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We know this much: On December 13, 2001, the Indian Parliament was in its winter session. (The NDA government was under attack for yet another corruption scandal.) At 11.30 in the morning, five armed men in a white Ambassador car fitted out with an Improvised Explosive Device drove through the gates of Parliament House. When they were challenged, they jumped out of the car and opened fire. In the gun battle that followed, all the attackers were killed. Eight security personnel and a gardener were killed too. The dead terrorists, the police said, had enough explosives to blow up the Parliament building, and enough ammunition to take on a whole battalion of soldiers. Unlike most terrorists, these five left behind a thick trail of evidence—weapons, mobile phones, phone numbers, ID cards, photographs, packets of dry fruit, and even a love letter.
Not surprisingly, PM A.B. Vajpayee seized the opportunity to compare the assault to the September 11 attacks in the US that had happened only three months previously.
On December 14, 2001, the day after the attack on Parliament, the Special Cell of the Delhi Police claimed it had tracked down several people suspected to have been involved in the conspiracy. A day later, on December 15, it announced that it had "cracked the case": the attack, the police said, was a joint operation carried out by two Pakistan-based terrorist groups, Lashkar-e-Toiba and Jaish-e-Mohammed. Twelve people were named as being part of the conspiracy. Ghazi Baba of the Jaish (Usual Suspect I), Maulana Masood Azhar also of the Jaish (Usual Suspect II); Tariq Ahmed (a "Pakistani"); five deceased "Pakistani terrorists" (we still don't know who they are). And three Kashmiri men, S.A.R. Geelani, Shaukat Hussain Guru, and Mohammed Afzal; and Shaukat's wife Afsan Guru. These were the only four to be arrested.
In the tense days that followed, Parliament was adjourned. On December 21, India recalled its high commissioner from Pakistan, suspended air, rail and bus communications and banned over-flights. It put into motion a massive mobilisation of its war machinery, and moved more than half-a-million troops to the Pakistan border. Foreign embassies evacuated their staff and citizens, and tourists travelling to India were issued cautionary travel advisories. The world watched with bated breath as the subcontinent was taken to the brink of nuclear war. (All this cost India an estimated Rs 10,000 crore of public money. A few hundred soldiers died just in the panicky process of mobilisation.)
Almost three-and-a-half years later, on August 4, 2005, the Supreme Court delivered its final judgement in the case. It endorsed the view that the Parliament attack be looked upon as an act of war. It said, "The attempted attack on Parliament is an undoubted invasion of the sovereign attribute of the State including the Government of India which is its alter ego...the deceased terrorists were roused and impelled to action by a strong anti-Indian feeling as the writing on the fake home ministry sticker found on the car (Ex PW1/8) reveals." It went on to say "the modus operandi adopted by the hardcore 'fidayeens' are all demonstrative of launching a war against the Government of India".
The text on the fake home ministry sticker read as follows:
"INDIA IS A VERY BAD COUNTRY AND WE HATE INDIA WE WANT TO DESTROY INDIA AND WITH THE GRACE OF GOD WE WILL DO IT GOD IS WITH US AND WE WILL TRY OUR BEST. THIS EDIET WAJPAI AND ADVANI WE WILL KILL THEM. THEY HAVE KILLED MANY INNOCENT PEOPLE AND THEY ARE VERY BAD PERSONS THERE BROTHER BUSH IS ALSO A VERY BAD PERSON HE WILL BE NEXT TARGET HE IS ALSO THE KILLER OF INNOCENT PEOPLE HE HAVE TO DIE AND WE WILL DO IT."
This subtly worded sticker-manifesto was displayed on the windscreen of the car bomb as it drove into Parliament. (Given the amount of text, it's a wonder the driver could see anything at all. Maybe that's why he collided with the Vice-President's cavalcade?)
The police chargesheet was filed in a special fast-track trial court designated for cases under the Prevention of Terrorism Act (POTA). The trial court sentenced Geelani, Shaukat and Afzal to death. Afsan Guru was sentenced to five years of rigorous imprisonment. The high court subsequently acquitted Geelani and Afsan, but it upheld Shaukat's and Afzal's death sentence. Eventually, the Supreme Court upheld the acquittals, and reduced Shaukat's punishment to 10 years of rigorous imprisonment. However it not just confirmed, but enhanced Mohammed Afzal's sentence. He has been given three life sentences and a double death sentence.
In its August 4, 2005, judgement, the Supreme Court clearly says that there was no evidence that Mohammed Afzal belonged to any terrorist group or organisation. But it also says, "As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances, cumulatively weighed, would unerringly point to the collaboration of the accused Afzal with the slain 'fidayeen' terrorists."
So: No direct evidence, but yes, circumstantial evidence.
A controversial paragraph in the judgement goes on to say, "The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act" (emphasis mine).
To invoke the 'collective conscience of society' to validate ritual murder, which is what the death penalty is, skates precariously close to valorising lynch law. It's chilling to think that this has been laid upon us not by predatory politicians or sensation-seeking journalists (though they too have done that), but as an edict from the highest court in the land.
Spelling out the reasons for awarding Afzal the death penalty, the judgement goes on to say, "The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct."
This paragraph combines flawed logic with absolute ignorance of what it means to be a 'surrendered militant' in Kashmir today.
So: Should Mohammed Afzal's life become extinct?
A small, but influential minority of intellectuals, activists, editors, lawyers and public figures have objected to the Death Sentence as a matter of moral principle. They also argue that there is no empirical evidence to suggest that the Death Sentence works as a deterrent to terrorists. (How can it, when, in this age of fidayeen and suicide bombers, death seems to be the main attraction?)
