7.4 The abovementioned considerations which apparently necessitated conferment of legal status on SPG find articulation in the SPG Act 1988, salient features of which can be seen in the following sections of the Act :-

EXTRACTS OF THE SPECIAL PROTECTION GROUP ACT 1988. (NO. 34 OF 1988)

"This Act received the assent of the President on the 2nd June 1988.

An act to provide for the constitution and regulation of an armed force of the Union for providing proximate security to the Prime Minister of India and the members of his immediate family and for matters connected therewith.

S. 2 (a) "active duty" in relation to a member of the Group means any duty as such member during the period when he is posted to physically protect the Prime Minister of India and the members of his immediate family, wherever he or they may be;"

REGARDING DEFINITION OF PROXIMATE SECURITY :-

S.2 "(g) 'proximate security means protection provided from close quarters, during journey by road, rail, aircraft, watercraft or on foot or any other means of transport and shall include the places of functions, engagements,residence or halt and shall comprise ring round teams, isolation cordons, the sterile zone around, and the rostrum and access control to the person or members of his immediate family;"

REGARDING CONFERMENT OF STATUS OF ARMED FORCE :-

4 (1) "There shall be an armed force of the Union called the Special Protection Group for providing proximate security to the Prime Minister and the members of his immediate family."

S.13. The Central Government may, by general or special order published in the Official Gazette, direct that, subject to such conditions and limitations as may be specified in that order, any member of the Group may exercise or discharge such powers or duties as may be specified in the said order for giving effect to the provisions of this Act.

S. 14. It shall be the duty of every Ministry and Department of Administration, every Indian Mission, every local or other authority of every civil or military authority to act in aid of the Director or any member of the Group whenever called upon to do so in furtherance of the duties and responsibilities assigned to such Director or member.

CONFERMENT OF STATUTORY PROTECTION :-

S. 15. "No suit, prosecution or other legal proceeding shall lie against the Group or any member thereof on whom powers have been conferred or duties have been imposed under this Act, or any order issued or any rule made thereunder for anything which is in good faith done or purported to be done or omitted to be done in p0ursuance of this Act or any order issued or any rule made thereunder or any order issued under any such rule. "

7.5 Passing of the SPG Act, 1988, had an extremely significant fallout with far reaching implications. The SPG Act, 1988, legally circumscribed the parameters restricting SPG protection exclusively to the Prime Minister and his immediate family members. This became a controversial issue when the question of providing protection to Shri Rajiv Gandhi was debated after he had ceased to be the Prime Minister of India in December 1989. Details of this controversy have been discussed at the appropriate stage in this chapter.

8 A question has arisen before the Commission as to why provision was not made at the time of enactment of the SPG Act 1988 for providing security to the former Prime Ministers and their families as well; had it been done, there would have been no confusion regarding extension of SPG protection to Shri Rajiv Gandhi, as demanded by Congress (I) after he had ceased to be the Prime Minister in December 1989 and SPG cover was substituted with an alternative security.

8.1 A glance at the sequence of events which led to the creation of SPG shows that SPG was, in fact, created for the protection of Shri Rajiv Gandhi when he was the Prime Minister keeping in view the threat perceptions applicable to him.

This fact has been forcefully brought home in the Report of Justice J.S. Verma Commission of Inquiry. Chapter IX, para 9.14, of the report categorically states as follows :-

9.14 ....It was for Rajiv Gandhi as Prime Minister, in view of very high threat to him, that the Special Protection Group was constituted which had been trained specially to provide protection to Rajiv Gandhi against threat to him from several sources."

Shri P. Chidambaram, during his deposition before the Commission elaborated on this and confirmed that :-

Deposition of Shri P. Chidambaram dt. 21.11.1996 (Page No.1-2)

"The person holding the office of Prime Minister after the assassination of Smt. Indira Gandhi till the SPG Act was passed in 1988 was having serious threats and was extremely vulnerable.....(a) the aftermath of riots following the assassination of Smt. Indira Gandhi (b) threats from Sikh militants to Rajiv Gandhi and his family (c) attack on Shri Rajiv Gandhi at Raj Ghat on 2nd October, 1986 (d) information received in November 1987 of LTTE threats to assassinate Shri Rajiv Gandhi.

Shri Rajiv Gandhi was the Prime Minister at that time. Therefore a law to protect the person holding the office of Prime Minister was necessarily to Shri Rajiv Gandhi at that time."

8.2 It is, indeed, ironical, that when a law was being enacted to regulate an organisation created for the proximate security of Shri Rajiv Gandhi as Prime Minister, it did not contemplate provision of protection to him when he ceased to be the Prime Minister and faced magnified threats as has been brought out in the analysis of threat perception in the preceding chapter.

8.2.1 Shri P. Chidambaram, in his deposition dt. 6.11.96, has attempted to explain away this issue by giving a justification that the decision to confine SPG protection only to the PM was in order to retain its effectiveness. He stated :-

"... since it was a new Organisation, we thought that in order to be effective it should be confined to the office of the Prime Minister."

