Should Mohammad Afzal Die?

Three judicial pronouncements have been made on the Parliament attack case including the latest Supreme Court judgment. But certain questions are still unanswered: Who attacked Parliament and what was the conspiracy? On what basis did the NDA government take the country close to a nuclear war? What were the roles of the state task force of Jammu and Kashmir and special cell of Delhi police investigating the cases? Given the momentous nature of these questions, for the future of Indian democracy nothing less than a Parliamentary enquiry is necessary to provide the answers.

Nirmalangshu Mukherji

The Supreme Court delivered its judgment on the case relating to the December 13, 2001 attack on Parliament on August 4, 2005. It acquitted S A R Geelani and Afsan Guru from all charges, and reduced the sentence for Shaukat Hussain Guru, absolving him of all charges of conspiracy. However, it upheld the judgment of the high court in sentencing Mohammad Afzal to death for actively participating in the conspiracy to attack Parliament and waging war against the Indian state. Afzal is characterised as a "menace to the society", whose "life should become extinct" to satisfy "the collective conscience of the society."¹

Within a day, the editorial of a respected newspaper – known for its coverage of issues of rights and justice – commented on this judgment. It took a characteristically human view of the verdicts on Geelani, Afsan and Shaukat. For Afzal, however, the paper joined the judges in speaking on behalf of the "collective conscience of the society": "there is no warrant for any special sympathy for Mohammad Afzal whose role as a conspirator in the Parliament attack case – which has been detailed by the prosecution and confirmed by three courts of law – has been established beyond a shadow of doubt."²

With three of the "estates of democracy" surrounding him, Mohammad Afzal has little chance of escaping the hangman. More significantly, as the noose tightens, Afzal will die in silence. Yet, there is the legislature – the first estate. Is there a case for Mohammad Afzal before the forum of the people?

Confession for the State

The judicial proceedings recorded two occasions on which Mohammad Afzal spoke before the law: his confessional statement before the police and his statement under Section 313 of the Criminal Procedure Code. There was also the "disclosure statement" recorded by the police soon after his arrest. But, disclosure statements by themselves are not admissible as evidence.

In his confessional statement, Afzal narrated the entire conspiracy and the operational details of the attack on Parliament. I wish to draw the attention to the following part of the story of conspiracy.³ It begins with Maulana Masood Azhar, the leader of Jaish-e-Mohammad, based in Pakistan, instructing, at the instance of the Inter-Services Intelligence (ISI), one Ghazi Baba, the supreme commander of the outfit in Kashmir, to carry out actions on important institutions of India. Ghazi Baba directed one Tariq Ahmed to arrange for an operation. Tariq got in touch with Mohammad Afzal and motivated him to join the jehad for the liberation of Kashmir. Afzal met Ghazi Baba and the plan was worked out. It was going to be a joint operation of Jaish-e-Mohammad and Lashkar-e-Toiba. Beginning with one Mohammad, Afzal arranged for several militants – Haider, Hamza, Raja and Rana – to bring huge quantities of arms, explosives and a laptop computer to Delhi into pre-arranged hideouts. In Delhi, the team got in touch with Afzal's cousin, Shaukat Hussain Guru, Shaukat's wife Afsan Guru and S A R Geelani, a lecturer of Arabic in Delhi University.

In the beginning, the terrorists kept their options open between the Delhi assembly, UK and US embassies, Parliament and the airport. Reconnaissance was conducted accordingly. However, Ghazi Baba instructed them over satellite telephone to attack Parliament. In a final meeting on the night of December 12, 2001, the militants handed over Rs 10 lakh to Afzal, Shaukat and Geelani for their part in the conspiracy; they also handed over the laptop to be returned to Ghazi Baba.

This story was presented by the police, argued for by the prosecution, propagated repeatedly in full colours by the print and the visual media for the past three and a half years, and ratified by two courts of law. The prosecution's story was transformed into a telefilm by Zee TV. "The film was shown to the then prime minister and then the home minister, and the media recorded their approval of the film", Nandita Haksar reports.⁴ The film was telecast repeatedly before the first judgment on the case was delivered (December 13, p 27 for more).