If opinion polls, letters-to-the-editor and the reactions of live audiences in TV studios are a correct gauge of public opinion in India, then the lynch mob is expanding by the hour. It looks as though an overwhelming majority of Indian citizens would like to see Mohammed Afzal hanged every day, weekends included, for the next few years. L.K. Advani, leader of the Opposition, displaying an unseemly sense of urgency, wants him to be hanged as soon as possible, without a moment's delay.
Meanwhile in Kashmir, public opinion is equally overwhelming. Huge angry protests make it increasingly obvious that if Afzal is hanged, the consequences will be political. Some protest what they see as a miscarriage of justice, but even as they protest, they do not expect justice from Indian courts. They have lived through too much brutality to believe in courts, affidavits and justice any more. Others would like to see Mohammed Afzal march to the gallows like Maqbool Butt, a proud martyr to the cause of Kashmir's freedom struggle. On the whole, most Kashmiris see Mohammed Afzal as a sort of prisoner-of-war being tried in the courts of an occupying power. (Which it undoubtedly is). Naturally, political parties, in India as well as in Kashmir, have sniffed the breeze and are cynically closing in for the kill.
Sadly, in the midst of the frenzy, Afzal seems to have forfeited the right to be an individual, a real person any more. He's become a vehicle for everybody's fantasies—nationalists, separatists, and anti-capital punishment activists. He has become India's great villain and Kashmir's great hero—proving only that whatever our pundits, policymakers and peace gurus say, all these years later, the war in Kashmir has by no means ended.
In a situation as fraught and politicised as this, it's tempting to believe that the time to intervene has come and gone. After all, the judicial process lasted 40 months, and the Supreme Court has examined the evidence before it. It has convicted two of the accused and acquitted the other two. Surely this in itself is proof of judicial objectivity? What more remains to be said? There's another way of looking at it. Isn't it odd that the prosecution's case, proved to be so egregiously wrong in one half, has been so gloriously vindicated in the other?
The story of Mohammed Afzal is fascinating precisely because he is not Maqbool Butt. Yet his story too is inextricably entwined with the story of the Kashmir Valley. It's a story whose coordinates range far beyond the confines of courtrooms and the limited imagination of people who live in the secure heart of a self-declared 'superpower'. Mohammed Afzal's story has its origins in a war zone whose laws are beyond the pale of the fine arguments and delicate sensibilities of normal jurisprudence.
For all these reasons it is critical that we consider carefully the strange, sad, and utterly sinister story of the December 13 Parliament attack. It tells us a great deal about the way the world's largest 'democracy' really works. It connects the biggest things to the smallest. It traces the pathways that connect what happens in the shadowy grottos of our police stations to what goes on in the cold, snowy streets of Paradise Valley; from there to the impersonal malign furies that bring nations to the brink of nuclear war. It raises specific questions that deserve specific, and not ideological or rhetorical answers. What hangs in the balance is far more than the fate of one man.
On October 4 this year, I was one amongst a very small group of people who had gathered at Jantar Mantar in New Delhi to protest against Mohammed Afzal's death sentence. I was there because I believe Mohammed Afzal is only a pawn in a very sinister game. He's not the Dragon he's being made out to be, he's only the Dragon's footprint. And if the footprint is made to 'become extinct', we'll never know who the Dragon was. Is.
Not surprisingly, that afternoon there were more journalists and TV crews than there were protesters. Most of the attention was on Ghalib, Afzal's angelic looking little son. Kind-hearted people, not sure of what to do with a young boy whose father was going to the gallows, were plying him with ice-creams and cold drinks. As I looked around at the people gathered there, I noted a sad little fact. The convener of the protest, the small, stocky man who was nervously introducing the speakers and making the announcements, was S.A.R. Geelani, a young lecturer in Arabic Literature at Delhi University. Accused Number Three in the Parliament Attack case. He was arrested on December 14, 2001, a day after the attack, by the Special Cell of the Delhi Police. Though Geelani was brutally tortured in custody, though his family—his wife, young children and brother—were illegally detained, he refused to confess to a crime he hadn't committed. Of course you wouldn't know this if you read newspapers in the days following his arrest. They carried detailed descriptions of an entirely imaginary, non-existent confession. The Delhi Police portrayed Geelani as the evil mastermind of the Indian end of the conspiracy. Its scriptwriters orchestrated a hateful propaganda campaign against him, which was eagerly amplified and embellished by a hyper-nationalistic, thrill-seeking media. The police knew perfectly well that in criminal trials, judges are not supposed to take cognisance of media reports. So they knew that their entirely cold-blooded fabrication of a profile for these 'terrorists' would mould public opinion, and create a climate for the trial. But it would not come in for any legal scrutiny.
Here are some of the malicious, outright lies that appeared in the mainstream press:
'Case Cracked: Jaish behind Attack'
The Hindustan Times, Dec 16, 2001: Neeta Sharma and Arun Joshi
"In Delhi, the Special Cell detectives detained a Lecturer in Arabic, who teaches at Zakir Hussain College (Evening)...after it was established that he had received a call made by militants on his mobile phone." Another column in the same paper said: "Terrorists spoke to him before the attack and the lecturer made a phone call to Pakistan after the strike."
'DU Lecturer was terror plan hub'
The Times of India, Dec 17, 2001
"The attack on Parliament on December 13 was a joint operation of the Jaish-e-Mohammed (JeM) and Lashkar-e-Toiba (LeT) terrorist groups in which a Delhi University lecturer, Syed A.R. Gilani, was one of the key facilitators in Delhi, Police Commissioner Ajai Raj Sharma said on Sunday."
'Varsity don guided fidayeen'
The Hindu, Dec 17, 2001: Devesh K. Pandey
"During interrogation Geelani disclosed that he was in the know of the conspiracy since the day the 'fidayeen' attack was planned."
