On 13 December 2001 at about 11.30 A.M. five armed persons entered the Parliament complex in New Delhi in a white Ambassador car when the Parliament was in session. On being challenged near the motorcade of the Vice-President of India, they opened fire. In the exchange of gunfire that ensued, all five persons died on the spot before they could enter inside the Parliament building. Nine other people, including some members of the security forces, died in the attack while sixteen persons from the security forces were injured. A much larger catastrophe was barely averted. In terms of the scale of the attack and its symbolic significance, it was perhaps the most daring terrorist attack on Indian soil in recent years.
The attack led to the adjournment of the winter session of the parliament sine die; the nation had to spend over rupees one hundred crores to reinforce the security of the parliament complex. 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. Prior to the attack, the central government failed to get the draconian Prevention of Terrorism Act (POTA) passed in the parliament despite repeated efforts. After the attack, the Prevention of Terrorism Ordinance (POTO) was duly converted to an Act in a joint session of the parliament. As Noam Chomsky put it in the context of 9/11, ‘The authentic threat of terrorism,’ was sought to be exploited ‘as a window of opportunity for intolerable actions.’1
December 13 was India’s 9/11 on other counts as well. Both led to a sense of helpless fear and to heightened prejudice against the Muslim community. In the Indian case, these factors, coupled with the enactment of POTA and the prospect of an imminent war with Pakistan, plunged the nation virtually into a state of emergency. Arguably, this enabled the government to divert the attention of the nation away from a series of scams and electoral defeats.2 As witnessed in the Gujarat elections that followed, the fear and the prejudice already generated by 9/11 grew rapidly after the parliament attack and drove people to huddle under state power, as elsewhere in the world.3 Ironically then, even though the terrorists failed to destroy the parliament building itself, their action left a gaping hole in Indian democracy.
Given the grave outcome, it is natural to ask: who attacked the Parliament? What exactly was the conspiracy? How could the attackers nearly succeed in blowing up the building itself? What are the domestic and international ramifications of this event? What steps have been taken to bring the real perpetrators to justice? Unfortunately, there are no direct official answers to these questions since the government never ordered a public inquiry or tabled a white paper on the topic.4
Nevertheless, the answers may be indirectly obtained as follows. The attack on the parliament appears to be a singular exception to terrorist acts, which are usually shrouded in mystery. The Delhi police claimed to have shot down all the terrorists, numbering five, on the spot. The terrorists not only did not blow themselves up, they left behind a thick trail of unused arms and ammunition, mobile phones supposedly used during the attack, addresses, phone numbers, and much else. Within days, the Delhi police traced and arrested four alleged local conspirators: Mohd. Afzal, Shaukat Hussain Guru, Afzan Guru, and S. A. R. Geelani. Afzal allegedly identified the dead terrorists, the hideouts, and the shops from where chemicals, mixer, the attack vehicle etc. were purchased. Finally, the police pieced together the entire story from the confessions made by Afzal and Shaukat. With the help of an obliging media, the Delhi police announced to the nation within a week that the case has been solved.
The case went on trial in 2002 in the Designated Special Court for POTA in Delhi and a judgment upholding the prosecution’s case was delivered within months.5 The judgment was sent to the High Court which also delivered its judgment on October 29 last year.6 As per law, the Courts were not formally assigned the task of explaining the event; their only task was to decide whether the prosecution’s case against the accused was valid. However, the four accused were not charged for taking offensive part in the attack; they were charged only with conspiring, planning and abetting the attack. Therefore, by proving the role of the accused in the conspiracy, the prosecution has deemed to have shown, at least in a broad outline, which terrorist acts and waging of war were planned and executed by whom. In other words, the proof of guilt in this case is also an explanation of the event. By parity of reason, if there are doubts about the proof, the explanation of the event remains incomplete to that extent.
The court judgments and the related material are the only official documents available to citizens who are anxious to learn the truth about the gruesome attack on the Indian Parliament. In the absence of any other official paper, we are thus compelled to enter into an unfamiliar territory. We have no opinion on questions of law, admissibility of evidence and the propriety of verdicts; needless to say, we do not judge the guilt or the innocence of the accused. As the angle and style of presentation of this study will show, our only concern is to examine whether the legal pronouncements contain a plausible explanation of the attack on Indian democracy.
Moreover, we are aware that the Parliament attack case currently rests with the Hon’ble Supreme Court of India. We have no intention or interest in interfering with the judicial process; if anything, our intention is to co-operate with it. As emphasised, we will be exploring aspects (viz., the aspects of truth and coherence) of the events leading up to the attack on the Parliament that do not even directly fall under the jurisdiction of the courts; they fall under the jurisdiction of an inquiry commission that was never constituted. In that sense, we hope that our effort will be seen as supplementing the judicial process, rather than confronting it.