Apart from Afzal's confessional statement, there was never an iota of independent evidence corroborating the story just sketched (December 13, pp 41-44). Citing "incontrovertible evidence" on the floor of Parliament and holding Pakistan responsible for the attack, the government mounted a massive military offensive that brought India and Pakistan to the brink of war with fingers on the nuclear trigger. Nearly 10,000 crore of rupees were spent and 800 soldiers died in the war effort. Reportedly, over 100 children died and many farmers lost their livelihoods due to heavy mining in the border areas. "After the unfortunate incident," the high court observed, "the clouds of war with our neighbour loomed large for a long period of time," "the nation suffered not only an economic strain, but even the trauma of an imminent war."⁵

The Supreme Court has now set aside Mohammad Afzal's confessional statement in the following words: "All these lapses and violations of procedural safeguards guaranteed in the statute itself impel us to hold that it is not safe to act on the alleged confessional statement of Afzal and place reliance on this item of evidence on which the prosecution places heavy reliance" (SCJ, pp 158-59).

With the confession set aside, the story of conspiracy linking ISI, Masood Azhar, Jaish-e-Mohammad, Lashkar-e-Toiba, Ghazi Baba, Tariq, and the rest, disappears from the judgment of the court. All we learn from the judgment is that five heavily armed men with sundry names attacked Indian Parliament and died, and that Mohammad Afzal participated in the conspiracy (SCJ, p 193). Period. In the two weeks since this judgment, the entire media has failed to mention this enormous fact.

The court's rejection of the confession has two parts. In the first, it mentioned a series of objections raised by the defence which the court found "plausible and persuasive" (SCJ , p 149). However, the court held that "it is not necessary to rest our conclusion on these probabilities," since, in the second part, the court found some direct reasons to set aside the confession. The investigating agency, namely, the special cell of the Delhi police, violated even the minimal safeguards sanctioned under the otherwise draconian POTA. These included the denial of legal assistance to the accused after POTA was introduced in the case, the failure to inform any relative,⁶ taking the accused back to the police custody after the confession, and the failure to give the confessor sufficient time to reflect before the confession (SCJ, pp 150-58). According to the court, these violations themselves have a "bearing on the voluntariness of confession" (ibid, p 158).

Why were all these basic safeguards systematically violated? For an answer, it is worth discussing the "probabilities" which the court found "plausible and persuasive"; they lead us far beyond the restricted legal window through which the court looked at the Parliament attack case. For brevity, we discuss just the issue of the timing of the confession (See December 13, pp 86-90, for more).

The confessions were recorded on December 21, 2001, after POTO was introduced in the case on December 19. As noted, Afzal and Shaukat allegedly made disclosure statements immediately after their arrest on December 15, 2001. Displaying incredible loquacity, both Afzal and Shaukat had apparently poured out everything they knew about the conspiracy. Following the disclosures, the police had already gathered most of the alleged facts of the case before December 19. The confessions themselves did not contain anything that was not already available to the police on independent investigation based on the earlier disclosures (SCJ, p 148). Why then were the confessions, allowed by POTO, needed?

More importantly, "there was no perceptible reason why the accused should not have been produced before a judicial magistrate for recording a confession under the provision of Cr P C" (ibid, p 148; also, p 59). According to the court, the defence held that the accused were "not prepared to make the confession in a court and, therefore, the investigating authorities found the ingenuity of adding POTA offences at that stage so as to get the confession recorded by a police officer according to the wishes of the investigators" (ibid). As noted, the court found this argument "plausible and persuasive".

