The Batla house operation by the special cell of Delhi police has reopened unanswered questions about the functioning of this agency.
Killings and arrests of muslim youth by the special cell of Delhi police in its anti-terrorist operations are a routine matter by now. For example, as a representation in July 2005 to the National Human Rights Commission by the Committee for Inquiry on December 13 (chaired by late Nirmala Deshpande) documented, the cell conducted the following operations during the short period between February to July 2005. Importantly, this is the period in which the Supreme Court formulated its judgment on the parliament attack case, and the conduct of the cell in its handling of the case was under close scrutiny.
The Committee complained that
(i) In each case, the media reported just the police version of the story in a language and with visual aids that vastly heighten the atmosphere of fear. There have been no follow-ups to ascertain whether the arrests and the encounters were genuine. After the arrests, the arrested persons simply disappeared from view; the media made no inquiries about their treatment in police custody, and whether the accused have been given the due protection of law.
(ii) The media conducted no investigation on the following issues: (a) there is a sudden increase in anti-terrorist operations by the Special Cell, (b) dreaded terrorist organizations such as LeT allow themselves to be repeatedly caught in the traps set up by the Cell, (c) the Cell is able to recover huge amounts of explosives and incriminating material every time such that the identity and the goals of the organisations are immediately exposed, and (d) the remarkable ability of the Special Cell to remain unharmed in alleged gun-battles.
(iii) In at least two cases, there are reasons to doubt the veracity of the police story. First, the alleged ex-militant Mohammad Ahsan Untoo is in fact a senior human rights campaigner in Kashmir, who was arrested by the Special Cell illegally and was brutally tortured in an attempt to extract a confession implicating him with the murderous attack on S. A. R. Geelani (Indian Express, 17 May). Second, the People’s Union for Democratic Rights has shown that the encounter near Pragati Maidan in which two alleged militants were gunned down was possibly an act of cold-blooded murder, reminiscent of the Ansal Plaza incident some years ago (Hindu, 3 May).1
(iv) There is a persistent attempt in the media, lending voice to the police, to link the current sequence of alleged terrorist acts with the Parliament attack case. Not only that the case currently rests with the Supreme Court of India, this Committee, among other human rights forums and lawyers, has repeatedly questioned the functioning of the Special Cell in that case.
Around that time, the government announced the annual gallantry awards and police medals. As usual, a number of officers of the cell found a prominent place in the list. It is to be noted that much has been made in the media of the series of gallantry awards won by inspector Mohan Chand Sharma who was killed in the Batla house operation in mysterious circumstances. When the awards were announced in 2005, a large number of distinguished academicians, lawyers and journalists from across the country made the following protest to the President of India.
We, the undersigned, strongly object to the award of President’s Police Medals for Gallantry and Police Medals for Gallantry to the officers of the Special Cell of Delhi Police. These awards have been announced in The Hindu, August 16, 2005.
As reputed Civil Liberties organisations and Human Rights lawyers have pointed out over the years, the methods of this rogue police cell, which functions as a law unto itself, are seriously questionable. In the name of ‘counter-terrorist’ operations, this Cell has repeatedly engaged in false arrests and encounter killings of innocent people. For example, the National Human Rights Commission had questioned their role in the Ansal Plaza incident in which officer Rajbir Singh and his colleagues shot down two unarmed persons allegedly belonging to Lashkar-e-Toiba.
In recent months, a series of petitions have been filed by Human Rights organisations and lawyers to the National Human Rights Commission alleging, among others, false arrest and brutal torture of a human rights activist from Kashmir, and the fake encounter at Pragati Maidan in which two persons were shot down. A petition from distinguished citizens, listing ten such questionable incidents in recent months, is currently pending with the NHRC.
It is quite clear from the recent judgment of the Supreme Court of India on the Parliament attack case that three innocent persons were framed by the Cell to project a false conspiracy theory. The Court has also held that the confessions secured from two of the accused under POTA were unreliable, and the systematic violation of safeguards have a bearing on the voluntariness of the confessions. In other words, these confessions were no doubt forced. Earlier, the High Court at New Delhi had found the Special Cell guilty of producing false arrest memos, doctoring telephone conversations and illegal confinement of people to force them to sign blank papers.