'Don lectured on terror in free time'
The Hindustan Times, Dec 17, 2001: Sutirtho Patranobis
"Investigations have revealed that by evening he was at the college teaching Arabic literature. In his free time, behind closed doors, either at his house or at Shaukat Hussain's, another suspect to be arrested, he took and gave lessons on terrorism..."
The Hindustan Times, Dec 17, 2001
"Geelani recently purchased a house for 22 lakhs in West Delhi. Delhi Police are investigating how he came upon such a windfall...".
'Aligarh se England tak chaatron mein aatankwaad ke beej bo raha tha Geelani (From Aligarh to England Geelani sowed the seeds of terrorism)
Rashtriya Sahara, Dec 18, 2001: Sujit Thakur
Trans: "...According to sources and information collected by investigation agencies, Geelani has made a statement to the police that he was an agent of Jaish-e-Mohammed for a long time.... It was because of Geelani's articulation, style of working and sound planning that in 2000 Jaish-e-Mohammed gave him the responsibility of spreading intellectual terrorism."
'Terror suspect frequent visitor to Pak mission'
The Hindustan Times, Dec 21, 2001: Swati Chaturvedi
"During interrogation, Geelani has admitted that he had made frequent calls to Pakistan and was in touch with militants belonging to Jaish-e-Mohammed...Geelani said that he had been provided with funds by some members of the Jaish and told to buy two flats that could be used in militant operations."
'Person of the Week'
Sunday Times of India, Dec 23, 2001:
"A cellphone proved his undoing. Delhi University's Syed A.R. Geelani was the first to be arrested in the December 13 case—a shocking reminder that the roots of terrorism go far and deep..."
Zee TV trumped them all. It produced a film called December 13th, a 'docudrama' that claimed to be the 'truth based on the police chargesheet'. (A contradiction in terms, wouldn't you say?) The film was privately screened for Prime Minister A.B. Vajpayee and Home Minister L.K. Advani. Both men applauded the film. Their approbation was widely reported by the media.
TV grab of one of the terrorists of the December 13, 2001, Parliament attack
The Supreme Court dismissed an appeal to stay the broadcast of the film on the grounds that judges are not influenced by the media. (Would the Supreme Court concede that even if judges are beyond being influenced by media reports, the 'collective conscience of the society' might not be?) December 13th was broadcast on Zee TV's national network a few days before the fast-track trial court sentenced Geelani, Afzal and Shaukat to death. Geelani eventually spent 18 months in jail, many of them in solitary confinement on death row.
He was released when the high court acquitted him and Afsan Guru. (Afsan, who was pregnant when she was arrested, had her baby in prison. Her experience broke her. She now suffers from a serious psychotic condition.) The Supreme Court upheld the acquittal. It found absolutely no evidence to link Geelani with the Parliament attack or with any terrorist organisation. Not a single newspaper or journalist or TV channel has seen fit to apologise to Geelani for their lies. But S.A.R.
Geelani's troubles didn't end there. His acquittal left the Special Cell with a plot, but no 'mastermind'. This, as we shall see, becomes something of a problem. More importantly, Geelani was a free man now—free to meet the press, talk to lawyers, clear his name. On the evening of February 8, 2005, during the course of the final hearings at the Supreme Court, Geelani was making his way to his lawyer's house. A mysterious gunman appeared from the shadows and fired five bullets into his body. Miraculously, he survived. It was an unbelievable new twist to the story. Clearly somebody was worried about what he knew, what he would say.... One would imagine that the police would give this investigation top priority, hoping it would throw up some vital new leads into the Parliament attack case. Instead, the Special Cell treated Geelani as though he was the prime suspect in his own assassination. They confiscated his computer and took away his car. Hundreds of activists gathered outside the hospital and called for an enquiry into the assassination attempt, which would include an investigation into the Special Cell itself. (Of course that never happened. More than a year has passed, nobody shows any interest in pursuing the matter. Odd.)
So here he was now, S.A.R. Geelani, having survived this terrible ordeal, standing up in public at Jantar Mantar, saying that Mohammed Afzal didn't deserve a death sentence. How much easier it would be for him to keep his head down, stay at home. I was profoundly moved, humbled, by this quiet display of courage.
Across the line from S.A.R. Geelani, in the jostling crowd of journalists and photographers, trying his best to look inconspicuous in a lemon T-shirt and gaberdine pants, holding a little tape-recorder, was another Gilani. Iftikhar Gilani. He had been in prison too. He was arrested and taken into police custody on June 9, 2002. At the time he was a reporter for the Jammu-based Kashmir Times. He was charged under the Official Secrets Act. His 'crime' was that he possessed obsolete information on Indian troop deployment in 'Indian-held Kashmir'. (This 'information', it turns out, was a published monograph by a Pakistani research institute, and was freely available on the Internet for anybody who wished to download it. ) Iftikhar Gilani's computer was seized. IB officials tampered with his hard drive, meddled with the downloaded file, changed the words 'Indian-held Kashmir' to 'Jammu and Kashmir' to make it sound like an Indian document, and added the words 'Only for Reference. Strictly Not For Circulation', to make it seem like a secret document smuggled out of the home ministry. The directorate general of military intelligence—though it had been given a photocopy of the monograph—ignored repeated appeals from Iftikhar Gilani's counsel, kept quiet, and refused to clarify the matter for a whole six months.