As we will see, the story presented by the prosecution has too many grey areas to be credible. In fact, most of the doubts arise from a careful study of the High Court judgment itself. This is not to deny the possibility that it was indeed a genuine terrorist attack, perhaps masterminded by some terrorist organization across the border. Our only claim is that the story that appears in the court documents does not enable us to draw any inference either way.
The Prosecution’s Story
According to the prosecution, the conspiracy begins with Maulana Masood Azar, the leader of Jaish-e-Mohammad based in Pakistan, instructing one Ghazi Baba, the Supreme Commander of the outfit in Kashmir, to carry out actions on important institutions of the Indian nation. To that end, Ghazi Baba directed one Tariq to arrange for an operation. Tariq got in touch with Mohd. Afzal and motivated him to join the Jehad for liberation of Kashmir. Subsequently, Afzal met Ghazi Baba and the plan was worked out. Beginning with one Mohammad Haider, Afzal arranged for several militants to bring huge quantities of arms and explosives to Delhi in pre-arranged hideouts. In Delhi, the team got in touch with Afzal’s cousin Shaukat Hussain Guru, Shaukat’s wife Afzan Guru and S. A. R. Gilani, a lecturer of Arabic in Delhi University.
Once the details of the attack were firmed up, Afzal helped the militants buy the required chemicals and a Sujata mixer-grinder for making explosives. He was also actively involved in the purchases of a white ambassador car, a magnetic red light used by VIPs, and a motorcycle for reconnaissance. The explosives were duly made in the hideouts and the car was fitted with some of them. In a final meeting on the night of 12 December 2001, the militants handed over Rs. 10 lacs to the accused for their part in the conspiracy; they also handed over a laptop to be returned to Ghazi Baba. The militants started off in the car at about ten in the morning of December 13; they all died in the shootout that followed. Just before and during the attack, the militants got in touch with Afzal over mobile phones to instruct him to watch TV to find out the location of important politicians inside the parliament. Afzal failed to do so as he was in the Azadpur market where he subsequently met Shaukat. Together they started off for Srinagar where the police picked them up on 15 December, 2001 along with the laptop and Rs. 10 lacs.
The police could trace them in Srinagar because, once the attack was over, the police found mobile phones and slips of paper with phone numbers written on them. From some of the phone numbers, they first tracked down Gilani on 15 December, 2001 since he held a regular mobile connection. They also tapped another phone which turned out to be Afzan’s, as Gilani informed the police. By arresting Afzan on the same day after Gilani pointed out her house, the police learned the whereabouts of Afzal and Shaukat. Once they were brought back to Delhi, they made disclosure statements which led to the hideouts and the seizure of material as listed above. Also, Afzal identified each of the five dead militants lying in the morgue. Finally, Afzal and Shaukat made detailed confessions on 21 December 2001 after sections of POTA were introduced into the case on 19 December 2001. From these confessions, the police got the picture as summarised above. The seizure of a sticker with ‘we hate India’ write-up, mention of huge sums of hawala money in Afzal’s confession, Shaukat’s admiration for Osama Bin Laden mentioned in his confession, and the e-mail address of Preity Zinta, the popular Bollywood actress, added telling touches to the picture.
On the basis of this story, the Sessions Court awarded death sentences to Mohd. Afzal, Shaukat Hussain Guru and S. A. R. Gilani, while Ms. Afzan Guru was given rigorous imprisonment for five years.
A preliminary problem with the story is that, even if we take the individual pieces of the evidence offered to support it to be valid, the cumulative effect of some of the evidence looks incredible. Consider just one example among many. Afzal and Shaukat were found guilty of conspiring in a terrorist act and waging a war of horrendous proportions. Now, according to the police, they behaved after the attack as follows.
Afzal and Shaukat drove out of Delhi in an easily identifiable vehicle, namely, a truck registered in the name of Shaukat’s wife, to reach Kashmir via the difficult mountain roads filled with the slush and snow of winter. Were these plausible choices of vehicle and immediate destination for terrorists escaping from such a high-profile crime? Since the news was immediately on TV, Afzal and Shaukat knew that the attack had failed and the terrorists had been found intact and dead. So, there was every likelihood for the police to recover the mobiles, trace the numbers and post surveillance. Yet, according to transcripts of phone-conversations produced by the police, Shaukat called his wife 36 hours after the attack to tell her that he had reached Srinagar Mandi. The transcripts suggest that Afzan tried to warn her husband. Even after being warned by Afzan, they did not flee but stayed put in the Mandi. In the morning, they casually drove out of the Mandi in the same truck with the laptop and the huge sum of money on display, and proceeded onwards to meet Ghazi Baba when they were picked up near a police station.
