appraised the Police, who were investigating the case, about his role. At-least, he would not have any apprehension of being arrested in the case.” (para 158 of the order of the Bombay High Court rejecting Purohit’s bail application).
Implications of SC findings
This logic of the high court and lower courts now, however, stands discarded after the setting aside of the entire April 25 judgment by the highest court of the land. The implications of this “considered opinion” of the Supreme Court are, to say the least, nightmarish. The apex court has — by setting aside the Bombay High Court judgment and agreeing prima facie with the Purohit version of “facts” that rope in his superiors — now become the first court in the country to incriminate the higher echelons of the military in a terrorist blasts conspiracy.
If Purohit is to be believed — that he was assigned as a mole and kept his seniors in the know about Abhinav Bharat’s terror activities — his bosses become equally culpable in the blasts for not passing on information in their possession to the investigation agencies. Karkare’s reasoning for keeping them out of the charge sheet was that he stood by the version that Purohit was acting on his own without the knowledge of his superiors.
This was earlier accepted by the judiciary. But now, with the Supreme Court holding otherwise, the door has been opened for seeing very senior military officers in a different light and even for implicating them in terror crime.
Hindutva communalists in high military ranks
The nightmare of Hindutva communalists in the high military ranks has often been flagged by those who have worked at those levels. Former Indian Naval Chief, Admiral Vishnu Bhagwat has even gone on record to say that he recalls briefings in the chiefs of staff committee, which were “communal and clearly biased against Muslims”. He has observed, “The RSS has always had an agenda right from 1947-48 to infiltrate the armed forces as well as the intelligence services and the bureaucracy.”
The post-bail scenes too have been extremely disquieting. The army establishment went into overdrive to organise a grand welcome for the terror accused. An advance team of officers visited the prison a day before Purohit’s release. He moved out of jail regally in an air-conditioned car with a six vehicle escort convoy of truckloads of army men. The pomp and pageantry on display could be explained, not by the excuse given of a “perceived security threat”, but more as a public assertion of the army brass as to where their sympathies lie.
Such assertions of celebration and support were also to be seen on several army and security websites and chat groups. The Military Intelligence (MI) community, in particular, went into self-congratulatory mode, with social media resounding with messages calling him “the pride of intelligencers” being circulated among MI and army personnel.
Few found it repugnant that a professedly professional army should freely fete a terrorist blast accused. It would be difficult to deny that this had to do with the religion of the accused and the religion of the targeted victims.
Charge sheet softened, Karkare slandered
Simultaneously, there has been a concerted attack on the hitherto unquestioned integrity of Hemant Karkare, the police officer who was killed in the 26/11 Mumbai terror attacks. His investigations had cracked the terror ring of Abhinav Bharat and exposed its links to higher-ups in the RSS and the state apparatus. These findings were diluted by the post-Modi NIA, who had even evicted Rohini Salian, Special Public Prosecutor, from this case, by telling her to go soft on the terror accused who had been nailed by Karkare.
Subsequent to Salian’s exit, the NIA filed a “soft” supplementary chargesheet that inexplicably dropped charges under the Maharashtra Control of Organised Crime Act (MCOCA), which Salian had fought all the way to the Supreme Court to preserve. This meant that all the confessions recorded under MCOCA could not be used as evidence.
The supplementary charge sheet also deliberately deviated from the original charge sheet, which had the findings of Karkare. This “variance” was the principal reason given by the court for granting bail to Purohit.
More shocking was the Supreme Court’s acceptance of Purohit’s claim that the investigators had planted RDX on the accused’s body. If Karkare were alive today, acceptance of such wild allegations by the top court would potentially have opened him to an indictment under section 194 of the Indian Penal Code for fabricating evidence in a capital offence, which carries a punishment of life imprisonment – a high price to pay for making the mistake of assuming that the Indian State is as secular as the Constitution proclaims it to be.
Bleak prospects of a secular republic
The outlook for secularism in the republic is decidedly bleak. Officers like Karkare with a will to follow the Constitution and rule of law are a rare and vanishing species. As Admiral Bhagwat had observed, the armed forces, intelligence agencies and bureaucracy have, since long, harboured ominous communal biases.
Under UPA, these biases ensured deliberate delays and feet-dragging on cases implicating the Hindutva terror outfits uncovered by Karkare. Under Modi, the bureaucracy and investigating agencies have taken definite steps to ensure the release and acquittal of culprits.
Now we have the unnerving casualness of the highest court, which, while giving credence to the claims of an accused that the highest military intelligence officers were all complicit in a terror conspiracy, does not deem it necessary to even initiate their indictment in this regard.
By Vernon Gonsalves and Arun Ferreira