Ghalib, 7, Afzal’s son, with Yasin Malik and S.A.R. Geelani in Delhi on Oct ’06
Once again the malicious lies put out by the Special Cell were obediently reproduced in the newspapers. Here are a few of the lies they told:
"Iftikhar Gilani, 35-year-old son-in-law of Hurriyat hardliner Syed Ali Shah Geelani, is believed to have admitted in a city court that he was an agent of Pakistan's spy agency." -- The Hindustan Times, June, 11, 2002: Neeta Sharma
"Iftikhar Gilani was the pin-point man of Syed Salahuddin of Hizbul Mujahideen. Investigations have revealed that Iftikhar used to pass information to Salahuddin about the moves of Indian security agencies. He had camouflaged his real motives behind his journalist's facade so well that it took years to unmask him, well-placed sources said." -- The Pioneer, Pramod Kumar Singh
"Geelani ke damaad ke ghar aaykar chhaapon mein behisaab sampati wa samwaidansheil dastaweiz baramad" (Enormous wealth and sensitive documents recovered from the house of Geelani's son-in-law during income tax raids) -- Hindustan, June 10, 2002
Never mind that the police chargesheet recorded a recovery of only Rs 3,450 from his house.
Meanwhile, other media reports said that he had a three-bedroom flat, an undisclosed income of Rs 22 lakh, had evaded income tax of Rs 79 lakh, that he and his wife were absconding to evade arrest.
But arrested he was. In jail, Iftikhar Gilani was beaten, abjectly humiliated. In his book My Days In Prison he tells of how, among other things, he was made to clean the toilet with his shirt and then wear the same shirt for days. After six months of court arguments and lobbying by his colleagues, when it became obvious that if the case against him continued it would lead to serious embarrassment, he was released.
Here he was now. A free man, a reporter come to Jantar Mantar to cover a story. It occurred to me that S.A.R. Geelani, Iftikhar Gilani and Mohammed Afzal would have been in Tihar jail at the same time. (Along with scores of other less well known Kashmiris whose stories we may never learn.)
It can and will be argued that the cases of both S.A.R. Geelani and Iftikhar Gilani serve only to demonstrate the objectivity of the Indian judicial system and its capacity for self-correction, they do not discredit it. That's only partly true. Both Iftikhar Gilani and S.A.R. Geelani are fortunate to be Delhi-based Kashmiris with a community of articulate, middle-class peers; journalists and university teachers, who knew them well and rallied around them in their time of need. S.A.R. Geelani's lawyer Nandita Haksar put together an All India Defence Committee for S.A.R. Geelani (of which I was a member). There was a coordinated campaign by activists, lawyers and journalists to rally behind Geelani. Well-known lawyers Ram Jethmalani, K.G. Kannabiran, Vrinda Grover represented him. They showed up the case for what it was—a pack of absurd assumptions, suppositions, and outright lies, bolstered by fabricated evidence. So of course judicial objectivity exists. But it's a shy beast that lives somewhere deep in the labyrinth of our legal system. It shows itself rarely. It takes whole teams of top lawyers to coax it out of its lair and make it come out and play. It's what in newspaper-speak would be called a Herculean task. Mohammed Afzal did not have Hercules on his side.
For five months, from the time he was arrested to the day the police charge-sheet was filed, Mohammed Afzal, lodged in a high-security prison, had no legal defence, no legal advice. No top lawyers, no defence committee (in India or Kashmir), and no campaign. Of all the four accused, he was the most vulnerable. His case was far more complicated than Geelani's. Significantly, during much of this time, Afzal's younger brother Hilal was illegally detained by the Special Operations Group (SOG) in Kashmir. He was released after the chargesheet was filed. (This is a piece of the puzzle that will only fall into place as the story unfolds.)
In a serious lapse of procedure, on December 20, 2001, the investigating officer, Asst Commissioner of Police (ACP) Rajbir Singh (affectionately known as Delhi's 'encounter specialist' for the number of 'terrorists' he has killed in 'encounters'), called a press conference at the Special Cell. Mohammed Afzal was made to 'confess' before the media. Deputy commissioner of police (DCP) Ashok Chand told the press that Afzal had already confessed to the police. This turned out to be untrue. Afzal's formal confession to the police took place only the next day (after which he continued to remain in police custody and vulnerable to torture, another serious procedural lapse). In his media 'confession' Afzal incriminated himself in the Parliament attack completely.
From left; Shaukat Guru, S.A.R. Geelani and Mohammed Afzal in Delhi, 2001
During the course of this 'media confession' a curious thing happened. In an answer to a direct question, Afzal clearly said that Geelani had nothing to do with the attack and was completely innocent. At this point, ACP Rajbir Singh shouted at him and forced him to shut up, and requested the media not to carry this part of Afzal's 'confession'. And they obeyed! The story came out only three months later when the television channel Aaj Tak re-broadcast the 'confession' in a programme called Hamle Ke Sau Din (Hundred Days of the Attack) and somehow kept this part in. Meanwhile in the eyes of the general public—who know little about the law and criminal procedure—Afzal's public 'confession' only confirmed his guilt. The verdict of the 'collective conscience of society' would not have been hard to second guess.
The day after this 'media' confession, Afzal's 'official' confession was extracted from him. The flawlessly structured, perfectly fluent narrative dictated in articulate English to DCP Ashok Chand (in the DCP's words, "he kept on narrating and I kept on writing") was delivered in a sealed envelope to a judicial magistrate. In this confession, Afzal, now the sheet-anchor of the prosecution's case, weaves a masterful tale that connected Ghazi Baba, Maulana Masood Azhar, a man called Tariq, and the five dead terrorists; their equipment, arms and ammunition, home ministry passes, a laptop, and fake ID cards; detailed lists of exactly how many kilos of what chemical he bought from where, the exact ratio in which they were mixed to make explosives; and the exact times at which he made and received calls on which mobile number. (For some reason, by then Afzal had also changed his mind about Geelani and implicated him completely in the conspiracy.)
