The Delhi University Teachers in Defence of S.A.R. Gilani has been deeply concerned about the denial of justice to a fellow teacher, S.A.R. Gilani, an accused in the case concerning the attack on the Parliament on December 13, 2001. Shockingly, Gilani was convicted by the Special Court, designated under the Prevention of Terrorism Act (POTA), and given the death penalty only on the basis of a telephonic conversation in Kashmiri with his brother, lasting two minutes and sixteen seconds. However, the defence argued that both the procedure and the content of the translation from Kashmiri to English were seriously flawed.
No link between Gilani and the five persons who attacked the Parliament, or with any banned organization, was established or even alleged by any of the 80 prosecution witnesses. No arms or ammunition or incriminating document of any kind were recovered from his person or his house.
His only crime appears to have been a casual acquaintance with the co-accused, a fact that Gilani has never denied. Significantly, these individuals happened to be from the same district, Baramullah, in Kashmir; they were also students of Delhi University where Gilani met them. Thus, it was only natural that Gilani would be acquainted with them. The reasoning that a person is guilty just because he is acquainted with persons subsequently accused of a crime is both absurd and tragic.
Our apprehensions about this travesty of justice is further compounded by the fact that, in the High Court, the prosecution has now shifted emphasis from the said call to his brother to some unrecorded calls with the co-accused. It is to be noted that Gilani made a written application to the Court asking for an opportunity to explain these calls, but this basic legal right was denied to him.
We also feel that the lack of evidence and irregularity of procedures is sought to be substituted by a virulent campaign of disinformation about the facts of the case. We note with concern that the media, largely, has buckled under pressure, and has contributed to prejudicing public opinion against Gilani by condemning him even before the trial had begun.
In an amazing violation of journalistic ethics, one TV channel repeatedly telecast a "recreation" of the attack on the Parliament based only on the version of the prosecution in an attempt to prejudice public opinion. Unfortunately, the Supreme Court allowed the telecasting of a film that pronounced Gilani guilty even before judgement was delivered. It is a matter of great concern for us that the same film is being telecast again now when the judgement of the High Court is due.
To add to the trial by the media, several fundamentalist organizations have openly threatened violence against lawyers who have dared to defend Gilani. Not even a lawyer as eminent as Mr. Ram Jethmalani was spared when he decided to defend Gilani in the High Court. Jethmalani’s office was vandalized in Mumbai by the Shiv Sena.
S.A.R. Gilani is personally known to many of us. He is a popular teacher and a serious scholar. Many of us remember his engaging discussions with students and friends. We also remember him as a person always willing to give time to help others.
Gilani’s secular credentials are impeccable, and he has always condemned violence. Even when convicted by the Special Court and sentenced to death, he said,
I have always considered terrorism, be it unleashed by the state or by parties outside the state, as condemnable and have clearly criticised it. The killing of innocents, the rape of women, the murder of justice, these are all the worst forms of terrorism. Every effort needs to be made to end this terror.
As citizens, we condemn the attack on the Parliament in unequivocal terms. We demand that the perpetrators of this atrocious crime be identified and brought to justice. But the cardinal principal of natural justice that every accused is deemed to be innocent until found guilty must not only prevail, it should be seen as prevailing.
In this sense, we believe that S.A.R. Gilani’s case raises disturbing questions even larger than the fate of an individual citizen. It is a test case for the Indian legal system and its ability to deliver justice. In fact, Indian democracy itself is on trial.
18th September 2003
It is now more than a year and a half since the Indian parliament was attacked by a group of armed men on 13 December 2001. The attack marked a watershed in our history since it rudely exposed the vulnerability of even the highest institutions of our country.
The real facts of this case remain shrouded in mystery. Who were the attackers who were killed? Who were their patrons? Which organizations were behind it? These questions still have not been answered. Meanwhile, four people have been accused of being part of the conspiracy, and three of them have been awarded death penalty.
One of the accused, S.A.R. Geelani, belongs to our academic fraternity. He was a student of Delhi University, and is now a teacher in Zakir Hussain College. He has been in prison since 14 December 2001, has faced brutal and dehumanizing torture, suffered the humiliation of being branded a terrorist, and more recently has been awarded two death sentences by the designate court.
Geelani has been charged with waging war against the Government of India; collecting arms for this purpose; conspiracy to murder; terrorist act and membership of a terrorist gang; and unauthorised possession of explosives.
Evidently, the police and the designate court have accused Geelani of being a hardened terrorist. However, several people who have been following the case since its inception have been struck by the flimsy, inconsistent and illegal nature of the evidence marshaled by the police. Eminent citizens, including Rajni Kothari, Prabhash Joshi, Surendra Mohan and Arundhati Roy, have formed a Defence Committee seeking fair trial for Geelani. Convinced of Geelani’s innocence, eminent jurist and ex-Law Minister, Ram Jethmalani has volunteered to defend him free of charge.
As Ram Jethmalani points out there is ‘no evidence’ whatsoever against Geelani. Consider the facts:
None of the 80 witnesses produced by the prosecution accused Geelani of belonging to any terrorist organization or of meeting or even being in touch with the attackers.
None of the witnesses testified that he possessed or collected arms and ammunition or helped in any way in the preparation of the attack.
No incriminating documents or materials were found in his possession.
In fact, the cross examination of witnesses revealed that the police did not even conduct an official search of his house.
