Tuesday, July 31, 2012



There has been a change of guard in the Union Home Ministry since July 31,2012. Shri Sushil Kumar Shinde, till now in charge of Power, has been shifted as the Home Minister in place of Shri P.Chidambaram, till now the Home Minister, who has been moved to the Finance Ministry to fill the vacancy caused by the election of Shri Pranab Mukherjee as the President of India.

2. While there is no doubt that Shri Chidambaram will do well in the Finance Ministry where he had served before, the suitability of Shri Shinde as the Home Minister has been questioned by many.

3. Shri Chidambaram took over as the Home Minister immediately after the 26/11 terrorist strikes in Mumbai. He took charge of the nation’s internal security at a time when the stewardship of the Ministry under his predecessor, Shri Shivraj Patil, had come in for severe criticism because of his perceived poor handling of terrorism and insurgency.

4. Under the internal security mismanagement of Shri Patil, the Lashkar-e-Toiba (LET), the Pakistani terrorist organisation, spread its network of sleeper cells across North and Western India and carried out a catastrophic act of terrorism in Mumbai in November,2008, which shook the confidence of the Indian public in the capability of our intelligence and security agencies to deal with Pakistan-sponsored terrorism. The Indian Mujahideen (IM) made its appearance and carried out a series of  terrorist strikes in different cities of the country. The threat posed by the Maoist insurgents increased in the tribal areas of central India.

5.Many critics kept pointing out the poor professional management of the MHA by Shri Patil which was contributing to a weakening of our internal security machinery. Despite their criticism, Shri Patil was allowed to continue as the Home Minister without being held accountable for his poor performance .

6. The devastating terrorist strikes of 26/11 in Mumbai made his continuance as the Home Minister untenable and he was replaced by Shri Chidambaram, who had earlier held charge creditably as the Minister of State for Internal Security  during the Prime Ministership of the late Shri Rajiv Gandhi.

7.Shri Chidambaram’s tenure of almost four years as the Home Minister saw a noticeable improvement in the professional management of our internal security apparatus. He rapidly identified the deficiencies that had contributed to the 26/11 strikes and took action to remove them. He decentralised the deployment of the National Security Guards, set up the National Investigation Agency to investigate serious cases of terrorism with a pan-Indian dimension and considerably strengthened co-ordination among the intelligence and security agencies in collecting, analysing and assessing intelligence and taking the required follow-up action.

8. Shri Chidambaram was a man of considerable physical and intellectual vigour and he had his vigour transmitted across the internal security machinery. The morale of the counter-terrorism component of the internal security machinery improved remarkably. For the first time since the days of the late Shri Rajesh Pilot as the Minister of State for Internal Security and Shri L.K.Advani as the Home Minister, the team work in the counter-terrorism apparatus improved and the heads of the intelligence and security agencies had the confidence that if they took their professional and institutional problems to the Home Minister they will be attended to immediately. They looked forward to their daily co-ordination meetings with their Minister-in-charge.

9. Like Shri Advani, Shri Chidambaram realised the importance of close co-operation with the intelligence and security agencies of other countries, particularly the USA and Israel, for improving our counter-terrorism management. The increased co-operation was in the form of greater sharing of intelligence and professional knowledge.

10.Shri Chidambaram had a better understanding of the mindset and machinations of Pakistan’s intelligence community and its Interior Ministry headed by Mr.Rehman Malik and kept up the pressure on Mr.Malik to act against the Pakistan-based conspirators of the 26/11 terrorist strikes, though his pressure did not produce satisfactory results.

11.Shri Chidambaram’s counter-terrorism record was creditable despite his failure to set in motion the proposed National Counter-Terrorism Centre (NCTC) due to the misgivings of some Chief Ministers. Apart from the terrorist attack on an Israeli national outside the Israeli Embassy in New Delhi in February last---- attributed to Iranian agencies and the Hizbollah--- there has been no strike by Pakistan sponsored or inspired elements since September last year.

12.His contribution to the creation of near-normalcy in Jammu & Kashmir and a relaxed relationship between the Central and State Governments has to be recognised.