Each point of the 'confession' corresponded perfectly with the evidence that the police had already gathered. In other words, Afzal's confessional statement slipped perfectly into the version that the police had already offered the press days ago, like Cinderella's foot into the glass slipper. (If it were a film, you could say it was a screenplay, which came with its own box of props. Actually, as we know now, it was made into a film. Zee TV owes Afzal some royalty payments. )
Eventually, both the high court and the Supreme Court set aside Afzal's confession citing 'lapses and violations of procedural safeguards'. But Afzal's confession somehow survives, the phantom keystone in the prosecution's case. And before it was technically and legally set aside, the confessional document had already served a major extra-legal purpose: On December 21, 2001, when the Government of India launched its war effort against Pakistan it said it had 'incontrovertible evidence' of Pakistan's involvement. Afzal's confession was the only 'proof' of Pakistan's involvement that the government had! Afzal's confession. And the sticker-manifesto. Think about it. On the basis of this illegal confession extracted under torture, hundreds of thousands of soldiers were moved to the Pakistan border at huge cost to the public exchequer, and the subcontinent devolved into a game of nuclear brinkmanship in which the whole world was held hostage.
Big Whispered Question: Could it have been the other way around? Did the confession precipitate the war, or did the need for a war precipitate the need for the confession?
Later, when Afzal's confession was set aside by the higher courts, all talk of Jaish-e-Mohammed and Lashkar-e-Taiba ceased. The only other link to Pakistan was the identity of the five dead fidayeen. Mohammed Afzal, still in police custody, identified them as Mohammed, Rana, Raja, Hamza and Haider. The home minister said they "looked like Pakistanis", the police said they were Pakistanis, the trial court judge said they were Pakistanis. And there the matter rests. Had we been told that their names were Happy, Bouncy, Lucky, Jolly and Kidingamani from Scandinavia, we would have had to accept that too. We still don't know who they really are, or where they're from. Is anyone curious? Doesn't look like it. The high court said the "identity of the five deceased thus stands established. Even otherwise it makes no difference. What is relevant is the association of the accused with the said five persons and not their names."
In his Statement of the Accused (which, unlike the confession, is made in court and not police custody) Afzal says: "I had not identified any terrorist. Police told me the names of terrorists and forced me to identify them." But by then it was too late for him. On the first day of the trial, the lawyer appointed by the trial court judge agreed to accept Afzal's identification of the bodies and the postmortem reports as undisputed evidence without formal proof! This baffling move was to have serious consequences for Afzal. To quote from the Supreme Court judgement, "The first circumstance against the accused Afzal is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. On this aspect the evidence remains unshattered."
Of course it's possible that the dead terrorists were foreign militants. But it is just as possible that they were not. Killing people and falsely identifying them as 'foreign terrorists', or falsely identifying dead people as 'foreign terrorists', or falsely identifying living people as terrorists, is not uncommon among the police or security forces either in Kashmir or even on the streets of Delhi.
|Bodies of the Chhittisinghpura ‘terrorists’ being exhumed
On October 20, 2003, the Srinagar newspaper Al-safa printed a picture of a 'Pakistani militant' who the 18 Rashtriya Rifles claimed they had killed while he was trying to storm an army camp. A baker in Kupwara, Wali Khan, saw the picture and recognised it as his son, Farooq Ahmed Khan, who had been picked up by soldiers in a Gypsy two months earlier. His body was finally exhumed more than a year later.
On April 20, 2004, the 18 Rashtriya Rifles posted in the Lolab valley claimed it had killed four foreign militants in a fierce encounter. It later turned out that all four were ordinary labourers from Jammu, hired by the army and taken to Kupwara. An anonymous letter tipped off the labourers' families who travelled to Kupwara and eventually had the bodies exhumed.
On November 9, 2004, the army showcased 47 surrendered 'militants' to the press at Nagrota, Jammu, in the presence of the General Officer Commanding XVI, Corps and the Director General of Police, J&K. The J&K police later found that 27 of them were just unemployed men who had been given fake names and fake aliases and promised government jobs in return for playing their part in the charade.
These are just a few quick examples to illustrate the fact that in the absence of any other evidence, the police's word is just not good enough.
The hearings in the fast-track trial court began in May 2002. Let's not forget the climate in which the trial took place. The frenzy over the 9/11 attacks was still in the air. The US was gloating over its victory in Afghanistan. Gujarat was convulsed by communal frenzy. A few months previously, coach S-6 of the Sabarmati Express had been set on fire and 58 Hindu pilgrims had been burned alive inside. As 'revenge' in an orchestrated pogrom, more than 2,000 Muslims were publicly butchered and more than 1,50,000 driven from their homes.
For Afzal, everything that could go wrong went wrong. He was incarcerated in a high-security prison, with no access to the outside world, and no money to hire a lawyer professionally. Three weeks into the trial the lawyer appointed by the court asked to be discharged from the case because she had now been professionally hired to be on the team of lawyers for S.A.R. Geelani's defence. The court appointed her junior, a lawyer with very little experience, to represent Afzal. He did not once visit his client in jail to take instructions. He did not summon a single witness for Afzal's defence and barely cross-questioned any of the prosecution witnesses. Five days after he was appointed, on July 8, Afzal asked the court for another lawyer and gave the court a list of lawyers whom he hoped the court might hire for him. Each of them refused. (Given the frenzy of propaganda in the media, it was hardly surprising. At a later stage of the trial, when senior advocate Ram Jethmalani agreed to represent Geelani, Shiv Sena mobs ransacked his Bombay office.) The judge expressed his inability to do anything about this, and gave Afzal the right to cross-examine witnesses. It's astonishing for the judge to expect a layperson to be able cross-examine witnesses in a criminal trial. It's a virtually impossible task for someone who does not have a sophisticated understanding of criminal law, including new laws that had just been passed, like POTA, and the amendments to the Evidence Act and the Telegraph Act. Even experienced lawyers were having to work overtime to bring themselves up to date.
The case against Afzal was built up in the trial court on the strength of the testimonies of almost 80 prosecution witnesses: landlords, shopkeepers, technicians from cell-phone companies, the police themselves.