We are astounded that, instead of subjecting this agency to rigorous investigation and making it accountable, the concerned officers are in fact awarded Gallantry Medals. Apart from raising questions about the self-serving nature of the law-enforcing system, these awards will send wrong signals to dutiful policemen and outlawed terrorists alike.
We appeal to you, therefore, to withdraw these awards and bring the concerned officers to justice.
The appeal to the President was signed by Rajni Kothari, Amiya Dev, Satish Saberwal, Prabhat Patnaik, Sumit Sarkar, D. N. Jha, Ashish Nandy, Mihir Desai, Tanika Sarkar, Indra Munshi, Prashant Bhushan, Darryl D’monte, Kamal Mitra Chenoy, Anuradha Chenoy, Mihir Chakravarty, Parimal Ghosh, Buddhadev Bagchi, Anand Chakravarty, Nasir Tyabji, Alok Rai, Sumanta Bannerjee, Sujat Bhadra, Dilip Simeon, Rita Panicker, Vasanthi Raman, Nivedita Menon, Prabir Purkayastha, Madhu Prasad, among others.
As noted in the representations, human rights organisations such as People’s Union for Democratic Rights (PUDR) and People’s Union of Civil Liberties (PUCL) have persistently reported the unlawful—often murderous—actions of the cell in detail. Not only that these appeals and reports fell on deaf ears of otherwise competent authorities including the National Human Rights Commission, they were only marginally covered by the print media, if at all. What stayed in public memory were the dramatic operations of the special cell resulting in elimination of dreaded terrorists, recovery of large amount of explosive material and other weapons, large cache of foreign exchange, mobile and e-mail records, and, of course, the immediate detailed confessions. Officers such as Rajbir Singh and Mohan Chand Sharma were projected as national heroes, notwithstanding side-reports of the involvement and subsequent murder of Rajbir Singh in connection with shady land deals worth astronomical amounts of money.
The alleged encounter at Batla house in the Jamia Nagar area of New Delhi has finally brought the workings of the Cell in full public view. To recount, some officers of the cell, led by inspector Mohan Chand Sharma, barged into L-18 of Batla house at about 11 AM on 19 September 2008 and killed two muslim boys Atif and Sajid while Mohammad Saif was arrested from the scene; according to the police, two other boys somehow escaped. In the process, inspector Sharma was seriously injured; Sharma died later.
As much of the political leadership of Delhi, including the prime minister and the home minister, rushed to pay glowing tributes to the departed inspector Sharma, the cell announced within hours of the event that the boys were not only directly involved with the serial blasts in Delhi on 13 September, they were also part of the Indian Mujahideen (IM) group responsible for the serial blasts in Jaipur, Ahmedabad, and the unsuccessful attempt in Surat. In fact Atif was claimed to be the mastermind of the Delhi blasts while the 17-year old Sajid was portrayed as the bomb-maker. Based on the material allegedly recovered from the site and the interrogation of the arrested, more arrests followed in Delhi, Mumbai and elsewhere as full details of an elaborate conspiracy emerged in breathtaking speed. In a word, the cell claimed to have crushed one of the most sinister terrorist networks in recent years that has caused havoc across the country. For days after the event, the visual and the print media reported the police version dutifully in full colours. So far, then, the events followed their familiar course.
However, very soon, events took a very different turn. Within days of the operation, at least three different teams of well-known human rights activists, lawyers and (non-embedded) journalists visited the Batla house area and prepared reports based on physical investigation of the site and extensive interrogation of people in the predominantly muslim neighbourhood. Since the topic was still fresh, these investigative reports were substantially covered in the mainstream print media. Simultaneously, perhaps for the first time in recent years (outside of Kashmir), the local community as a whole mustered the courage to protest against what they believed to be cold-blooded murder of two muslim boys.
