His Life Should Become Extinct'
By Arundhati Roy
31 October , 2006
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'
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
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
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
The Hindu, Dec 17, 2001: Devesh K. Pandey
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
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
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
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
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.
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.
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
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.
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
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
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
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.
The best known among the
many well-documented cases in Kashmir, one that went on to become an
international scandal, is the killing that took place after the Chhittisinghpura
massacre. On the night of April 20, 2000, just before the US President
Bill Clinton arrived in New Delhi, 35 Sikhs were killed in the village
of Chhittisinghpura by 'unidentified gunmen' wearing Indian Army uniforms.
(In Kashmir many people suspected that Indian security forces were behind
the massacre.) Five days later the SOG and the 7th Rashtriya Rifles,
a counter-insurgency unit of the army, killed five people in a joint
operation outside a village called Pathribal. The next morning they
announced that the men were the Pakistan-based foreign militants who
had killed the Sikhs in Chhittisinghpura. The bodies were found burned
and disfigured. Under their (unburned) army uniforms, they were in ordinary
civilian clothes.It turned out that they were all local people, rounded
up from Anantnag district and brutally killed in cold blood.
There are others:
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
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
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.)
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,
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
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.
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.
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