This was a crucial period of the trial, when the legal foundation of the case was being laid. It required meticulous back-breaking legal work in which evidence needed to be amassed and put on record, witnesses for the defence summoned and testimonies from prosecution witnesses cross-questioned. Even if the verdict of the trial court went against the accused (trial courts are notoriously conservative), the evidence could then be worked upon by lawyers in the higher courts. Through this absolutely critical period, Afzal went virtually undefended. It was at this stage that the bottom fell out of his case, and the noose tightened around his neck.
Even still, during the trial, the skeletons began to clatter out of the Special Cell's cupboard in an embarrassing heap. It became clear that the accumulation of lies, fabrications, forged documents and serious lapses in procedure began from the very first day of the investigation. While the high court and Supreme Court judgements have pointed these things out, they have just wagged an admonitory finger at the police, or occasionally called it a 'disturbing feature', which is a disturbing feature in itself. At no point in the trial has the police been seriously reprimanded, leave alone penalised. In fact, almost every step of the way, the Special Cell displayed an egregious disregard for procedural norms. The shoddy callousness with which the investigations were carried out demonstrate a worrying belief that they wouldn't be 'found out,' and if they were, it wouldn't matter very much. Their confidence does not seem to have been misplaced.
There is fudging in almost every part of the investigation.
Consider the Time and Place of the Arrests and Seizures: The Delhi Police said that Afzal and Shaukat were arrested in Srinagar based on information given to them by Geelani following his arrest. The court records show that the message to look out for Shaukat and Afzal was flashed to the Srinagar police on December 15 at 5.45 am. But according to the Delhi Police's records Geelani was only arrested in Delhi on December 15 at 10 am—four hours after they had started looking for Afzal and Shaukat in Srinagar. They haven't been able to explain this discrepancy. The high court judgement puts it on record that the police version contains a 'material contradiction' and cannot be true. It goes down as a 'disturbing feature.' Why the Delhi Police needed to lie remains unasked, and unanswered.
When the police arrest somebody, procedure requires them to have public witnesses for the arrest who sign an Arrest Memo and a Seizure Memo for what they may have 'seized' from those who have been arrested—goods, cash, documents, whatever. The police claim they arrested Afzal and Shaukat together on December 15 at 11 am in Srinagar. They say they 'seized' the truck the two men were fleeing in (it was registered in the name of Shaukat's wife). They also say they seized a Nokia mobile phone, a laptop and Rs 10 lakh from Afzal. In his Statement of the Accused, Afzal says he was arrested at a bus stop in Srinagar and that no laptop, mobile phone or money was 'seized' from him.
Scandalously, the Arrest Memos for both Afzal and Shaukat have been signed in Delhi, by Bismillah, Geelani's younger brother, who was at the time being held in illegal confinement at the Lodhi Road Police Station. Meanwhile, the two witnesses who signed the seizure memo for the phone, the laptop and the Rs 10 lakh are both from the J&K Police. One of them is Head Constable Mohammed Akbar (Prosecution Witness 62) who, as we shall see later, is no stranger to Mohammad Afzal, and is not just any old policeman who happened to be passing by. Even by the J&K Police's own admission they first located Afzal and Shaukat in Parimpura Fruit Mandi. For reasons they don't state, the police didn't arrest them there. They say they followed them to a less public place—where there were no public witnesses.
So here's another serious inconsistency in the prosecution's case. Of this the high court judgement says 'the time of arrest of accused persons has been seriously dented'. Shockingly, it is at this contested time and place of arrest that the police claim to have recovered the most vital evidence that implicates Afzal in the conspiracy: the mobile phone and the laptop. Once again, in the matter of the date and time of the arrests, and in the alleged seizure of the incriminating laptop and the Rs 10 lakh, we have only the word of the police, against the word of a 'terrorist'.
The Seizures Continued: The seized laptop, the police said, contained the files that created the fake home ministry pass and the fake identity cards. It contained no other useful information. They claimed that Afzal was carrying it to Srinagar in order to return it to Ghazi Baba. The Investigating Officer, ACP Rajbir Singh, said that the hard disk of the computer had been sealed on January 16, 2002 (a whole month after the seizure). But the computer shows that it was accessed even after that date. The courts have considered this but taken no cognisance of it. (On a speculative note, isn't it strange that the only incriminating information found on the computer were the files used to make the fake passes and ID cards? And a Zee TV film clip showing the Parliament Building. If other incriminating information had been deleted, why wasn't this? And why did Ghazi Baba, Chief of Operations of an international terrorist organisation, need a laptop—with bad artwork on it— so urgently?)
Consider the Mobile phone call records: Stared at for long enough, a lot of the 'hard evidence' produced by the Special Cell begins to look dubious. The backbone of the prosecution's case has to do with the recovery of mobile phones, SIM cards, computerised call records, and the testimonies of officials from cellphone companies and shopkeepers who sold the phones and SIM cards to Afzal and his accomplices. The call records that were produced to show that Shaukat, Afzal , Geelani and Mohammad (one of the dead militants) had all been in touch with each other very close to the time of the attack were uncertified computer printouts, not even copies of primary documents. They were outputs of the billing system stored as text files that could have been easily doctored and at any time. For example, the call records that were produced show that two calls had been made at exactly the same time from the same SIM card, but from separate handsets with separate IMEI numbers. This means that either the SIM card had been cloned or the call records were doctored.