Their protests coincided with the sense of outrage in the nearby Jamia Milia Islamia university since some of the boys killed and arrested in the process were students of the university. In an unprecedented democratic gesture, some of the teachers quickly formed a Jamia Teachers Solidarity Group and initiated a number of public actions including an impressive march in the area. The Vice-Chancellor of the university declared legal aid to the arrested students and legal aid committees were duly formed. Cases challenging the legality of police action were also filed with the NHRC and the Delhi High Court by eminent human rights lawyers.
Apart from campaign in the press, the Group also organised a number of meetings both in the university and in the Batla house area. Each of these events were substantially covered in the press along, albeit, with the changing versions of the police. One of these was a huge ‘public tribunal’ in which teachers, lawyers, journalists, writers, and eminent social activists from across the city joined several thousand people from the community. Over a dozen local residents, who had witnessed parts of the police operation, gave testimony. After listening to the witnesses, the jury of the tribunal made the following observations:2
The predominant sentiment among the local residents about the ‘encounter’ is one of anger and disbelief. This feeling was articulated by the participants and those who gave testimony. Local residents have taken strong exception to the stereotyping of young Muslim educated youth in this area and also in general as terrorists. The links that the media and the state is making between education, especially professional technical education among the Muslim youth and terrorism has fueled fears that it will inhibit the progress and social advancement of the community.
It is noted that prior to moving to L-18, the deceased had verification proofs in place with the local police. Sajid had appeared for his 11th class examination at Jamia School and all address details were genuine. Atif had enrolled in Jamia Millia Islamia. Till date, all identification records submitted by them have been found to be true. The verification details for obtaining their mobile connections are also genuine. These proofs establish the credibility of the boys killed in the encounter as students seeking opportunities and a career in the city.
The statement by people who bathed the bodies of the dead boys before their burial was striking: they testified that the skin on Atif’s back was sloughed off; there was smell in his body; there were multiple bullet injuries on Sajid’s head. These cast aspersions on the police version.
On the nature of firing, all residents uniformly testified that the firing happened in quick succession punctuated by short intervals for nearly an hour after Inspector Sharma was brought down. People testified that they had seen him coming down with injury – blood was oozing out from the wound. The members of the locality raised questions about the long duration of firing in L-18. The death of Inspector Sharma too is shrouded in mystery.
The witnesses also expressed their anguish about the way in which the police kept the community on tenterhooks about the burial of the bodies. The handing over of the bodies was delayed and the entire process was marked by complete lack of sensitivity in relation to the dead. The Jury feels that minimum human sensibilities must be respected regardless of the charges against the dead.
The jury strongly felt that there was ample ground to doubt the veracity of the police version of the sequence of events on 19th September. Following these observations, the jury demanded a judicial probe by a sitting Supreme Court judge and handing over the case to the Central Bureau of Investigations.
It must be noted that the observations of the jury was restricted to the testimony of the witnesses at the tribunal. Beyond these observations, many other questions have been raised by different groups over the past few weeks. Consider, for example, the timing of the operation. Was it a mere coincidence that the entire sequence of horrendous terrorist outrages in the serial blasts of Jaipur, Ahmedabad, Delhi and the unsuccessful attempt at Surat was solved in one stroke with a single ‘encounter’ within a week of the latest blasts just when the demand for the removal of the Union Home Minister, Shivraj Patil, was at its peak even from within the UPA and the Congress? Further, the cell has repeatedly confirmed that the Batla house operation was based on specific information received from informers and electronic surveillance. Why then were the members of the initial police team led by inspector Sharma not wearing bullet-proof jackets? Was it part of the information that the ‘terrorists-in-hiding’ were unarmed? If so, then what explains the severe injuries on inspector Sharma? If the police had specific information, why wasn’t the ‘hideout’ surrounded and the ‘terrorists’ asked to surrender? Is it the case that the police maintained a surveillance for several weeks? If so, then why couldn’t the serial blasts of 13 September be prevented?