Until alternative explanations are offered, the following picture emerges. The government wanted to use the 'window of opportunity' offered by the attack on Parliament to go to war against Pakistan (December 13, pp 5-13). After the investigations were virtually over within days after the attack, there was no evidence to link the attack with Pakistan-sponsored terrorism. Hence, POTO was belatedly introduced on the December 19; soon after, the government mobilised its troops. Afzal was made to confess before the media on the December 20 so as to lend credibility to the official confession to follow on December 21. The eminent lawyer Shanti Bhusan suggested that "the police failed to crack the case" as "all the five militants died in the attack". So the police "framed people" in order "to create a conspiracy case" for the government to take the country "to the brink of a nuclear war".⁷

Once POTO was introduced, Rajbir Singh, an assistant commissioner of police in the special cell was made the investigating officer (IO) of the case: "Singh was already under a cloud when the home ministry, then under L K Advani, appointed him to head the investigation into the attack on the Indian Parliament".⁸ The appointment was technically correct, yet one wonders if it was proper to appoint such a junior officer as IO in this immensely complex and sensitive case.⁹ The modus operandi of securing the confession throws light on the issue. With ACP Rajbir Singh as IO, the confession was obtained by the DCP Ashok Chand in the special cell itself. It is not surprising that legal assistance was not offered, no relatives were informed, and that Afzal was taken back to police custody on some pretext. Things stayed within the special cell, no chances were taken. Mohammad Afzal was a pawn in the designs of the state.

Trial by Design

The introduction of POTO also allowed the trial to be held in the designated special court for POTA. The Indian law ministry appointed Shiv Narayan Dhingra as a special judge: "by the 1990s, he was handling cases of terrorism and had earned the name the hanging judge".¹⁰ The trial began in June 2002 in an atmosphere in which the trauma of an imminent war and the smoke from the pogroms in Gujarat hung over the nation, the country was baying for the blood of the accused after a massive propaganda by the police and the media,¹¹ and POTA had become the law of the land.

Very few lawyers were willing to oblige: most "did not want to be associated with the Parliament attack case".¹² Moreover, the special judge ordered a 'fast-track' trial in this immensely complex case. The trial lasted just over five months in which the prosecution presented 80 witnesses. It is hard to see how a fair trial could be accomplished under these conditions.

The defence of Mohammad Afzal, the key figure in the state-sponsored story of conspiracy, suffered the most. With great difficulty, Geelani's defence managed to produce some witnesses; Afzal had none. He had no legal defence in the period between his arrest on December 15, 2001 and the filing of the chargesheet on May 14, 2005; in other words, no counsel had studied the complex case. When he "declined to engage a counsel on his own," the special judge appointed the noted criminal lawyer Seema Gulati, who took charge on May 17 along with her junior Neeraj Bansal (SCJ, p 139).

On June 5, all the defence lawyers agreed not to dispute postmortem reports, MLCs, and documents related to recovery of guns and explosive substances at the spot resulting in "dropping of considerable number of witnesses for the prosecution". The court did not dispute the contention of the defence counsel at the Supreme Court that Gulati "took no instructions from Afzal or discussed the case with him". Taking a strictly legalistic view, the court merely held that the "counsel had excercised her discretion reasonably. The appellant accused did not object to this course adopted by the amicus throughout the trial" (SCJ, p 140). On July 1, Gulati "filed an application praying for her discharge from the case citing a curious reason that she had been engaged by another accused Gilani" (ibid, p 140).

On July 2, Gulati's junior Neeraj Bansal was appointed amicus. Afzal protested against this nomination on July 8 and submitted a list of four senior advocates. Since none was willing to take up the case, Bansal continued as amicus for the rest of the trial. "In capital cases", Ram Jethmalani observed, "particularly those that arouse public prejudice and anger against the accused making it difficult for them to arrange for their own defence, it was the duty of the court to provide adequate defence at state expense". In response, taking a strictly legalistic view, the Supreme Court held that "taking an overall view of the assistance given by the court and the performance of the counsel, it cannot be said that the accused was denied the facility of effective defence" (ibid pp 141-42).

The amicus, Neeraj Bansal, did not even pay a visit to his client: "his presence and participation have caused confusion and prejudice vitiating the trial," Jethmalani observed.¹³ Afzal's wife Tabassum says, "The court appointed a lawyer who never took instructions from Afzal, or cross- examined the prosecution witnesses. That lawyer was communal and showed his hatred for my husband".¹⁴ The Supreme Court held that the "criticism against the counsel seems to be an afterthought raised at the appellate stage" (SCJ, p 139). Where else could it be raised and who could have raised it at the trial stage?