How can these parts of the evidence be valid and the story they generate so incredible at the same time? Moreover, if these parts of the total body of evidence make the narrative incredible, why should the rest of the parts of the evidence be viewed as credible? Before we reflect on some of the pieces of evidence in pursuit of the concern just raised, we emphasise that these concerns about credibility do not fall under the jurisdiction of the courts; yet, concerns like these are immensely significant for reaching a plausible explanation of the event.
Acquittal of Gilani
On 29 October, 2003, the Indian judicial system added a feather to its cap when the Hon’ble High Court acquitted one of the accused, namely Mr. S. A. R. Gilani, of all charges even though the Sessions Court had found him guilty on eleven counts, and had awarded him two death sentences among other punishments. The prosecution produced two crucial pieces of evidence, among others, to nail Gilani. One of them concerned some telephonic conversation between Gilani and the other accused during the presumed period of conspiracy. It is important to note that, despite repeated requests from the defence, the transcripts of these conversations were never produced; the prosecution just presented a record of phone-calls. Gilani never denied his acquaintance with Afzal and Shaukat since they all came from the Baramullah district of Kashmir and were fellow students at Delhi University.
Further, the period under consideration was also the period of Ramzan when muslims get in touch with each other to plan religious programmes. The judges observed that mere acquaintance, even during this period, does not prove complicity in the conspiracy (High Court Judgment, henceforth HCJ, para 405). In fact, the Hon’ble judges did not think of this as an evidence at all. With respect to the ‘only piece of evidence’ against Gilani, namely, a telephonic conversation with his brother on 14 December 2001, the Hon’ble judges contended that ‘this circumstance… do not even remotely, far less definitely and unerringly, point towards the guilt of the accused’ (HCJ, para 412).
It is important to recall that according to the prosecution and the obliging media, Gilani was thought to be the local mastermind, the intellectual leader of the conspiracy. With his outright acquittal, not on technical grounds, but on sheer lack of evidence, a big hole appears in the prosecution’s case in so far as Gilani’s role in the conspiracy is concerned.
The Arrest Memos
The trial of Gilani brought out even more troublesome aspects of the handling of this case by the investigating agency.7 The Hon’ble judges of the High Court themselves noted that ‘a very disturbing feature pertaining to the arrest of the accused persons has been noted by us’ (HCJ, para 250, 255). They observed that ‘the prosecution stands discredited qua the time of arrest of accused S. A. R. Gilani and accused Afzan Guru’ (HCJ, para 251). The issue is this. According to the prosecution, Gilani was arrested first on 15 December 2001 at about 10 A.M., Afzan Guru was subsequently arrested at about 10.45 A.M., and Afzal and Shaukat were arrested at Srinagar at 11.30 A.M. The defence produced argument and evidence, to which the judges agreed, to show that Gilani and Afzan Guru were in fact arrested a day before.
Afzal and Shaukat also denied the prosecution’s story of their arrests in their statements recorded u/s 313 of Cr.P.C. According to Afzal, he was arrested alone at a bus stop in Srinagar; Shaukat claimed that he was arrested near his house on the evening of 14 December 2001. It is important to note that this statement, 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. We return to this statement and the confessions.
Given the critical observation of the High Court, the prosecution’s story of the entire sequence of events leading up to the alleged disclosures becomes questionable. It is natural to ask: why did the police fabricate this crucial piece of evidence? The sequence of arrests described by the police begins with Gilani and led to the arrests of Afzan, Shaukat and Afzal in that order. This gave a plausible story of how the police reached Afzal, the central character in the conspiracy theory offered by the police. If the story is false, the role of Afzal in the conspiracy becomes an enigma.
As noted, the fabrication of the arrest memos for Gilani and Afzan raises doubts about the police account of the arrests of Afzal and Shaukat as well. If the police account of these arrests is false, then doubts arise as to the evidence of the laptop, Rs. 10 lacs, and the mobile phone allegedly recovered from them, since, according to the police, the circumstance of these seizures coincides with the circumstance of these arrests. These doubts are compounded by the fact that (a) doubts remain as to whether the laptop computer was tampered with,8 and (b) the SIM card of the mobile phone allegedly belonging to Afzal was never found.9 In turn, the evidence regarding phone calls made from and received in this instrument, especially to and from the terrorists, stands discredited. The suspicion extends to Shaukat’s mobile instrument, allegedly recovered from Afzan during her arrest.