Deposition dt. 7th Dec. 1996 (Page No.6)

"........ Since we were creating a special force, and it was a new experiment, we confined it to the Prime Minister and it was not extended to anyone......"

(Deposition dt. 6.11.96)

"There were constraints on personnel, constraints on training at the time when the Law was enacted."

8.2.2 While SPG was raised and deployed keeping in mind the specific threats to the security of Shri Rajiv Gandhi, when the bill was debated for enactment of a statute for the SPG, the office of the Prime Minister became the primary consideration. Shri P. Chidambaram, in his deposition dt. 6th November, 1996, conceded that :-

"During the processing of the bill it never occurred that it would be extended to the ex- P.M..... This development of enacting a law was not oriented because of personalities."

8.3 During his deposition before the Commission, Shri V.P. Singh has squarely laid the blame for this at the doorstep of the Congress (I) Government which was then in power and was instrumental in piloting the SPG Bill in the Parliament, of not contemplating the option of extending SPG cover to former Prime Ministers.

Deposition of VP Singh dt. 12th November , 1996, (P. NO.5-7) :-

"I have evidence of Shri Mani Shankar Aiyer who, in his Parliament Speech dated 13th May, 1993, Col.386 has stated 'I also admit to the arrogance that was in the mind of the Congress party when at the time of framing the Act it did not envisage the possibility that Rajiv would cease to be the P.M. and would still be in need of the SPG protection. I confess that.' This proves that it was the arrogance of the Congress Party as per the main spokesman Shri Mani Shankar Aiyer that they were totally oblivious of the security threat of ex- Prime Minister."

8.3.1 Deposing before the Commission, Shri P. Chidambaram admitted that :-

"...I did not undertake any exercise to anticipate a situation when Rajiv Gandhi may lose elections and demit the office."

Deposition of Shri P. Chidambaram, dt. 23rd. Dec., 1996 :-

"We were fully aware that even in 1988 Rajiv Gandhi would need security even if he ceased to be Prime Minister, but it was not thought, at that stage, that it should be by SPG. Equal protection to SPG could have been provided by amending the Blue Book."

Shri P. Chidambaram, in the deposition also attempted to lay the blame on the Intelligence Bureau for failing to perceive such a contingency, even though he was incharge of security. He stated:

"I was in charge of security then...... IB should have considered the matter at the pre- election stage that if in the post election period Rajiv Gandhi does not come to power, what would be his security scenario."

8.4 At this stage, it is pertinent to mention that while the debate was on in Parliament regarding the passing of the SPG Act, on 12th May, 1988, Shri P. Upendra, Member of Parliament, raised this precise point in the Rajya Sabha. Extract of his statement on this aspect in the Rajya Sabha, which is eloquently self explanatory, is reproduced below :-

Exh.610-Rajya Sabha debates dated 12.05.1988- Col.No.293 and 294

"SHRI PARVATHANENI UPENDRA. The Minister will reply on this.(Interruptions) Suppose you say there are special reasons for a particular family or a particular individual and they are exposed to a big security risk, goes out of power or office tomorrow then who will protect him? What will happen to him? This Bill does not say about that (Interruptions) I am posing this question to the Minister. Let him answer because these points will arise. You are concerned about the Prime Minister and no Prime Minister is permanent."

9 In this entire controversy, the most honest admission comes from the AICC(I) spokesman, Shri M.J. Akbar, who was quoted in a news item captioned "Lone securityman in Rajiv's wake" published in "Times of India, New Delhi" dt. February 8th, 1990, on the subject of scaling down of Rajiv Gandhi's security. He has been quoted to have said :

"Just because Mr. Rajiv Gandhi is no longer the Prime Minister it does not mean that he has become less of a target. On the contrary, he is more of a target now and more vulnerable.... it was our fault..that we did not envisage a political scenario in which Mr. Rajiv Gandhi would not be the Prime Minister. But what is the price we are expected to pay for this fault? It is for the nation to judge the issue."

10 It can be said that the policy of the Congress was short sighted. But the matter requires to be examined in this light that a law is enacted to a situation prevailing at a given time. Law has to respond to felt necessities of the time. The threat scenario of Rajiv Gandhi was in view at the time of creation of SPG by an executive order, and, to provide legal cover, SPG Act was enacted in 1988. At the time of the enactment of the SPG Act, had there been any former Prime Minister facing very grave threats to his life, and if, in that situation, such former Prime Minister would have been excluded from the ambit of the Act, it could be legitimately and successfully argued that the Government of Rajiv Gandhi had deliberately excluded such former Prime Minister who, too, was facing extremely grave threats to his life; however, such was not the situation. If Rajiv Gandhi lost majority in election and ceased to be the Prime Minister, but his threat scenario, instead of going down, escalated or accentuated and graph gone high, situation or felt necessity demanded amendment in the SPG Act to cover ex- Prime Minister. But this was not done. Why was it not done ? Was it not the felt necessity - are the questions to be examined.