These concerns assume immense significance now that the Supreme Court has sentenced Mohammad Afzal to death on the sole basis of circumstantial evidence admitted in the trial. We must also note that this body of evidence was presented by an investigating agency widely known for false arrests and fake encounters.¹⁵ In the Parliament case itself it is now clear that the special cell tried to frame at least three innocent persons. Earlier, the high court had mentioned the production of false arrest memos, doctoring of telephone conversations and illegal confinement of people to force them to sign blank papers. As we saw, it is evident that false confessions were extracted by force.

This is not the place to study in detail the Supreme Court's handling of the circumstantial evidence against Mohammad Afzal. We will cite just two pieces of evidence to illustrate the general problem.

(1) The court held that Afzal knew the deceased terrorists since he identified them. Afzal also admitted the same in his confession. With the confession set aside, the sole evidence against Afzal is that he identified them in the morgue. The evidence has two parts: the identification memo prepared by the police (PW76), and Afzal's signature against the column 'identified by' in the postmortem report. As for the identification memo, the court relied on it because "there was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo" (SCJ, p 161); in other words, Neeraj Bansal did not object. As for the signatures, the defence counsels decided not to dispute the postmortem reports, as noted. It did not materially affect the other accused, but Afzal is likely to pay with his life for this decision taken without his consent. In his statement u/s 313 Cr P C, Afzal said: "I had not identified any terrorist. Police told me the names of terrorists and forced me to identify" (December 13, p 165).

(2) It is a crucial part of the prosecution's story that the police explain how they reached Mohammad Afzal beginning with the site of attack; otherwise, the arrests would seem to be pre-planned rather than based on a chain of leading evidence.¹⁶ The prosecution claimed that the police finally reached Afzal through a sequence of arrests beginning with Geelani, whom the police could trace first because he held a mobile phone registered with the telecom company Airtel. But the letter from Airtel furnishing the call records and Geelani's residential address was dated December 17, 2001; all the accused had been arrested by December 15. How could the police arrest Geelani two days before it got the phone records that "led" them to him? This letter poses other serious problems for the prosecution's case regarding the actual date on which POTO was introduced in the case (December 13, pp 74-86). However, the court did not "consider it necessary to delve further" into this letter since "no question was put to PW35 – the security manager of Airtel" (SCJ, p 30). Further, "none of the witnesses pertaining to the FIR were cross-examined" (SCJ, p 31).

Whatever be the legal merit of the court's judgment on Afzal, the question arises as to whether there is a moral warrant for capital punishment on the basis of a trial like this.

A Surrendered Militant

The question of moral warrant arises from another more insidious direction. Given the involuntary nature of the confession, it is pertinent to reflect on the fact that Afzal agreed to sign the document at all. Was Afzal a free agent during those early turbulent days right after the attack when he was in police custody before and after the making of the confession? Could he afford to refuse the recording of his confession at that stage when he had already done the rounds with the police, allegedly incriminating himself in everything that the police wanted?

These queries are compounded by the fact, as repeatedly noted in all the judgments, that Afzal is a surrendered militant. Afzal was not only supposed to report regularly to the security forces, but was also under their surveillance. How could such a person mastermind and execute such a complex conspiracy? And how could a terrorist organisation rely upon such a person as the principal link for their operation? Did he enter into some arrangement with the security forces to buy his survival? Some dark answers to these questions begin to form when we look at Afzal's statement 313.