Consider the SIM card: To prop up its version of the story, the prosecution relies heavily on one particular mobile phone number—9811489429. The police say it was Afzal's number—the number that connected Afzal to Mohammad, Afzal to Shaukat, and Shaukat to Geelani. The police also say that this number was written on the back of the identity tags found on the dead terrorists. Pretty convenient. Lost Kitten! Call Mom at 9811489429. (It's worth mentioning that normal procedure requires evidence gathered at the scene of a crime to be sealed. The ID cards were never sealed and remained in the custody of the police and could have been tampered with at any time.)
|A suspected ‘militant’ gunned down by the police in Ansal Plaza, Delhi, 2002
The only evidence the police have that 9811489429 was indeed Afzal's number is Afzal's confession, which as we have seen is no evidence at all. The SIM card has never been found. The police produced a prosecution witness, Kamal Kishore, who identified Afzal and said that he had sold him a Motorola phone and a SIM card on December 4, 2001. However, the call records the prosecution relied on show that that particular SIM card was already in use on the November 6, a whole month before Afzal is supposed to have bought it! So either the witness is lying, or the call records are false. The high court glosses over this discrepancy by saying that Kamal Kishore had only said that he sold Afzal a SIM card, not this particular SIM card. The Supreme Court judgement loftily says "The SIM card should necessarily have been sold to Afzal prior to 4.12.2001." And that, my friends, is that.
Consider the Identification of the Accused: A series of prosecution witnesses, most of them shopkeepers, identified Afzal as the man to whom they had sold various things: ammonium nitrate, aluminum powder, sulphur, a Sujata mixer-grinder, packets of dry fruit and so on. Normal procedure would require these shopkeepers to pick Afzal out from a number of people in a test identification parade. This didn't happen. Instead Afzal was identified by them when he 'led' the police to these shops while he was in police custody and introduced to the witnesses as an Accused in the Parliament Attack. (Are we allowed to speculate about whether he led the police or the police led him to the shops? After all he was still in their custody, still vulnerable to torture. If his confession under these circumstances is legally suspect, then why not all of this?)
The judges have pondered the violation of these procedural norms but have not taken them very seriously. They said that they did not see why ordinary members of the public would have reason to falsely implicate an innocent person. But does this hold true, given the orgy of media propaganda that ordinary members of the public were subjected to, particularly in this case? Does this hold true, if you take into account the fact that ordinary shopkeepers, particularly those who sell electronic goods without receipts in the 'grey market', are completely beholden to the Delhi Police?
None of the inconsistencies that I have written about so far are the result of spectacular detective work on my part. A lot of them are documented in an excellent book called December 13th: Terror Over Democracy by Nirmalangshu Mukherji; in two reports (Trial of Errors and Balancing Act) published by the Peoples' Union for Democratic Rights, Delhi; and most important of all, in the three thick volumes of judgements of the trial court, the high court and the Supreme Court. All these are public documents, lying on my desk. Why is it that when there is this whole murky universe begging to be revealed, our TV channels are busy staging hollow debates between uninformed people and grasping politicians? Why is it that apart from a few sporadic independent commentators, our newspapers carry front-page stories about who the hangman is going to be, and macabre details about the length (60 metres) and weight (3.75 kg) of the rope that will be used to hang Mohammed Afzal (Indian Express, October 16, 2006). Shall we pause for a moment to say a few hosannas for the Free Press?
It's not an easy thing for most people to do, but if you can, unmoor yourself conceptually, if only for a moment, from the "Police is Good/Terrorists are Evil" ideology. The evidence on offer minus its ideological trappings opens up a chasm of terrifying possibilities. It points in directions which most of us would prefer not to look.
The prize for the Most Ignored Legal Document in the entire case goes to the Statement of the Accused Mohammed Afzal under Section 313 of the Criminal Procedure Code. In this document, the evidence against him is put to him by the court in the form of questions. He can either accept the evidence or dispute it, and has the opportunity to put down his version of his story in his own words. In Afzal's case, given that he has never had any real opportunity to be heard, this document tells his story in his voice.
In this document, Afzal accepts certain charges made against him by the prosecution. He accepts that he met a man called Tariq. He accepts that Tariq introduced him to a man called Mohammad. He accepts that he helped Mohammad come to Delhi and helped him to buy a second-hand white Ambassador car. He accepts that Mohammad was one of the five fidayeen who was killed in the Attack. The important thing about Afzal's Statement of the Accused is that he makes no effort to completely absolve himself or claim innocence. But he puts his actions in a context that is devastating. Afzal's statement explains the peripheral part he played in the Parliament attack. But it also ushers us towards an understanding of some possible reasons for why the investigation was so shoddy, why it pulls up short at the most crucial junctures and why it is vital that we do not dismiss this as just incompetence and shoddiness. Even if we don't believe Afzal, given what we do know about the trial and the role of the Special Cell, it is inexcusable not to look in the direction he's pointing. He gives specific information—names, places, dates. (This could not have been easy, given that his family, his brothers, his wife and young son live in Kashmir and are easy meat for the people he mentions in his deposition.)
In Afzal's words:
"I live in Sopre J&K and in the year 2000 when I was there Army used to harass me almost daily, then said once a week. One Raja Mohan Rai used to tell me that I should give information to him about militants. I was a surrendered militant and all militants have to mark Attendance at Army Camp every Sunday. I was not being physically torture by me. He used to only just threatened me. I used to give him small information which I used to gather from newspaper, in order to save myself. In June/ July 2000 I migrated from my village and went to town Baramullah. I was having a shop of distribution of Surgical instruments which I was running on commission basis. One day when I was going on my scooter S.T.F (State Task Force) people came and picked me up and they continuously tortured me for five days. Somebody had given information to S.T.F that I was again indulging in militant activities. That person was confronted with me and released in my presence. Then I was kept by them in custody for about 25 days and I got myself released by paying Rs 1 lakh. Special Cell People had confirmed this incident. Thereafter I was given a certificate by the S.T.F and they made me a Special Police Officer for six months. They were knowing I will not work for them. Tariq met me in Palhalan S.T.F camp where I was in custody of S.T.F. Tariq met me later on in Sri Nagar and told me he was basically working for S.T.F. I told him I was also working for S.T.F. Mohammad who was killed in Attack on Parliament was along with Tariq. Tariq told me he was from Keran sector of Kashmir and he told me that I should take Mohammad to Delhi as Mohammad has to go out of country from Delhi after some time. I don't know why I was caught by the police of Sri Nagar on 15.12.2001. I was boarding bus at Sri Nagar bus stop, for going home when police caught me. Witness Akbar who had deposed in the court that he had apprehended Shaukat and me in Sri Nagar had conducted a raid at my shop about a year prior to December 2001 and told me that I was selling fake surgical instruments and he took Rs 5000/- from me. I was tortured at Special Cell and one Bhoop Singh even compelled me to take urine and I saw family of S. A.R. Geelani also there, Geelani was in miserable condition. He was not in a position to stand. We were taken to Doctor for examination but instructions used to be issued that we have to tell Doctor that everything was alright with a threat that if we do not do so we be again tortured."
