Last Chance To Know
What Really Happened
By Nirmalangshu Mukherji
20 October, 2006
The attack on Parliament on December
13, 2001 was a major event in contemporary India. As the judicial procedure
into this case nears its end, with Mohammed Afzal to be hanged on October
20, our effort to get at the truth as to what really happened is about
to be scuttled. Who attacked Parliament and what was the conspiracy?
On what basis did the NDA government take the country close to a nuclear
war? What was the role of the State Task Force (J and K) on surrendered
militants? What was the role of the Special Cell of Delhi Police in
conducting the case?
A sessions court in Delhi
has announced that Mohammed Afzal, sentenced to death by the Supreme
Court of India on August 4, 2005, is to be hanged on October 20, 2006.
While the judicial procedure is nearing its end in the Parliament attack
case, have we under- stood one of the major events of contemporary India?
More importantly, will the said completion of the judicial process in
fact scuttle our effort at understanding the event?
Limits of Judiciary
The questions just asked
presuppose that the judgment of the Supreme Court failed to provide
the required understanding. Why? As a court of law, it is bound by a
structure of responsibilities. In the present case, the court was faced
with four appeals: two by the Delhi Police and one each by Afzal and
Shaukat. To that end, it exam- ined the evidence produced before the
trial court and the subsequent judgments by the trial court and the
high court. The evidence was produced by an authorised investigating
agency, namely, the Special Cell of the Delhi Police, with its ACP Rajbir
Singh as the investigating officer. The evidence was presented in the
trial court with supporting materials and witnesses. Most of the evidence,
especially in Afzal's case, went unchallenged. The trial court provided
Afzal with an accredited lawyer who chose to remain largely inactive.
In fairness, we must note
that whenever the defence - especially Gilani's and Shaukat's eminent
team of lawyers - was able to question some evidence success- fully,
the high court and the Supreme Court did take notice of that and set
the evidence aside. This is particularly true of the confessions obtained
from Afzal and Shaukat; setting them aside created a huge dent in the
case, as the Supreme Court noted. The high court in fact reprimanded
the police in fairly strong terms for fabricating the arrest memos and
for keeping people under illegal confinement. In each case, Gilani's
defence team successfully produced counter-evidence. As for the overwhelming
evidence produced against Afzal, al- most nothing was challenged at
the trial court, making the task virtually insurmountable for his defence
in the appeal courts. Looking at this evidence, therefore, the Supreme
Court was obliged to conclude that Afzal was guilty of aiding and abetting
To emphasise, although each
of these have been fully documented (December 13: Terror over Democracy,
2005 and reports by PUDR) the Supreme Court was not seized of the role
of the media in fanning pre-trial hysteria, the notorious character
of the investigating agency, the mindset of the trial judge, and the
role of Afzal's trial lawyer. We have shown earlier (EPW, September
17, 2005) how these factors might have contaminated the evidence against
Afzal and its judicial examination. By design, the limited legal window
through which the court examined the In particular, the court was not
endowed with the task of explaining the attack. Nonetheless, as noted,
when presented with credible arguments by the defence, the court did
take the bold step to set aside the confessions. Since the confessions
carried the only story of the conspiracy to attack the Parliament, the
court's story of the attack was swift and short. What we learn from
the judgment is that five persons with sundry names attacked the Parliament,
killed some people, and died. And Mohammed Afzal aided these attackers.
The wider issues that surround
the case - including the role, if any, of Mohammed Afzal in it - can
then be addressed in forums other than a court of law. A large number
of writers, academicians and lawyers have raised a number of grave issues
concerning the Parliament attack case to which the judgment of the court
provided no answers. Importantly, as we will sample below, many of these
concerns were raised while the court deliberated on the case, and the
concerns continued even after the judgment was delivered. What are these
issues? While the hearing in the court was nearing its end, lawyer Usha
Ramanathan wrote (Frontline, May 6, 2005), "the court, will not,
and is not expected to, concern itself with aspects that are not directly
relevant to the case of the accused before it. So, many questions will
inevitably, and predictably, remain uninvestigated in the court's docket."
One of the questions Ramanathan
asked was: "Was it an act of war? Or was it a terrorist act? Or
perhaps a protest employing extremist methods? We don't know. But, on
the presumption that it was an act of war, the troops were massed along
the border, Indian and Pakistani soldiers glowered at each other for
nearly a year, enormous resources were sunk into aggressive posturing,
soldiers lost their lives, over a hundred children reportedly fell prey
to land mines, and many farmers along this mined, potential battlefield
were left without a livelihood."