Despite persistent demand for an independent judicial probe, the government – represented by the national security advisor – refused to intervene. Needless to say, the Bharatiya Janata Party strongly supported the stand of the government.3 Its leader, L. K. Advani, used the occasion once again to demand immediate execution of Mohammad Afzal Guru! Nevertheless, some prominent members of the Congress, including Kapil Sibal, met the Prime Minister to ask for an independent inquiry. Later, some prominent members of the minority cell of Congress publicly demanded judicial probe.4 As doubts about the veracity of the police operation grew, Amar Singh of the Samajwadi Party and Mamata Bannerjee of the Trinamool Congress, in an unprecedented move by mainstream political parties outside the Kashmir valley, joined a huge rally in Jamia Nagar in solidarity with the local community and demanded an independent judicial probe.5
In sum, although PUDR and other organizations have often raised the issue of fake encounters and illegal arrests by the special cell as noted, the concerns basically remained within the human rights networks with limited reach. For the first time, the Batla house operation has brought the operations of the cell under full public scrutiny.
It is natural to ask whether the suggested judicial probe should be restricted to Batla house episode alone. In his recent submission before the Delhi High Court, senior counsel Prashant Bhusan, appearing for PUDR, has questioned the legality of the Batla house operation.6 In the course of his argument, he mentioned several other cases – such as the ‘encounter’ at the Millenium Park – in which the operations of the cell had been seriously questioned by human rights organisations earlier. The point is substantiated as follows.
Beyond the regular investigations carried out by human rights organizations, there are at least two cases in which illegal operations of the special cell found judicial mention. As noted, in the Parliament attack case, the High Court in Delhi held the cell responsible for producing false arrest memos, and for illegally detaining people to force them to sign on blank papers; it also questioned the veracity of the telephonic records produced by the cell. In the same case, the Supreme Court set aside the confessions secured by the cell under POTA because the cell failed to uphold even the minimal safeguards allowed under the otherwise draconian POTA.7 As the senior counsel Shanti Bhushan submitted before the High Court in Delhi, the cell had not only ‘gone out of its way in concocting evidence,’ it ‘had even gone to the extent of forging and fabricating important documents for framing the appellants and police officials had clearly given perjured evidence.’ According to the senior counsel, ‘the investigating officials have clearly committed offences punishable imprisonment with life under Section 194 and 195 of I.P.C.’8
In a more recent case, the judicial pronouncement against the cell had been even more damaging. In a repetition of the familiar story, the cell had arrested two muslim youth, Mohammad Maurif Qamar and Irshad Ali, allegedly from the Mubarak Chowk bus stop on G.T. Karnal Road in north Delhi on 9 February 2006. Among other material, two kg of RDX and pistols were recovered from them. The police charged them as terrorists belonging to the Al-badr outfit, and booked them under sections 121 (waging war against the state) and 120B (criminal conspiracy) as well as under the Explosives Act. However, the accused found a zealous and courageous lawyer to defend them.
Upon investigation it turned out that Qamar and Ali were actually police informers who were assigned the task of infiltrating terrorist organisations in Jammu and Kashmir. When they refused, Qamar was abducted from his residence in Bhajanpura on 22 December 2005 while Ali went missing from his Sultanpuri house on 12 December. The lawyer could establish these facts from the phone records between the cell and the accused. The matter was referred to the High Court which ordered a supplementary investigation into the case by the CBI. In its status report submitted before the court of justice Reva Khetrapal, the CBI said that
After concluding that the arrests and the recoveries do not ‘inspire confidence’, the CBI suggested that it seemed that the duo were victims of a conspiracy hatched by the Special Cell in collusion with intelligence bureau operatives.9 The CBI asked the court to entrust the ‘investigation of the case to CBI for a thorough and impartial investigation into the matter’.10 After a strong reminder by the High Court,11 the CBI submitted a report in August this year in a sealed cover. Based on the (confidential) report, justice Suresh has asked the CBI to proceed against the officials involved. The h’ble judge also gave Qamar and Ali the liberty to move before the appropriate court of law in order to seek action against the errant police officials.12
Mohammad Afzal Guru, currently awaiting presidential orders in the death row in the Tihar jail, failed to secure such liberty, even though his case matched those of Qamar and Ali in significant respects. To recall, many voices had asked for an investigation by the CBI on the parliament attack case.13 As we just saw, the Courts have the power to ask for supplementary reports by other investigating agencies. Unfortunately, it never happened for the parliament case despite the enormity of the matter. As such, many queries that were raised regarding the actions of the cell were never subjected to further investigation.
