Jain Commission - Scope & Parameters

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Introduction:
Scope and Parameters of Inquiry

3.1 As already noticed, this Commission was set up by the Central Government by a Notification No.S.O. 545 (E) dated 23rd August, 1991. The Notification said that the Commission shall make an inquiry in respect of the following matters:

(a) the sequence of events leading to and all the facts and circumstances relating to, the assassination of Shri Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission of Inquiry headed by Shri Justice J.S. Verma);

( b) whether any 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.

3.2 Shri Rajiv Gandhi was assassinated on 21.5.1991 around 10.20 P.M. and the investigation of the bomb blast commenced with the registration of the case as Crime No.329/91 under Sections 302, 307 and 326 I.P.C. and Sections 3 and 5 of the Explosive Substances Act, at Sriperumbudur Police Station at 0105 hrs on 22.5.1991. The investigation was taken over by the Crime Branch, CID, Madras immediately on registration of the case under the Notification of the Government of Tamil Nadu. Thereafter, consent was accorded to the CBI to take up the investigation under Section 6 of the Delhi Special Police Establishment Act.

3.3 The assassination of the former Prime Minister stunned and shocked the nation as a whole. A demand was raised for setting up of another Commission of Inquiry which may encompass not only the whole range of conspiracy behind the assassination and the killers but also the brains and conspirators behind the assassination and also the sequence of events which led to the assassination and all the facts and circumstances relating to the assassination. In order to satisfy the feelings of the nation, this Commission was set up to go into the whole gamut of the matter- including the larger conspiracy.

3.4 The S.I.T. was required to submit its chargesheet within a year i.e. by 20.5.1992 and after investigation, a chargesheet was presented against the 41 accused persons out of whom 12 were dead and 3 absconding.

3.5 The first public hearing was held by this Commission on 27.8.1992 to consider the scope and parameters of the terms of reference. At the hearing, on behalf of the Central Government, the then Attorney General of India Shri G.Ramaswamy raised an objection that the Commission had absolutely no jurisdiction to conduct any inquiry into the areas covered by the chargesheet submitted by the S. I .T. before the Designated Court.

On this question, elaborate arguments were heard. Submissions were made by Shri B Datta who subsequently succeeded the then Attorney General Shri G. Ramaswamy, Shri G Subramanian, Advocate General for the State of Tamil Nadu, Shri R.N. Mittal, Counsel for the AICC ( I ), Shri R. Muthukrishnan, Counsel for the TNCC( I ), Shri T.G. Venkataraman, Counsel for the DMK Party, Shri K.V. Viswnathan, Counsel for the AIADMK and Shri K.L. Arora, Counsel for the Commission. Shri R. Veeramani, general secretary, D.K. Party sent his written submissions.

"9.1 Inquiry by the Commission carries with it greater confidence in the public mind. But 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 filing of the chargesheet there may be cases when witnesses may be won over, they may be bribed, they may be terrorised, they may be eliminated, or made to disappear affecting the outcome of the trial. In such a situation, the Commission may act on the basis of the statement recorded by the police if the statement of the investigator is found trustworthy.

9.2 Thus, looking to the public importance and sensitive character of the inquiry, a thorough probe is needed leaving no areas including the areas covered by the chargesheet which are related to the terms of reference. The Commission has to satisfy itself after deeper probe as to who are the persons or agencies responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy. Investigations by the SIT in the assassination case may be thorough, fair and impartial and the findings of the Commission may not vary with that of the investigation, but that does not mean that the Commission should not make any inquiry.

9.3 In view of what I have considered above, I am clearly and firmly of the opinion that despite submission of chargesheet under Section 173 of Cr.P.C and despite provisions of the TADA Act, this Commission is competent enough and has jurisdiction to make an inquiry into the matters referred to it, rather it is obligatory to do so. The manner of making inquiry rests with the Commission. Even expediency or propriety does not warrant that such an inquiry need not be conducted. On the contrary, I feel that this Commission, having regard to its terms of reference, is duty-bound to make an inquiry under the Notification. As already stated, the mode and extent of inquiry would depend on the exigency of the situation. I, therefore, overrule the contentions of Shri B. Datta in this regard".