A Surrendered Militant
Consider the credibility of the confessions. As noted, Afzal’s confession enabled the police not only to nail him down, but also to fill all the blanks of an otherwise incomplete story; Shaukat’s confession is essentially contained in Afzal’s confession (HCJ, para 368). In his confession, Afzal told a full story of how he got acquainted with the terrorists, his meetings with Ghazi Baba and Tariq, his determination to help the cause of Jehad, his knowledge of what the terrorists were up to, the guidance from across the border, etc. These aspects of the confession, not proved by any independent evidence, complete the chain of evidence for the prosecution.
It is important to note that the charges under POTA (then POTO) were introduced only on 19 December 2001 (that is, six days after the event), and the confessions as per POTA were recorded on 21 December 2001. The police had already gathered most of the alleged material evidence, as detailed above, before these dates on independent investigation based on the earlier disclosures. The confessions themselves did not lead to any further material disclosure that was not already available to the police.
Why then were the confessions needed? Could it be that the confessions provided the necessary link to complete the chain of evidence which was otherwise lacking from independent evidence alone? In fact, could it be that the confession was the only method available to the police to lend credibility to what was claimed to be independent evidence? In any case, there are several reasons for raising doubts about the credibility of Afzal’s confession.
The High Court judges noted a palpable discrepancy in the confession. The day before the confession, Afzal had said, in full view of the media, that Gilani was not a party to the conspiracy (HCJ, para 113). Yet, in his confession recorded the next day, Afzal held Gilani responsible. From this the defence justly inferred that the confession was made under duress. 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, or to retract from it, at that stage when he had already done the rounds with the police allegedly identifying everything that the police wanted?
These queries are compounded by the fact, as repeatedly noted in the judgment, that Afzal is a surrendered militant (e.g., HCJ, para 368); this fact is recorded in the charge-sheet. A surrendered militant, especially in the context of terrorism in Kashmir, is a person who is likely to be compelled to do things against his will. At the very least, the confession of such a person ought to be viewed in a light different from that applicable to a ‘normally’ accused person.
The location of statements concerning Afzal’s militant past is most interesting. Both the Sessions and High Court judgments record the fact that Afzal is a surrendered militant. Now this statement appears in Afzal’s confession as well as in his statement u/s 313 Cr. P.C. However, the Sessions Court judgment also records the fact that ‘a surrendered terrorist has to mark his attendance with regular intervals at the State Task Force (STF), J&K’ (Sessions Court Judgment, para 222). To our knowledge, this fact is stated only in Afzal’s statement u/s 313 Cr. P.C. In the same para, the judgment also cites this statement to record the fact that Afzal called Shaukat from Kashmir to hire a room. With these citations, therefore, the Sessions Court judgment lends credibility to the statement u/s 313 Cr.P.C.
Pursuing the relevant paragraph of this statement then, we learn about the circumstances of Afzal’s surrender in 1993. Afzal states that (a) he was frequently asked by the STF to work for them, (b) he often paid large sums of money to the STF to avoid and/or escape detention; he was detained as late as in 2000, (c) he was asked to become a Special Police Officer, (d) he met one Tariq in the STF camp, (e) this Tariq was already working for the STF and he wanted Afzal to join the force as well, (f) Afzal was introduced to one Mohammad by Tariq also in the STF camp, (g) Tariq persuaded him to take Mohammad to Delhi from where Mohammad was planning to go abroad. Note that in his confession, Afzal admitted to bringing one of the terrorists, Mohammad, to Delhi from Srinagar.
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 (Tariq, Afzal, Mohammad: the mastermind, the link, the attacker) allegedly involved in the attack originated from the STF camp itself. Third, if the statement u/s 313 is true, the confession is false except for those few claims that occur in the statement as well.
In fact, in the rest of his statement, Afzal denied every aspect of his involvement in the conspiracy to which he had allegedly confessed earlier. For example, he stated that ‘I had not identified any terrorist. Police told me the names of terrorists and forced me to identify’. If Afzal is telling the truth, either the names of the terrorists announced to the nation are fictitious or the police knew the terrorists. Needlessly to say, Afzal also stated that the police made him sign a pre-written disclosure and confession; he also gave graphic details of the illegal procedure under which these were obtained.