13. Shri Chidambaram’s contribution to improving our counter-insurgency management, particularly against the Maoists in the tribal belt of central India, was not that satisfactory. His automatic reflex of supporting the security forces after incidents involving large collateral casualties even before properly enquiring into allegations of excesses stood in danger of driving  more people into the hands of the insurgents.

14. The Maoist insurgents are our people from the poor and under-privileged tribal communities and dealing with them called for a more imaginative, sensitive and empathetic approach. They can’t be treated like we treat the jihadi terrorists from Pakistan. Such an approach was missing in his counter-insurgency management. Rightly or wrongly, one had an impression that whereas he led from the front in counter-terrorism, he let himself be led by the security agencies in counter-insurgency. His counter-insurgency record left much to be desired.

15.The Union Home Minister wears two hats. He is responsible for political as well as professional management. Whereas Shri Chidambaram’s professional management was very good despite reservations over the way he handled counter-insurgency, his political management, which depends on his equation with State leaders from different parties and civil society groups, was patchy. One noticed this in the way he mishandled the fasts of Swami Ramdev and Anna Hazare in New Delhi last year. His action in having Anna arrested and detained on flimsy grounds in the Tihar jail  and his inability to get the support of some of the  Chief Ministers for setting up the NCTC did not speak well of his political understanding and reflexes.

16. Shri Chidambaram was a man of ideas. He gave public expression to his ideas in his speeches and statements. Two of his worthwhile ideas related to the setting-up of the NCTC on the pattern of its US counterpart and the creation of a separate Ministry of Internal Security to deal with internal security management. His exercise to create the NCTC came to a screeching halt because of suspicions that he might be planning to use the NCTC as a political weapon against the State Governments headed by opposition parties. His idea of an independent Ministry of Internal Security, on the pattern of the post-9/11 US Homeland Security Department, remained a non-starter reportedly because of lack of enthusiasm for the idea in his own party and among his Cabinet colleagues.

17. There is palpable anxiety as to whether Shri Shinde will be able to adequately step into the shoes of Shri Chidambaram or whether he will turn out to be another Shri Patil letting the good work done by Shri Chidambaram start rusting. As Power Minister, his management was mediocre. He did not give indication of the kind of mental and intellectual rigour that Shri Chidambaram exhibited. This is the first time Shri Shinde is going to be exposed to serious internal security problems. His understanding of the complexity of the tasks is uncertain.

18. Shri Shinde has taken over as the Home Minister in the midst of an exercise in the MHA for the vetting of the important recommendations of the Naresh Chandra Task Force on National Security relating to internal security and strengthening the capability of  the Intelligence Bureau. Those recommendations were made after detailed discussions, among others, with Shri Chidambaram and his senior officers in the MHA. Will Shri Shinde be able to push through the vetting and implementation process with the same understanding and energy as Shri Chidambaram would have done?

19.One has an impression that dictates of political accommodation rather  than dictates of professional management of internal security have influenced his appointment as the Home Minister. There is a question mark over his ability to hold his own during interactions with foreign counterparts and with his Pakistani counterpart.

20. This is not the first time one has a Home Minister not well-versed in the professional  skills of internal security management. One had one in Shri Bhuta Singh who was the Home Minister under Rajiv Gandhi. Rajiv compensated for it by appointing  Shri Chidambaram as his Minister of State for Internal Security with direct access to the PM.

21.One had another in S.B.Chavan who was the Home Minister under Narasimha Rao.  Rao compensated for the deficiencies of Chavan by appointing Shri Rajesh Pilot as the Minister of State for Internal Security with direct access to the PM.

22. Shri Advani and Shri Chidambaram were strong and professionally competent Home Ministers and hence did not need a strong No.2.  Shri Patil was weak in his understanding and professional skills which was not compensated by a strong and energetic No.2. The nation paid dearly for that.