He then asks the court's permission to add some more information.
"Mohammad the slain terrorist of Parliament attack had come along with me from Kashmir. The person who handed him over to me is Tariq. Tariq is working with Security Force and S.T.F JK Police. Tariq told me that if I face any problem due to Mohammad he will help me as he knew the security forces and S.T.F very well... Tariq had told me that I just have to drop Mohammad at Delhi and do nothing else. And if I would not take Mohammad with me to Delhi I would be implicated in some other case. I under these circumstances brought Mohammad to Delhi under a compulsion without knowing he was a terrorist."
So now we have a picture emerging of someone who could be a key player. 'Witness Akbar' (PW 62), Mohd Akbar, Head Constable, Parimpora Police Station, the J&K policeman who signed the Seizure Memo at the time of Afzal's arrest. In a letter to Sushil Kumar, his Supreme Court lawyer, Afzal describes a chilling moment at one point in the trial. In the court, Witness Akbar, who had come from Srinagar to testify about the Seizure Memo, reassured Afzal in Kashmiri that "his family was alright". Afzal immediately recognised that this was a veiled threat. Afzal also says that after he was arrested in Srinagar he was taken to the Parimpora police station and beaten, and plainly told that his wife and family would suffer dire consequences if he did not co-operate. (We already know that Afzal's brother Hilal had been held in illegal detention by the SOG during some crucial months.)
In this letter, Afzal describes how he was tortured in the STF camp—with electrodes on his genitals and chillies and petrol in his anus. He mentions the name of Dy Superintendent of Police Dravinder Singh who said he needed him to do a 'small job' for him in Delhi. He also says that some of the phone numbers mentioned in the chargesheet can be traced to an STF camp in Kashmir.
Protests against Afzal’s hanging in Srinagar
It is Afzal's story that gives us a glimpse into what life is really like in the Kashmir Valley. It's only in the Noddy Book version we read about in our newspapers that Security Forces battle Militants and innocent Kashmiris are caught in the cross-fire. In the adult version, Kashmir is a valley awash with militants, renegades, security forces, double-crossers, informers, spooks, blackmailers, blackmailees, extortionists, spies, both Indian and Pakistani intelligence agencies, human rights activists, NGOs and unimaginable amounts of unaccounted-for money and weapons.
There are not always clear lines that demarcate the boundaries between all these things and people, it's not easy to tell who is working for whom.
Truth, in Kashmir, is probably more dangerous than anything else. The deeper you dig, the worse it gets. At the bottom of the pit is the SOG and STF that Afzal talks about. These are the most ruthless, indisciplined and dreaded elements of the Indian security apparatus in Kashmir. Unlike the more formal forces, they operate in a twilight zone where policemen, surrendered militants, renegades and common criminals do business. They prey upon the local population, particularly in rural Kashmir. Their primary victims are the thousands of young Kashmiri men who rose up in revolt in the anarchic uprising of the early '90s and have since surrendered and are trying to live normal lives.
In 1989, when Afzal crossed the border to be trained as a militant, he was only 20 years old. He returned with no training, disillusioned with his experience. He put down his gun and enrolled himself in Delhi University. In 1993 without ever having been a practising militant, he voluntarily surrendered to the Border Security Force (BSF). Illogically enough, it was at this point that his nightmares began. His surrender was treated as a crime and his life became a hell. Can young Kashmiri men be blamed if the lesson they draw from Afzal's story is that it would be not just stupid, but insane to surrender their weapons and submit to the vast range of myriad cruelties the Indian State has on offer for them?
The story of Mohammed Afzal has enraged Kashmiris because his story is their story too. What has happened to him could have happened, is happening and has happened to thousands of young Kashmiri men and their families. The only difference is that their stories are played out in the dingy bowels of joint interrogation centres, army camps and police stations where they have been burned, beaten, electrocuted, blackmailed and killed, their bodies thrown out of the backs of trucks for passers-by to find. Whereas Afzal's story is being performed like a piece of medieval theatre on the national stage, in the clear light of day, with the legal sanction of a 'fair trial', the hollow benefits of a 'free press' and all the pomp and ceremony of a so-called democracy.
If Afzal is hanged, we'll never know the answer to the real question: Who attacked the Indian Parliament? Was it the Lashkar-e-Toiba? The Jaish-e-Mohammed? Or does the answer lie somewhere deep in the secret heart of this country that we all live in and love and hate in our own beautiful, intricate, various, and thorny ways?
There ought to be a Parliamentary Inquiry into the December 13 attack on Parliament. While the inquiry is pending, Afzal's family in Sopore must be protected because they are vulnerable hostages in this bizarre story.
To hang Mohammed Afzal without knowing what really happened is a misdeed that will not easily be forgotten. Or forgiven. Nor should it be.
Notwithstanding the 10% Growth Rate.