3.6 From the perusal of the terms of reference of this Commission, it would appear that the task assigned to the Commission of Inquiry headed by Justice J.S. Verma was excluded from the purview of this Commission. This exclusion was within the view of the Central Government. What has not been excluded and what is legitimately covered under the terms of reference is all required to be inquired into. In my aforesaid order, I tried to analyse the terms of reference of this Commission and of the Commission of Inquiry headed by Hon 'ble Mr Justice J.S. Verma. Justice J.S. Verma in (chapter 'V ' under the heading "Scope of the Inquiry and the Real Questions" considered as under:

5.01 To determine the true scope of the inquiry by this Commission, the terms of reference of Justice M.C. Jain Commission constituted, by a notification dated August 23, 1991 have also to be kept in view. The terms of the two Commissions are mutually exclusive. In addition, a Special Investigation Team of the Central Bureau of Investigation headed by D.R. Karthikeyan was set up to investigate into the crime. Matters which are directly within the purview of the Jain Commission and those pertaining to the investigation of the crime are not within the purview of this Commission. Even in the overlapping grey areas, care has to be taken to preserve the distinction. This is the only reasonable construction to make of the ambit of the terms of reference of this Commission and avoid any overlapping or conflict with areas expressly covered by the terms of reference of Justice M.C. Jain Commission and investigation of the crime by the SIT.

5.02 The terms of reference in paras 2 & 3 of Notification dated 27.5.1991 are as under:

(a) whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals responsible for his security;

(b) the deficiencies, if any, in the security system and arrangements as prescribed or operated in practice which might have contributed to the assassination

3 The Commission may also recommend the corrective remedies and measures that need to be taken for the future with respect to the matters specified in clause (b) of paragraph 2 above.

5.03 The main matter for inquiry by this Commission is whether the assassination of Rajiv Gandhi could have been averted? To answer the main question, the Commission has to decide whether there were lapses or dereliction of duty in this regard on the part of any of the individuals responsible for his security. Which was the proximate cause for the mishap? Another question to be decided is: Whether there were any deficiencies in the security system and arrangements as prescribed or operated in practice which might have facilitated the assassination as contributory factors?"

11.3 On consideration of the terms of reference of the two Commissions, in my opinion, the thrust in the first Commission of Justice J S Verma is on security aspect and the thrust in the terms of reference of this Commission is on the conspiracy aspect and also on the consideration of those factors and matters which led to the assassination and which are related to the assassination. It was observed in the report of Justice Verma Commission that the main matter for inquiry is whether the assassination could have been averted and to answer the main question the Commission has to decide whether there were lapses or dereliction of duty in this regard on the part of any of the individual responsible for his security which was the proximate cause for the mishap. Incidentally dealing with various matters does not mean that they relate to the main terms of reference. The distinction in the terms of reference of the two Commissions has to be maintained although some matters may be incidentally dealt with.

11.4 So far as the terms of reference of this Commission are concerned, it would appear that there are two parts of the first term of reference the first part relates to 'the sequence of events leading to the assassination' and the second part relates to all the facts and circumstances relating to the assassination'. The second term of reference is to find out 'person or persons or agencies responsible for conceiving, preparing and planning the assassination and whether there was any conspiracy'.

3.8 A question arose as to from what date the sequence of events are to be inquired into. In view of the material which was placed before the Commission before 2.7.199l when the Order was passed, the Commission noted that there was growth of militancy in Tamil Nadu beginning from 1981 after the outbreak of ethnic riots in Sri Lanka when shops, estates, farms, factories, hotels and residences of Sri Lankan Tamils were attacked during May to August, 1981 and the Jaffna Library which was the proud possession of Sri Lankan Tamils was burnt down to ashes on 31.6.1981.