23. The Prime Minister, Dr.Manmohan Singh, should emulate the examples of Rajiv and Rao and appoint a competent and energetic Minister of State For  Internal Security under Shri Shinde and give him right of direct access to the PM. ( 1-8-12)

( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate, Chennai Centre For China Studies. E-Mail: seventyone2@gmail.com . Twitter: @SORBONNE75 )


 I have been in receipt of a pseudonymous E-Mail forwarding what the person, who has sent the mail, claims to be the proceedings in a US court on  a petition for political asylum filed by one Surender Jeet Singh on November 1,2004. The petitioner claimed to have been working in the Khalistan Division of the R&AW and alleged that he fled from India because he was asked to assassinate someone. The person who has forwarded this to me by E-Mail feels that this Surender Jeet Singh is identical with Rabinder Singh. Rabinder Singh, who was working as a CIA agent controlled by the CIA station chief in Kathmandu, fled to the US along with his wife in May,2004, when he was under surveillance by the R&AW.I would be grateful if any of my readers in the US can throw further light on this at my E-Mail address seventyone2@gmail.com ---B.Raman, 31-7-12

393 F.3d 903
Surender Jeet SINGH, Petitioner,
John ASHCROFT, Attorney General, Respondent.
No. 03-71868.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 1, 2004.
Filed December 23, 2004.
Joseph Siguenza, Ashwani Bhakhri, Burlingame, CA, for the petitioner.
Jennifer Levings, Assistant United States Attorney, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aeg-iyq-lfk.
Before B. FLETCHER, NOONAN, and THOMAS, Circuit Judges.
NOONAN, Circuit Judge.
Surender Jeet Singh petitions for review of the decision by the Board of Immigration Appeals (the Board), denying him asylum, withholding of deportation, and relief under the Convention Against Torture (CAT). Holding that the Board's credibility determination cannot be sustained, we remand.

Singh, a native of India, was raised as a Sikh and practices the Sikh religion. According to his testimony, he was recruited by an organ of the government of India known as the Research and Analysis Wing (RAW), situated in the office of the Prime Minister. Its functions, he testified, were like those of the CIA. As an agent of the RAW, he made reports on individuals believed to be Sikhs working to establish the separate Sikh state of Khalistan. He investigated about three persons a year over a period of thirteen years. He submitted postal receipts that he said showed his mailings to the RAW. He quit when ordered to aid in the assassination of a very religious person he had investigated. After hiding with friends for a year, he used his own passport to come to the United States. He testified that he would be killed if returned to India.

Finding him not credible, the Immigration Judge denied Singh's application. Singh appealed. The Board, acting through a single member, affirmed the decision of the immigration judge finding him not credible. The Board stated as to the RAW:

... the respondent has presented no corroborative evidence whatsoever of the existence of this Indian government agency that is similar to the CIA and operates internationally. Despite the secrecy surrounding the operations of the CIA and other security agencies worldwide, it is not difficult to find evidence of their existence. Yet the respondent would have the Immigration Judge or the Board grant asylum based simply on his tale of being an agent for an organization that spies on and assassinates religious minorities, perhaps worldwide.


Singh appeals.



We review the Board's decision. That decision did not address the possible statutory bar to Singh's asylum. It focused on the absence of proof of the existence of the RAW as necessary corroboration of Singh's story. The "tale," the Board said, lacked corroboration. The Board did not acknowledge that the RAW existed.


The RAW does exist. It is under the office of the Prime Minister of India. It does engage in counterterrorism.


It has been suggested that we cannot take notice of the RAW's existence and operations because we are limited in our review to the administrative record upon which the deportation order is based and the Attorney General's findings of fact. 8 U.S.C. § 1252(b)(4); Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc) (citing the predecessor statute 8 U.S.C. § 1105a(a)(4)). But it is nonsense to suppose that we are so cabined and confined that we cannot exercise the ordinary power of any court to take notice of facts that are beyond dispute. We can notice that the government of India exists. We can notice that the office of the Prime Minister of India exists. We can notice that a part of the Prime Minister of India's office is the RAW.


Federal Rule of Evidence 201 permits us to take notice of any "adjudicative" fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." As a matter of course we have taken judicial notice that Japan has a constitution, a legislature that creates statutes, and a court system that gives judicial decisions and operates by means of lawyers. Dulles v. Katamoto, 256 F.2d 545, 547 (9th Cir.1958); cf. Quinn v. Robinson, 783 F.2d 776, 813 (9th Cir.1986) ("We do not ignore the constitutional, legal, and military relationship between England and Northern Ireland. The ties are so well established, see generally 1 Europa Year Book 1984, at 991-96; 14 World Book Encyclopedia 403-06b (1985 ed.), that had evidence of the relationship not been presented to the magistrate, judicial notice would have been appropriate.").


