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Why are politicians scared of taking General VK Singh to court?

I'd driven up to the temple town of Katra in 1998 with a senior Jammu and Kashmir politician, who despite his occasional clowning, is no-one's fool. He stared out of the window of the bullet-proof vehicle, watching the packs of monkeys lined up along the road, waiting for tourists to fling fruit or biscuits to them. "You Indians have turned even the bloody monkeys into beggars," he said. Then, he was silent. So was I: there wasn't a lot to say, really.

For the first time in India's history, a former chief of army staff will be summoned to appear before legislators to answer for covert actions. Earlier this week, the Jammu and Kashmir assembly voted to summon General VK Singh to explain his claim that the army "transfers money to all the ministers in Jammu and Kashmir". He went on: "may be not all the ministers but certain ministers and people who are given a certain sum to get a particular thing done. That job involves bringing stability to a particular area". General Singh later said he wasn't revealing any secrets--but his revelations are certain to fuel questioning of Indian democracy.

"I firmly believe that nobody has caused this kind of damage to the mainstream political institutions in Jammu and Kashmir since 1947," Chief Minister Omar Abdullah said on Monday, during the Assembly debate.

 Why are politicians scared of taking General VK Singh to court?

General (Retd) VK Singh. AFP

He's guilty of hyperbole: leaving aside the likelihood that most Kashmiris will be underwhelmed by news of their elected representatives deep romantic attachments to cash, there's plenty of contenders for that particular top slot.

Yet, he's got a point: corruption and bribery have corrupted politics in Kashmir across the ideological spectrum, turning leaders into entrepreneurs of conflict, not agents of change.

The thing is, does anyone want to change that?

Let's say, for the sake of argument, that every last allegation by and against VK Singh is true. Perhaps former chief of army staff General VK Singh, as Omar Abdullah alleges, bugged the chief minister's home and phone lines. Perhaps, as an internal army enquiry is reported to have found, General Singh did try to bring down governments. There's a course of action India's laws prescribe to deal with these allegations, all of which add up to treason. The state police or Central government ought file a First Information Report with police, conduct an investigation, and let a judge come to conclusions based on evidence.

The Jammu and Kashmir Assembly won't do that, because it can't. Legislative contempt proceedings aren't a substitute for a criminal justice. In 1987, the Tamil magazine Ananda Vikatan published a cartoon of man who identified two leaders on a dias thus: "the person who looks like a pick-pocket is the MLA and the person who looks like a masked dacoit is the Minister". Furious legislators, appalled at what they saw as an unjustified slur, invoked their privileges and sentenced the magazine's editor, to three months in prison. Though the chief minister's intervention led to the sentence being drastically shortened, the Vikatan case ended up going all the way to the Supreme Court.

India's Parliament, and the states' legislative assemblies, have never actually said what their privileges are, exactly. The idea that legislatures enjoyed powers of contempt derived from early English constitutional history, when the monarch presided over parliament. When the constitution was written, lawyer Anupam Gupta explained in an excellent 2003 article, it chose not to codify those privileges, on the grounds that this would just take too many pages.

The ambiguous wording has suited legislators: all sorts of defiance has been punished by assemblies, from socialist activists who picketed the Uttar Pradesh assembly in 1964, to the editor of The Hindu in 2003.

In 1994, the Supreme Court told legislators that the Constitution didn't actually give them the powers of the monarch. Justices M Srinivasan, D Raju and A Lakshmanan, hearing the Vikatan case, said legislatures "cannot try anyone or any case directly, as a Court of justice can". Instead, the legislature can only "proceed quasi judicially in cases of contempts of its authority and take up motions concerning its 'privileges' and 'immunities' because, in doing so, it only seeks removal of obstructions to the performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary Courts in appropriate proceedings. For example, the jurisdiction to try a criminal offence, such as murder committed even within a House vests in ordinary criminal courts".

The judges debunked the myth that "a House of a State Legislature has some judicial or quasi judicial powers also, quite apart from its recognised powers of punishment for its contempts or the power of investigations it may carry out by the appointment of its own committees".

Put simply, the legislative proceedings won't give us truth or closure. They might give some politicians the pleasure of humiliating a man who has humiliated them--but little else. It will have consequences.

So why are politicians so scared to take VK Singh to court? The answer is simple: no-one actually wants the truth told. It ought surprise no-one that the army or intelligence services bribe while in combat theatres: cash is, after all, the primary tool-in-trade of the spy. Elsewhere in the world, there are laws to govern these activities. The United Kingdom's anti-Bribery Act makes it legal to bribe for "the proper exercise of any function of an intelligence service, or the proper exercise of any function of the armed forces when engaged on active service". Israel and the United States have similar exemptions for intelligence-gathering.

In India, successive governments have resisted creating a legal framework for intelligence reform--scared that spymasters might then start resisting their own misuse of the services for political ends. That's created a bizarre situation where there's no enabling legislation for a policeman to pay an informant legally--let alone authorise the use of covert means.

The second reason is this: everyone, across the spectrum, has their hand in the till. For decades now, Indian politics in disturbed areas has worked on buying loyalty--much like other countries in insurgency-hit areas or, for that matter, Indian politics in perfectly peaceful states.

I'm willing to bet Kashmir's legislators won't call for testimony on why sixteen businessmen held in 2002 for laundering terror-tainted hawala money, some of them golfing buddies of then-chief minister and now Union Minister Farooq Abdullah, were let off without trial. They won't investigate how hawala agent and Research and Analysis Wing asset Nasir Shafi Mir, linked to everyone from Hurriyat Conference chief Mirwaiz Umar Farooq to top establishment politicians, was allowed to flee India. I'm sure there'll be no tax returns called for from either separatist or unionist politicians on the properties they own in New Delhi and Srinagar, with no evident means of income.

The real tragedy in this sordid saga isn't that we had a government which authorised and then leaked a dubious investigation against a former army chief's conduct of intelligence. It isn't about an ego-driven former army chief without the discretion not to reveal service secrets.

"Filthy as the Dal Lake", former United States ambassador David Mulford wrote in a leaked diplomatic cable back in 2008. "Money from Pakistani and Indian intelligence agencies and from Saudi and other foreign extremists has further distorted Kashmiri politics, incentivized leaders to perpetuate the conflict, and perverted state and central government institutions. While this river of dirty money has led to a boom in Kashmiri household income and real estate prices, it also calls into question whether the Kashmiri elite truly want a settlement to their problems".

That's the real tragedy politicians in Kashmir and New Delhi ought be debating. They won't.

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Updated Date: Oct 10, 2013 19:00:38 IST