For example, Afzal claimed in his Statement 313 before the Sessions Court that he had been working as a Special Police Officer for the Special Task Force of Jammu and Kashmir since 2000. He also claimed that the STF asked him to take Mohammad – whom Afzal had met in the STF camp and who was killed during the attack on parliament – to Delhi. As Afzal suggested in his letter to senior counsel Sushil Kumar,14 who appeared for him in the Supreme Court, his contentions could have been verified by investigating into the phone numbers from Kashmir allegedly recovered from the mobile phones recovered from the scene of the attack. Further, while the police claimed that Afzal was arrested along with Shaukat Hussain from a truck, Afzal claimed that he was arrested alone from a bus stop in Srinagar. Also, there were no independent witnesses to the alleged crucial recovery of a laptop computer, Rupees ten lacs in cash and much else from the truck. The police story of how these items reached Afzal was contained exclusively in Afzal’s confession under POTA. Since the Supreme Court set this confession aside, the veracity of the alleged recoveries remain at least questionable.
So far Afzal’s case matches those of Qamar and Ali. However, unlike the latter case, Afzal had no meaningful defence in the trial court. Hence, the police witnesses on these matters were not even subjected to proper cross-examination,15 not to speak of pursuing them in an independent investigation.16 Mohammad Afzal awaits death essentially without trial.
Now that the Batla house episode has finally aroused the collective conscience of the society to seek justice, it stands to reason that the entire stretch of questionable operations by the Special Cell of Delhi Police be subjected to judicial probe. Only then the conscience is likely to be satisfied.
1 For details on these matters, see my ‘A Very Special Police’, Znet, 29 June 2005.
2 The jury consisted of Swami Agnivesh, John Dayal, Tanika Sarkar, Harsh Mander, Vijay Singh, Tripta Wahi, and myself as members, while Arundhati Roy, Prashant Bhusan, Syeda Hamid and others were independent observers of the proceedings of the tribunal.
3 Reported in The Hindu, 19 October.
4 Times of India, 17 October.
5 Times of India, 18 October. The paper reported that Mamata Bannerjee was convinced that Delhi police had staged a fake encounter and that the two terror suspects had been targeted because of their religion.
6 Hindusthan Times, 16 October.
7 For details, see my December 13: Terror Over Democracy, Bibliophile South Asia, New Delhi, 2005; Arundhati Roy, ‘And His Life Should Become Extinct’, Outlook Magazine, 31 October 2006; essays in 13 December: A Reader, Penguin, New Delhi, 2006.
8 Written Submissions on behalf of Shaukat Hussain Guru, In Murder Reference 1 of 2003 & Criminal Appeal 36 of 2003, presented by Shri Shanti Bhushan, Senior Advocate.
9 Hindustan Times, 6 August 2008.
10 See Sunday Times, 15 July 2007; Hindustan Times 12 July 2007; Punjab Kesari, 11 July 2007; Rashtriya Sahara 11 July 2007.
11 Indian Express, 25 October 2007
12 Hindustan Times, 6 August 2008.
13 See my December 13: Terror Over Democracy, Op.cit. which contains the PUDR report Trial of Errors in which the demand for a CBI inquiry was also raised.
14 The said letter was printed and made available for public consumption by advocate Nandita Haksar in October 2006 when Afzal’s hanging was announced by a sessions court in Delhi.
15 See the trial documentation in The Afzal Petition: A Quest for Justice, Bibliophile South Asia 2007, and 13 December: A Reader (Appendix I), Op.Cit.
16 Interestingly, a small bit of the parliament attack case was
in fact investigated by the CBI. The cell, after its own
investigations, claimed in the FIR that deceased Mohammad was in fact
‘Burger’ who was one of the hijackers of the Indian Airlines plane
IC-814 to Kandahar. The matter was handed over to the CBI who found no
basis to the claim.
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