Noting that Mohammed Afzal,
the prime accused, was a surrendered militant in regular contact with
the State Task Force (STF) in Kashmir, Ramanathan observed, "a
surrendered militant is no longer a militant but one who has chosen
to return. The surrendered militant is in the uneasy zone where he is
suspect on both sides of the divide. The militants see in him a turncoat.
The security forces and the Special Task Force (STF) hold him in their
thrall, while viewing him constantly with suspicion." Specifically,
"If a person under the watchful eye of the STF could be part of
a conspiracy to wage war against the state, how can anything less than
a public inquiry do? For this is not about the guilt or innocence of
one man, but about how a system works and what it means, to democracy,
sovereignty and the security of the state."
Yet, the "astonishing
fact", Ramanathan suggested, was that "there has never been
a public inquiry into the attack on Parliament: not by a parliamentary
committee, not by the media, not an expanded search by the police, nor
even a commission of inquiry. When we picture the parliamentarians huddled
inside Parliament as the sounds from the battleground outside told them
of their narrow escape, it is difficult to understand why no one, not
in the ruling coalition, not in the opposition, not in the secretariat
of Parliament, thought there should be an immediate and deep-reaching
inquiry." Elsewhere (The Book Review, May 5, 2005), Ramanathan
wrote, "the only inquiry of which the public has knowledge has
been translated into criminal proceedings in the court. The micro- scopic
nature of a trial in court, however, means that it is only the accused
whose conduct will be interrogated and judged."
About the failure of the
media to initiate a deep-reaching inquiry, Gouri Chatterjee wrote (The
Telegraph, June 30, 2005), "the media's unquestioning acceptance
of whatever the police fed them, no, directed them to say, their complicity
in the government's scheme of things are downright embarrassing".
Rajat Roy (Anandabazar Patrika, July 16, 2005) illustrated the complicity
of the media with the police by recounting the event of Afzal's forced
confession before the media. Subhendu Dasgupta (EPW, July 22, 2006)
summed up the complicity as follows: "The truth that the media
presented was incomplete, partial, truncated, engineered and designed,
and the judgment was made on the basis of this truth. The media came
to its judg- ment before the judicial process started. The administrative
truth was passed on to the media; the media took the official truth
and transformed it into 'media truth'." Notice that Dasgupta maintained
this nearly one year after the judgment of the Supreme Court.
Commenting on the entire
episode, Gouri Chatterjee observed that "the greater tragedy is,
we are condemned to repeat all this the next time round too". One
year after the judgment, Sukumar Muralidharan expanded on these themes
(Biblio, September-October 2005). "The December 13 event",
Muralidharan observed, "proved the pivot from which momentous consequences
followed. These involved issues of war and peace, the security and well-being
of the peoples of India and Pakistan, and the posture that national
governments in the two countries would adopt towards the global struggle
being waged between what was 'civilisation' and its supposed antithesis."
Need- less to say, none of these momentous issues can be addressed without
ascertaining the facts surrounding the event. More specifically, "a
well-informed citizenry obviously owes itself the duty of unravelling
the facts behind the attack on a central institution of its democracy.
And an indispensable part of the process of ascertaining facts would
be to establish the motivations that led the Delhi Police into its sordid
saga of fabrication."
After describing Afzal's
predicaments as a surrendered militant, Muralidharan observed, "any
Indian citizen with a basic level of civic involvement would be assailed
by a number of questions if she were to take the statements by Afzal
in their entirety". "Indeed", Muralidharan went on to
observe, "the conclusions that any observer who has not surrendered
his critical faculties to the cult of the nation state would be impelled
to" are "fraught with immensely disturbing consequences for
the functioning of the Indian state and, hence, for the health of Indian
democracy", quoting from a recent book on the topic.
Appeal for Inquiry
Going beyond printed words
in the margins of the media, a group of citizens consisting of writers,
academicians, lawyers, and journalists have publicly appealed for a
parliamentary inquiry into the entire episode. A committee chaired by
Nirmala Deshpande with Mahasweta Devi, Rajni Kothari, Prabhat Patnaik,
Ashish Nandy, Prashant Bhushan, Sumanta Banerjee, Mihir Desai, and others
as members, held a press conference within a week of the judgment by
the Supreme Court. In its press statement the committee noted, "Afzal
has been convicted of conspiracy primarily on the basis of statements
of police witnesses and seizures of materials from him shown by the
police, which went un- rebutted during trial, because Afzal was practically
unrepresented in the trial. Be that as it may, the fact remains that
the court has acquitted three of the four persons charged of conspiracy
and has held that the manner and circumstances in which the confessions
were obtained, makes them unreliable. However, it is only on the basis
of these unreliable confessions that the then government immediately
committed the country to a full-scale war mobilisation against Pakistan
with the possibility that it might have escalated to a nuclear war.
