40 Yrs On, Samba Spy Scandal Back In Court: All You Need to Know

The sordid case, in which ex-officers take on the Indian army, has dragged on for 40 years.

Representational image.

(Photo: The Quint)

The Delhi High Court on 12 April directed the government and the Indian Army to respond to the petition filed by Ashok Kumar Rana (former Captain, 7 Jat Regiment) and Ranbir Singh Rathaur (former Captain, 11 Garhwal Rifles) to declassify all documents pertaining to the Samba spy case. The next date of hearing is set for 3 September.

The Samba spy case has been dubbed ‘the Indian Army’s darkest chapter’ – over 50 jawans who served in the 169 Infantry Brigade at Samba, a district in Jammu and Kashmir, were arrested for espionage against India based on charges by the Directorate of Military Intelligence (MI) between 24 August 1978, and 23 January 1979.

The petition was filed this month by Captains Rathaur and Rana who were sentenced to 14 years of rigorous imprisonment and dismissed from the Army by the Court Martial. They were released in 1989. However, they haven’t been cleared of the charges and state that they had “tried every legal recourse available to them in order to prove their innocence” and restore their dignity and honour.

Here’s everything you need to know about the Samba spy case.

Why Were Over 50 Army Jawans Arrested?

Here’s how it began: In June 1975, Gunner Swaran Dass was arrested by his artillery unit in Madhya Pradesh following reports of the Intelligence Bureau (IB) accusing him of spying for Pakistan. He was handed over to the Military Intelligence (MI) in 1976 where he stayed in custody till 1978.

He confessed to his crimes.

In an interview with Indian Express in 2016, Dass alleged that when he crossed the border into Pakistan, he was tortured for having an Indian Army identification card, till he agreed to supply information to Pakistan’s Field Intelligence Unit at Sialkot. He said he recruited fellow officers from his brigade to join the task. Gunner Aya Singh was one of them, who was also arrested by the IB in July 1975 and handed over to the MI.

Both Dass and Singh were sentenced to seven years of rigorous imprisonment and dismissed from the army. They had implicated several others for spying, including Captain Ghalwat and Captain Nagial along with 12 other jawans, under interrogation.

Dass was reinstated in March 1979 while Singh was reinstated in March 1978, with decreased sentence, soon after he implicated two major names, Captain Ranbir Singh Rathaur and Captain AK Rana (the petitioners in the current case).

Accordingly, in 1978, both the captains were arrested and interrogated. They both also implicated several other army personnel, which they later claimed had been false allegations made under torture.

Captain Rathaur and Captain Rana were sentenced to rigorous imprisonment for 14 years each and were dismissed from the army by the Court Martial.

Havaldar Ram Swaroop, who worked under Captain Rathaur, was also picked up for interrogation by the MI in 1978. The Army claims he died of a drug overdose, three days after being taken into custody. However, Indian Express reports that his post-mortem revealed he died of multiple injuries indicative of torture.

The services of several officers were terminated without trial under Section 18 of Army Act, 1950 read with Article 310 of the Indian Constitution.

Who Are the Key Players?

• Swaran Dass: Gunner in the Artillery Regiment of the Army who confessed to being a Pakistani spy.
• Aya Singh: Gunner in the Artillery Regiment of the Army, supposedly recruited by Dass to work for Pakistan Intelligence. He was shot dead near the border in 1986.
• Ranbir Singh Rathaur: Former Captain of the 11 Garhwal Rifles, accused by Singh in 1978. He wrote a memoir, The Price of Loyalty detailing his side of the case.
• Ashok Kumar Rana: Former Captain of the 7 Jat Regiment, accused by Singh in 1978.
• Ram Swaroop: Havaldar working under Captain Rathaur, who died during interrogation by the MI.
• NR Ajwani: Major and officer in the Judge Advocate General's branch, who is also filing petitions in Court to clear his name.
• VK Kaul: Intelligence Bureau deputy director and head of the intelligence team investigating the case.

High Court-Supreme Court Tussle

In a hearing in 2000, the Delhi High Court described the Samba spy case as “a gross miscarriage of justice,” exonerating both the Captains, Rathaur and Rana, as well as setting aside the termination of service of seven others.

Some of the reasons specified in the judgment were as follows:

• “Respondents have not placed any material justifying the action.”
• “Respondents think they are law unto themselves.”
• “Respondents have chosen not to produce the entire record.”
• “On the consideration of all the facts and circumstances we are of the view that there is no other conclusion possible except to say that the orders are merely camouflage and have been passed for extraneous reasons under the innocuous form of orders of termination.”

However, in 2006, the Supreme Court remitted the case to the High Court for a fresh hearing. Some of the reasons stated were as follows:

• “It was pointed out that the High Court lost sight of the factual background and on mere surmises and conjectures allowed the writ petitions.”
• “The persons whom the High Court felt were responsible for alleged manipulation or persons behind false implication were not impleaded as parties.”
• “Newspaper reports are not to be considered as evidence.”
• “The authenticity of the newspaper reports was not established by the writ-petitioners.”