3.9 An application was submitted by Shri K Subramaniam, learned Advocate General for the State of Tamil Nadu to review the cut-off date for inquiring into the sequence of events. It was submitted that events which took place prior to the signing of the Indo-Sri Lanka Accord, that is 29.7.1987, have no bearing on the assassination of Shri Rajiv Gandhi and events prior to the signing of the Accord are not relevant. The commission heard lengthy arguments on this review application and examined the question in sufficient details in its Order dated 17.11.1993 (Annexure 3) and the Commission held that there are no valid grounds to revise the cut-off date from the year 1981 to 29.7.1987.

Growth of militancy was taken to be the root cause which led to the assassination of Shri Rajiv Gandhi and the commission examined the question as to what constitutes the sequence of events. If the militancy and the gun/bomb culture would not have spread in the State of Tamil Nadu, no conspiracy could have been materialised the way it has. In that order, it was noted that cause of a cause is equally important for determining the sequence of events which led to the assassination. The growth of militancy was the root cause and the real cause which ultimately culminated into hatching of a conspiracy and assassination of Shri Rajiv Gandhi.

3.10 One Mr Mushtaq Ahmed, Advocate, Supreme Court, filed a writ petition in the High Court of Delhi on 6.4.1994 challenging not only the Orders dated 2.7.1993 and 17.11.1993 (Annexures 2 & 3) passed by the Commission but also sought quashing of the Notification dated 23.8.1991 and all the various Orders passed by the Commission and he also sought interim orders of injunction restraining this Commission from proceeding to conduct the inquiry further until a final decision on the writ petition (Civil Writ Petition No.1544/94 - Annexure 4) .

3.11 A Civil Miscellaneous Application No.2827/94 was filed. When the above Civil Writ Petition came up before the Court, the Court directed the Union of India to spell out its stand so far as the contentions raised by the petitioner are concerned. On 2.5.1994, after knowing the stand of the Union of India, the Court passed interim exparte order (Annexure 5), the operative portion whereof is as under:

3 .12 After the above order was passed in the preliminary hearing, notice dated 9.5.1994 was issued to the Commission in the name of the Chairman requiring the Commission to file an affidavit in opposition, on or before 5.7.1994 and stating therein that the petition is fixed for hearing before the Court on 30.7.1994 (furjee) and will be taken up by the Court on that date or any subsequent date (Notice Annexure 6).

3.13 An affidavit in opposition was filed by the Commission on 8.7.1994 (Affidavit - Annexure 7). Rejoinder affidavit was filed by the petitioner Mr Mushtaq Ahmed to the affidavit in opposition (Annexure 8). Reply to the rejoinder affidavit was filed by the Commission on 5.12.1994 (Annexure 9)

3.14 The Civil Miscellaneous Application No.2827/94 was heard by the Court and Order thereon was pronounced on 1.2.1995 (Annexure 10) and in the light of the statement made by the Commission's Counsel Shri K.L. Arora, the Court observed that : "the statement of Shri Arora is surely sufficient assurance and is in conformity with this Court 's Order dated 2.5.1994 and in that view of the matter, 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. As to the question whether the inquiry could be from 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 " .

3.15 The Counsel for the Central Government and the State of Tamil Nadu expressed that "they have been and will fully cooperate with the Commission. There are no opposing parties before the Commission. All are interested in a single endeavour to ascertain the truth. All are agreed - including the Commission - that nothing should be done in the Commission which will jeopardise or prejudicially affect the case in the Designated Court at Chinglepet. It will be for the Commission to combine the delicate task of completing the inquiry, and in the light of its own intent and desire not to jeopardize or prejudicially affect the trial in the Designated Court" .