The mobilisation was used by the NDA government for political purposes.
POTA was immediately enacted, and anti-Pakistan as well as communal
feelings were whipped up in the war hysteria which was drummed up taking
advantage of the attack on Parliament." Soon after, the committee
appealed to the members of Parliament in the following words, with supporting
Members of the Committee
as well as reputed human rights organisations have been raising serious
questions on the con- duct of the previous NDA government, especially
the functioning of the investiga- ting agencies, in the Parliament attack
case. In the light of the Supreme Court judgment of August 4, 2005,
we wish to draw your attention to these apprehensions.
(1) The NDA government initiated
a full- scale mobilisation for war against Pakistan, saying that the
terrorists were Pakistanis sponsored by the Pakistan govern- ment. The
war-effort, which was sustained for nearly a year, had very serious
con- sequences. We have mentioned them in our public appeal located
at Appendix 1. The only evidence of terrorist conspiracy originating
from Pakistan is Mohammed Afzal's confessional statement. The Su- preme
Court has held that the confession is unreliable. With the confession
set aside, we do not know who attacked Parliament and what was the conspiracy.
(2) Mohammed Afzal, the only
person found guilty of conspiracy by the Apex Court, is a surrendered
militant, who was not only supposed to report regularly to the Special
Task Force of J and K, but was also under their surveillance. How could
such a person mastermind and execute such a complex conspiracy? How
could a terrorist organisation rely upon such a person as the principal
link for their operation? On whose behest was he acting? Is there some
credibility to Afzal's statement, noted at Appendix 2, that both the
leader of the attack, Mohammed, and that one of the masterminds in Kashmir,
Tariq actually belonged to the Special Task Force? What is the significance
of the press report that 4 terrorists including one Hamza - the same
name as one of the terrorists killed in the Parliament attack and supposedly
identified by Afzal - had been arrested by the Thane police in November
2000 and handed over to the J and K police for further investigation?
The press report is located at Appendix 3. It will be a travesty of
justice to hang Mohammed Afzal without ascertaining answers to these
(3) With the acquittal of
three out of four persons from the charge of conspiracy, it is clear
that the investigating agency tried to frame at least three innocent
persons. The high court had found the agency guilty of producing false
arrest memos, doctoring telephone conversations, and illegal confinement
of people to force them to sign blank papers. It is also clear that
false confessions were extracted by torture.
In the absence of alternative
explanations, it seems that the NDA government was massively fooled
by its own police. The country must learn the truth behind the attacks.
Responsibility must be fixed for those guilty of negligence, concoction
of evidence, and propagation of deliberate falsehood. Above all, those
who almost took the country to war in such a reckless manner must be
made accountable. To that end, the Committee has already issued an appeal
for Parliamentary inquiry. Some press coverage of the appeal is shown
at Appendix 4. There have been other recent appeals for a public inquiry
on the case, shown at Appendix 5. We urge you to institute a Parliamentary
inquiry at least on the following questions:
(1) Who attacked Parliament
and what was the conspiracy?
(2) On what basis did the
NDA government take the country close to a nuclear war?
(3) What was the role of
the State Task Force (J and K) on surrendered militants?
(4) What was the role of
the Special Cell of Delhi Police in conducting the case?
(5) What institutional and
legal changes are required to prevent a government from going to war
unilaterally without the consent of Parliament as in this case?
The political system has
failed to take the steps to answer the grave questions raised at length
by eminent citizens. And the time is running out for initiating any
fruitful inquiry on these questions. From what we can see through the
restricted legal window of the Supreme Court, just six persons are in
view, five attackers and Mohammed Afzal, as noted. Since the attackers
died on the spot, Mohammed Afzal is the only living soul who, according
to the Supreme Court, might know something of what really happened.
Mohammed Afzal has not been heard yet(Nandita Haksar, Indian Express,
September 30, 2006).
(Published earlier in The
Economic and Political Weekly, October 7, 2006)
Share Your Insights