The statutory authorization, already broad, has been interpreted even more extensively in the context of appellate review of an agency. Under the heading "Judicial Notice is Expanded in Administrative Proceedings," the magisterial textbook of Judge Jack B. Weinstein states:


When a court reviews an administrative determination to find if it is adequately supported by the record, the court should use the scope of administrative notice authorized, rather than its own more narrowly subscribed notice. The court should place itself in the same position as the administrative board.


Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 201.02[4] (2d ed.2004) (footnotes omitted).


Every case "involves the use of hundreds or thousands of non-evidence facts." Fed.R.Evid. 201 advisory committee's note (proposed draft 1972) (paraphrasing Kenneth Culp Davis, "A System of Judicial Notice Based on Fairness and Convenience," in Perspectives of Law 69, 72-73 (Roscoe Pound et al., 1964)). Administrative cases and the review of administrative decisions are no exception to this universal truth. An agency or an appeals court could not function if it had to depend on proof in the record of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." Fed.R.Evid. 201(b).


The language of the statute speaking of the administrative record must be interpreted in the context of the Federal Rules of Evidence, the general practice of administrative review,Dulles and the common practice of the courts. The language in Fisher repeats the statutory language and does not enhance its range. Its thrust is to exclude from our consideration the kind of facts contained in the country reports of the State Department unless the reports have been introduced into the record. See Fisher, 79 F.3d at 963 (citing cases and overruling some cases and parts of other cases that took judicial notice of country conditions reports).


The existence and operations of the RAW are readily known by the employment of an accessory tool as familiar in legal research today as Shephard's Citations were half a century ago. A simple Lexis search reveals over 1,500 articles on the RAW from reputable international media sources including the BBC. Its situation in the office of the Prime Minister is a matter of common knowledge. See Ejaz Akran, A Comparison of the Structures and Functions of Intelligence Organizations in Israel and India, 23 Journal of South Asian and Middle Eastern Studies 59, 70 (Spring 2000). As early as 1987, the New York Times,reporting on the Indian Army's unsuccessful incursion into Sri Lanka, ended its report from New Delhi: "Military analysts here say the main failure was that of the Research and Analysis Wing, India's intelligence agency." Steven R. Weisman, Toll in Sri Lanka Shakes India Aides, N.Y. Times, Nov. 1, 1987, Sec. 1 at 4. Even the Encyclopedia Britannica acknowledges the existence of the RAW: "India's most important intelligence agency is a civilian service, the Research and Analysis Wing ("RAW"). The RAW's operations are primarily aimed at the Indian subcontinent, though it also has directed efforts in the United States aimed at influencing that government's foreign policy." 21 Encyclopaedia Britannica787 (15th ed.2003).


A former member of the Cabinet Secretariat and of the National Security Advisory Board of India, Bahukutumbi Raman, has testified at length to Congress on terrorism to which India has been subjected from 1956 to the present and the measures taken by India against it. Raman's biographical data, submitted to Congress, identified him as moving from the Indian Police Service in 1984 to a permanent post in the Cabinet Secretariat and as serving from 1988 to 1994 as "head of the Counter-terrorism division of the Research & Analysis Wing (R & AW), India's external intelligence agency." The Challenge of Terrorism in Asia and the Pacific: Joint Hearing Before the Committee on International Relations, 108th Cong. 21 (2003) (statement submitted by Bahukutumbi Raman).


If this case had involved an agent's claimed membership in an agency more well-known in the United States, such as Interpol or the KGB, the IJ or BIA would not have required evidence of their existence. The issue simply would not have arisen because the IJ or BIA would have unconsciously taken notice of the fact of those agencies' existence. Judicial notice is appropriate in exactly this circumstance — to ensure that administrative or judicial ignorance is not insulated from review through hyper-technical application of the general rule that the court can consider only evidence considered by the Board. Fisher, 79 F.3d at 964.


We are compelled to reverse an adverse credibility finding by the Board whose centerpiece is lack of evidence of the existence of the RAW.


Petition GRANTED. The case is REMANDED to the Board