3.16 The Writ Petition finally came up for hearing and was disposed of by the Delhi High Court on 16.11.1995 (Annexure 11) . With regard to the inquiry into the role of the LTTE, the Court observed: "We therefore do not find the need to restrict the power of the Commission to matters other than the role of the LTTE as contended by the Union Government . In fact even in the earlier orders of this Court, we never stated that the inquiry against the role of the LTTE was prohibited''. The Commission's Counsel Shri G.L. Sanghi stated before the Court: 'Firstly, that whenever any matter comes up before the Commission in the evidence or in the arguments concerning the guilt of the 41 accused persons in the charqesheet before the Designated Court at Madras, the Commission will conduct the inquiry in camera. Secondly, that as far as possible the questions that may be put to the witnesses before the Commission will not be allowed to cover - the aspects coming within the purview of the chargesheet against the 41 accused persons before the Designated Court. We are recording these two submissions based upon what the Commission's counsel stated before us."

3.17 In the light of the statement of the Commission's Counsel, the Court observed: "We are of the view that the interests of the criminal trial before the Designated Court against 41 accused persons are sufficiently safeguarded. We therefore do not think it necessary to accede to the request of the Union Government that the conspiracy part of LTTE or any other agency/organisation should be excluded from the purview of the Commission. For all the reasons set out above, we do not think it any longer necessary to restrict the scope of the inquiry from 29.7.1987 to 21.5.1998. It will therefore be open to the Commission to go into the events even from l981".

3.18 Thus, it would appear that the Commission's view with regard to its jurisdiction having regard to the terms of reference was upheld by the Hon'ble Delhi High Court and the only restraint was that the criminal trial before the Designated Court, Chingelpet, against the 41 accused persons may not in any way be prejudiced and the interests of the criminal trial should be safeguarded.

3.19 During the course of the proceedings, an application No,48/95-JCI dated 14.10.1995 was filed by Shri R.N. Mittal, Counsel for the AICC(I) and it was prayed that the CBI/SIT may be directed to file the photo-copy of the Case Diary, Crime File and other investigation records. Elaborate arguments were heard on this application and the Commission passed an Order on 28.12.1995 (Annexure 12) whereby it directed the Director, CBI to produce the photocopy of the first three parts of the Crime File No.RC/9/S/91-SCB, Madras, for perusal by the Commission even concealing the identity and addresses of the coded witnesses, for the present. Requisitioning of the photocopy of the Case Diary in the possession of the CBI/SIT was deferred for the time being.

3.20 It appears that the Central Government was aggrieved by the final order of the Delhi High Court and the aforesaid order of the Commission directing production of the first three parts of the Crime File. Two SLPs were filed by the Union of India, one against the final order of the Delhi High Court dated 16.11.1995 SLP No.13 of 1996) and the other against the said order of the Commission dated 28.12.1995 (SLP No.733 of 1996). SLP No .13/96 was heard and decided by the Hon'ble Supreme Court of India on 15.1.i996 (Annexure 13).

It was dismissed as withdrawn in view of the statement made by the Solicitor General of India that he may be permitted to withdraw the petition as Government would take such action as it deems necessary. The second SLP No.773/96 was heard by a different Bench and decided on 25.1.1996 (Annexure 14) whereby the SLP was dismissed and the learned Judges observed that : "We have read the terms of reference to the 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.

3.21 Thus the long standing controversy since the inception was finally resolved and settled at rest by the Orders of the Hon'ble Supreme Court of India. In my Order dated 2.7.1993, I had expressed that the mode and extent of inquiry would depend on the exigencies of the situation but I have said that having regard to the terms of reference the Commission has jurisdiction to inquire into all aspects of the assassination, including responsibility of person or persons or agencies in the assassination and whether there was any conspiracy for the same and that the Commission can inquire into all the sequence of events leading to the assassination of Shri Rajiv Gandhi.

The Commission does not feel any necessity to inquire into the charges against the 41 accused persons but it has inquired into the events which have led to the assassination of Shri Rajiv Gandhi. Inquiry into such events as part of the sequence of events leading to assassination is different from making an inquiry into charges framed against the accused persons facing the trial.

Introduction: Scope and Parameters of Inquiry

Introduction:
Scope and Parameters of Inquiry