Concocted Evidence?

In his memoir, The Price of Loyalty (1996), Captain Rathaur writes, “It is on the testimony of these two sordid characters (Das and Singh) that many lives were blighted by the MI. Confessions by their victims were extracted by torture which claimed the life of Havaldar Ram Swaroop,” Frontline reports.

“I was forced to write 11 or 12 statements, implicating many others besides Captain Rana," he added. He was also asked to dictate a statement to Rana in prison to implicate further officers.

“It was all a concoction, manufactured by the MI Directorate.”

Captain Rathaur in his memoir, The Price of Loyalty

Lt Col Ved Prakash was a General Staff Officer in the Intelligence Directorate at Army Headquarters and a member of the General Court Martial. He writes in his book The Samba Spying Scandal (1996), that when questioned about the ‘missing documents,’ the prosecution refused to answer, 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 enemy. The argument that the disclosure of some specifics, viz., numbers and dates of these documents, will jeopardize the national interest was rather stretching the point.”

Lt Col Ved Prakash in his book, The Samba Spying Scandal

In a December 1994 article, India Today reported that the IB’s top officials of that time called the charges “baseless.”

“It was a mixture of lies and fiction incapable of belief without the fullest corroboration, and there wasn't any,” says VK Kaul, then IB deputy director and head of an intelligence team investigating the case. Then-IB chief, TV Rajeswar, stated that “The case would have been thrown out in a civil court. It needs to be reopened and examined without prejudice.”

Petitioners’ Long Fight

Captain Rana challenged the Court Martial’s sentencing for the first time in October 1980 with a petition. However, it was dismissed by the Delhi High Court. Subsequent petitions filed by both Rana and Rathaur were also dismissed, and in 1987, the Supreme Court passed the order, saying, “We have gone through the Review Petitions and connected papers. We find no merit in the Review Petitions which are accordingly dismissed."

However, a subsequent series of petitions ended up successfully raising the question of whether Section 18 of the Army Act, read with Article 310 of the Constitution, could be challenged.

In a 1994 judgment of the Delhi High Court for the case – concerning Major NR Ajwani, another accused versus the Union of India – it was held that in a judicial review, “The Court would lift the veil in all cases where it appears that the power is used for collateral purposes” to “determine the true character of the order.”

Thus, an order under Section 18 of the Army Act could be reviewed if it violated natural justice or the fundamental rights guaranteed under Article 14.

After his release in May 1989, Rathaur filed a petition in 1995 again. It demanded the annulment of the proceedings of the General Court Martial, as they are “malafide, irrational, unjust and illegal and there has been a failure of justice.” Though this petition also didn’t come to fruition.

In 2007, the 2000 High Court judgment was overturned and the termination orders of the General Court Martial were again upheld. The Supreme Court reaffirmed the judgment in 2014.

What Is Section 18 of The Army Act?

Section 18 of The Army Act was invoked to terminate the services of the accused officers accused in the case, deeming it unnecessary to hold a trial.

Article 309 of the Indian Constitution makes a provision for the introduction of Acts of appropriate Legislature to regulate the conditions of services of people appointed to public services and other posts that serve the Union or of any State. The Army Act was introduced in 1950 under this Article for all people in the Indian Army and related bodies.

Section 18 of the Army Act states that “every person subject to this Act shall hold office during the pleasure of the President.”

The pleasure of the President can be understood in terms of Article 310 of the Indian Constitution. It states that any person who holds a post in the Defence service or civil service of the Union does so as long as the President pleases.

The services can be terminated by the President under any circumstances as long as they don’t violate the fundamental rights of the person.

Article 311 of the Constitution safeguards the civil servants against such termination by “an authority subordinate to that by which he was appointed.” Also, it refuses the dismissal or reduction in rank unless “after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.” It applies only in cases where the termination or reduction of rank is done as punishment for an offence.

However, since the Armed forces are excluded from the domain of civilian employees, the Article 311 cannot be invoked in the case of Captains Rathaur and Rana in judicial review.

What's New in the Case Now?

In 2019, Captain Rathaur and Rana filed another petition asking to declassify the documents that were earlier held in the interest of national security. The High Court directed the Army and the government to file their response.

This directly challenges the November 1994 Supreme Court’s ruling, as reported by Frontline, that if the accused can prove that the charges against them are made with false intentions, the burden falls on the government to provide proof countering their claim.

“While doing so, the government is not precluded from claiming the privilege in respect of the material which may be in its possession and on the basis of which the order is passed. The government may also choose to show the material only to the court.”

Supreme Court ruling as reported by Frontline

Another attempt was made in 2017, by Major Ajwani and others, to access the documents at least for the petitioners’ viewing. However, the Supreme Court dismissed that petition.