Appearing in EPW 10 October 2006

Nirmalangshu Mukherji
Department of Philosophy
University of Delhi
Delhi-110007

A Sessions Court in Delhi has announced that Mohammad Afzal, sentenced to death by the Supreme Court of India on 4 August 2005, is to be hanged on 20 October 2006. While the judicial procedure is nearing its end in the Parliament attack case, have we understood 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, perhaps forever?

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 examined 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 authorized investigating agency, namely, the Special Cell of 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 successfully, 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 counterevidence. As for the overwhelming evidence produced against Afzal, almost 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 oblidged to conclude that Afzal was guilty of aiding and abetting the attackers.

To emphasize, 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 elsewhere (Economic and Political Weekly, 17 September 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 case did not allow any other light to enter. 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 Mohd. Afzal aided these attackers. Period.

The wider issues that surround the case – including the role, if any, of Mohd. Afzal in it – can then be addressed in forums other than a court of law. A large number of distinguished 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, the noted lawyer Usha Ramanathan wrote (Frontline, 6 May 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 Mohd. 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, 5 May 2005), Ramanathan wrote, ‘the only inquiry of which the public has knowledge has been translated into criminal proceedings in the court. The microscopic 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, noted writer Gouri Chatterjee wrote (The Telegraph, 30 June 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.’ Senior journalist Rajat Roy (Anandabazar Patrika, 16 July 2005) illustrated the complicity of the media with the police by recounting the event of Afzal’s forced confession before the media. Noted author Subhendu Dasgupta (Economic and Political Weekly, 22 July 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 judgment 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, Chatterjee observed that ‘the greater tragedy is, we are condemned to repeat all this the next time round too.’

One year after the judgment, the senior journalist 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.’ Needless 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 observed, ‘the conclusions that any observer who has not surrendered his critical faculties to the cult of the nation-state would be impelled to, would be "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.

Going beyond printed words in the margins of the media, a group of citizens consisting of eminent 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 Bannerjee, 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 unrebutted during trial, because Afzal was practically unrepresented in the trial. Be that as it may, the fact remains that the court has acquitted 3 of the 4 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 documentation:

"Members of the Committee as well as reputed human rights organizations have been raising serious questions on the conduct of the previous NDA government, especially the functioning of the investigating agencies, in the Parliament attack case. In the light of the Supreme Court judgment of 4 August, 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 Government. The war-effort, which was sustained for nearly a year, had very serious consequences. We have mentioned them in our public appeal located at Appendix 1. The only evidence of terrorist conspiracy originating from Pakistan is Mohammad Afzal’s confessional statement. The Supreme 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) Mohammad 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&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, Mohammad, 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&K police for further investigation? The press report is located at Appendix 3. It will be a travesty of justice to hang Mohammad Afzal without ascertaining answers to these questions.

(3) With the acquittal of 3 out of 4 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&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 Mohd. Afzal., as noted. Since the attackers died on the spot, Mohd. Afzal is the only living soul who, according to the Supreme Court, might know something of what really happened. Mohd. Afzal has not been heard yet (Nandita Haksar, Indian Express, 30 September 2006).

Economic and Political Weekly, 10^th October, 2006.

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