The statement 313, unlike confession under POTA, is made by an accused before the court rather than before a police officer; also, this statement is made when an accused is in judicial custody, not in police custody. The special judge of the POTA court recorded the fact that "a surrendered terrorist has to mark his attendance with regular intervals at the STF, J&K" (para 222). "STF, J&K" stands for State Task Force, Jammu and Kashmir, a shadowy counter-insurgency outfit of the state. To our knowledge, this fact is stated only in Afzal's statement u/s 313 Cr P C. With this citation, therefore, the Special Court judgment lend credibility to the statement. Furthermore, there are manifest instances of honesty and truthfulness in Afzal's statement 313. For example, Afzal did not shy away from admitting the possibly incriminating fact that he brought Mohammad from Kashmir and that he accompanied Mohammad when the latter purchased a second-hand ambassador car. When his lawyer attempted to deny this fact during the trial, Afzal intervened to insist that he indeed accompanied Mohammad (SCJ, p 182).

Pursuing the relevant paragraph of this statement then, we learn about the circumstances of Afzal's surrender to BSF in 1993 in detail. Afzal states: he was frequently asked by the STF to work for them; he often paid large sums of money to the STF to avoid and/or escape detention; he was detained as late as in 2000; he was asked to become a special police officer, which is an euphemism for 'police informer'; he met one Tariq in the STF camp; this Tariq was already working for the STF and he wanted Afzal to join the force as well; Afzal was introduced to one Mohammad by Tariq also in the STF camp; Tariq persuaded him to take Mohammad to Delhi from where Mohammad was planning to go abroad (December13, pp 90-92).

A number of disturbing consequences follow. First, Afzal was in close touch with the security agencies throughout the period 1993 to at least 2000. Second, three of the persons allegedly involved in the attack – Tariq, Afzal, Mohammad: the mastermind, the link, the leader of the attack – originated from the STF camp itself. In addition, we now know of a press report from Thane that four terrorists including one 'Hamza' – the same name as one of the terrorists killed in the Parliament attack – had been arrested by the Thane police in November 2000, and handed over to the J and K police for further investigation.¹⁷

Grave, unanswered questions surround the Parliament attack case even after three judicial pronouncements. 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?

It will be a travesty of justice to hang Mohammad Afzal without ascertaining answers to these questions. Given the momentous nature of these questions, for the future of Indian democracy nothing less than a Parliamentary inquiry is needed to address them (December 13, pp 96-103).

Nirmalangshu Mukherji

Email: somanshu@bol.net.in

Notes

1 Judgment of the Supreme Court of India (henceforth, SCJ), August 4, 2005, pp 203-04.

2 The Hindu, edit page, August 6, 2005.

3 For more details, see my December 13: Terror over Democracy (henceforth, December13), Bibliophile South Asia, New Delhi, 2005, pp 38-41.

4 Nandita Haksar, 'Tried by the Media: The S A R Geelani Trial', Crisis/Media: Sarai Reader 04, Centre for Studies in Developing Societies, Delhi, February 2004, p 161.

5 Judgment of the high court, Murder Reference 1 of 2003, October 29, 2003, para 448.

6 The high court had observed earlier that Afzal's arrest memo was in fact signed by Geelani's brother, Bismillah, while Bismillah was himself in 'illegal confinement' and he was forced to 'sign papers' (judgment of the high court, para 251).

7 Tehelka: The People's Paper, October 16, 2004, p 21.

8 Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.

9 In fact, 'It is indeed surprising that. the investigations were not handed over to the premier investigating agency, the CBI, but to an agency whose capacities are so much in doubt', Trial of Errors: A Critique of the POTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights, Delhi, February 2003.

10 Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.

11 See my 'The Media and December 13', Znet South Asia, September 30, 2004.

12 Nandita Haksar and K Sanjay Singh, 'December 13', Seminar 521, January 2003.

13 Written submissions on behalf of S A R Geelani, Murder Reference 1 of 2003, presented by Ram Jethmalani, senior advocate.

14 'A Wife's Appeal for Justice', Kashmir Times, October 21, 2004.

15 For a recent review of the functioning of the special cell, see my 'A Very Special Police', Znet, June 29, 2005.

16 See December 13, pp 70-80 for a detailed discussion of the murky business of arrest memos.

17 'What's In a Name?', Thaneplus, The Times of India, Pune edition, December 26, 2001.

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