Let us recount again what the nation has been told exclusively in Afzal’s voice: the names of five unidentified dead persons kept in the morgue, that they were Pak nationals, that they were members of a certain terrorist organization, that they came to Delhi for a fidayeen attack under the command of one Ghazi Baba, that the plan was supervised by one public offender Tariq, that the five terrorists brought the huge cache of arms and ammunition for the said purpose. All this only because Afzal says so in his confession. As noted, Afzal denied everything in his statement u/s 313 Cr.P.C.
Trial By Media
As noted, the Hon’ble judges also noted the ‘disturbing feature’ of trial by the media in which Afzal was ‘brazenly paraded before the press’ (HCJ, para 139). During the parade, Afzal confessed to his active participation in the conspiracy, but exonerated Gilani from any involvement. The whole thing was recorded on videotape. In full view of the assembled press, the investigating officer ACP Rajbir Singh castigated Afzal for absolving Gilani. Next day, as noted, Afzal implicated Gilani in the conspiracy. Why did the police take this totally illegal route? Was there an attempt by the police, led by ACP Rajbir Singh, to influence the prosecution witnesses?
In this connection, it is important to recall the mass hysteria that ensued after the attack on the parliament. The role of the print-media in fomenting this hysteria is well documented by now, as noted. Moreover, the Zee TV repeatedly broadcast a programme in which the prosecution’s version of the case was virtually presented as established.
India was nearly at war with Pakistan and POTA became the law of the land. Soon after the attack, the psyche of the nation was engulfed by the pogrom of muslims in Gujarat.
Given this prejudicial atmosphere, would it have been possible for hapless landlords and petty shopkeepers to withstand pressures, if any, brought against them by the police? If you are a landlord and you are told that terrorists had been hiding in your premises, what options do you have except obey orders? If you are a petty shopkeeper selling items such as ammonium nitrate and aluminum powder to all and sundry, perhaps without proper trade documents, can you refuse to testify falsely if you are told that you may be charged with supplying incriminating material to the terrorists? How difficult would it be for the police to fabricate each of these links in the story? There is growing evidence that investigating agencies often use the provisions of POTA to fit fabricated evidence with confessions extracted under torture.10 Why should the Delhi police be exempted from this charge given their proven record of concoction of evidence in this case itself?
It is a source of great concern that the series of queries raised in this write-up do seem to naturally arise after a perusal of the case. Until these queries are answered to the satisfaction of the nation, we do not yet know who attacked the parliament on that fateful day. Since, as noted, these questions do not directly concern the Supreme Court where the parliament attack case currently rests, the new government will do well to initiate the long-delayed inquiry into them.
Notes and References
1 Revolutionary Democracy, Vol. IX, No. 2, September 2003, p. 51.
2 Nirmalangshu Mukherji, "A Parliament Adjourned", Economic and Political Weekly, 29 December 2001, and "Teachers and War on Terrorism", Economic and Political Weekly, 25 October, 2003.
3 Noam Chomsky, Hegemony or Survival: America’s Quest for Global Dominance, Henry Holt, New York, pp. 115-21.
4 This is not to rule out the possibility that some internal inquiry on this matter has been conducted by the government in secret.
5 Judgment of the Sessions Court, Sessions Case No. 53/2002. 16 December 2002.
6 Judgment of the High Court of Delhi at New Delhi, Murder Reference No. 1/2003. 29 October 2003.
7 Nandita Haksar, A Presumptuous Judgment; A New Concept of Democracy? A critique on the lower court judgment on Dec 13 Parliament attack, All India Defence Committee for Syed Abdul Rehman Gilani; Trial of Errors: A Critique of the POTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights, Nagari Printers, Delhi, February 2003; Nandita Haksar, "The Many Faces of Nationalism", Seminar, January 2004.
8 Trial of Errors: A Critique of the POTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights, Nagari Printers, Delhi, February 2003, p. 17.
9 Trial of Errors: A Critique of the POTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights, Nagari Printers, Delhi, February 2003, p. 15.
10 Vijay Nagaraj, Amnesty International (India), in Blurred Lines, a film by Sujata Venkateswaran and Ruksh Chatterjee, and "Use of POTA against Dalit and Adivasi’s in District Sonbhadra, U.P.", UP Agrarian Reform & Labour Rights Campaign Committee – both presented before People’s Tribunal on POTA, New Delhi, 13 March 2004.
This paper grew out of detailed conversations, spread over many meetings, with Prashant Bhushan, Uma Chakravarti, Ali Javed, Svati Joshi, Neeraj Malik, Nandita Narain, Madhu Prasad, Vijay Singh, Tripta Wahi, and many others. It has been a co-operative effort really.
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