So what are the grounds for implicating Geelani?
The police have accused Geelani of knowing his co-accused Shaukat and Afzal and having exchanged phone calls with them.
Geelani has never denied his acquaintance with the two. All of them hail from the district of Baramulla and were staying in the same locality in Delhi. It is, therefore, natural for them to have known one another. This in itself cannot be made a ground for establishing Geelani’s involvement in any conspiracy.
Geelani freely acknowledged making occasional calls to the co-accused. He even offered to explain that the calls were of an innocuous nature. However, the court denied him the opportunity to do so. Interestingly even when the police admitted that they had been tapping his phone for several months they did not place either the transcript or the recording of these calls before the court. If the police had found anything incriminating in these calls would they not have placed it before the court?
The phone call that the police claimed established Geelani’s guilt is the 2.16 minute conversation (in Kashmiri) with his 18 year old brother.
The irresponsible handling of this supposedly crucial piece of evidence by the police is worth noting. They did not consult an expert for translation, choosing instead to have the piece orally translated by a semi-literate fruit seller. The transcript of the Hindi translation was not read out to the fruit seller for verification. In court, the police produced neither the recording nor its transcript in Kashmiri. The Hindi translation submitted by them was not even faithful to the recorded conversation.
On the other hand, the translations provided by expert witnesses, Sanjay Kak, a film maker and Sampat Prakash, a trade union leader, were disregarded by the court. The police claim that in response to a query by the caller (Geelani’s brother), ‘What happened in Delhi’, Geelani replied ‘It was necessary’. However, expert witnesses testified that these words here attributed to Geelani simply did not exist in the recording. Moreover, the police investigation found the younger brother to be innocent and unaware of the conspiracy. It stands to reason therefore that his query on Delhi could not be referring to the attack on parliament. And would a terrorist discuss such a major attack on the phone, especially when he had a regular connection in his name (and not an anonymous cash card)? The police and the court did not consider it fit to ponder over these questions.
Clearly the case against Geelani is based on presumptions and prejudice. The court by condoning every illegality and procedural violation committed by the police failed to ensure a fair trial to Geelani. As Ram Jethmalani has pointed out, the ‘whole trial is unconstitutional, illegal and void...’
It has been argued that in cases involving terrorists it is not necessary to apply notions of human rights and fair trial. But how can we judge who is guilty of terrorism without conducting a fair trial?
If innocent people are victimized it also means that real culprits are allowed to go scot-free. Because of the political pressure to solve the case in unseemly haste, the weaknesses of the investigation have been covered up. We still do not know the truth regarding identities of the five attackers and the mastermind behind them.
If Geelani can be framed and be hanged for a crime he did not commit, tomorrow the same thing can happen to any one of us. It is therefore imperative that each of us act in support of justice and demand a fair trial for Geelani.
Respected members of the Defence Committee I am overjoyed to know that you have decided to stand together in the struggle against injustice. You are not just defending an individual here but making an important effort to preserve and invigorate the values of democracy and justice. Coming at a time when fascist forces are out to overcome the flag-bearers of peace and justice, your effort is both an act of compassion and courage.
At a time when the governmental and non-governmental apparatus is being brazenly used to decimate the ideals of fair play and justice, when oppression has become the order of the day, your decision to stand up is no less than walking on embers. I salute your courage and offer my heart-felt thanks. And along this path I would most humbly say, you will need patience, perseverance and an unwavering commitment to keep going. There is propaganda and there are conspiracies to vitiate the hearts and minds of the people, and you will need to be alert to this.
As regards a solution to the Kashmir issue, my opinion has always been in favour of a peaceful solution, one that takes into account the aspirations of the people of Jammu and Kashmir. I have been supportive of the efforts for peaceful resolution, and added my bit in this direction. I have always considered terrorism, be it unleashed by the state or by parties outside the state, as condemnable and have clearly criticized it. The killing of innocents, the rape of women, the murder of justice, these are all the worst forms of terrorism. Every effort needs to be made to end this terror. My beliefs and actions have always pointed in that direction, and even today, I stand by them.
The lofty prison walls,
the torture I bear in their confines,
will fail to weaken or erase these beliefs of mine.
I borrow from a poet a verse that echoes my feelings:
Never could these walls halt, the march of passion
This on a prison wall, wrote a mad heart.
Once again, thank you, and I pray you succeed in your task.
For a man imprisoned cannot do more.
Syed Abdul Rahman Geelani
Tihar Jail No. 1
Ram Jethmalani’s submission on behalf of the appellant – Abdul Rahman Geelani
This is a case of no evidence. The law of evidence has been treated as non existent. The provisions of the Code of Criminal Procedure and Evidence Act have been flagrantly violated. Serious objections remain undisposed of. The accused did not know what case they had to meet. Out of the 25 pieces of evidence marshaled by the counsel for the State against appellant Geelani, half are innocuous and exculpatory. The remaining are not legal evidence.
The conviction proceeds on a total misunderstanding of the law and concept of conspiracy. The Trial Court never adverted to it nor did it hold the ingredients proved.
The cognizance of the various offences charged has been taken without the sanctions required by Sec. 196 of the Code of Criminal Procedure or Section 5 of POTA or Section 7 of the Explosive Substances Act. The purported sanctions are ex facie invalid, given by authorities, which had no power to grant them, and the evidence discloses total non application of mind and an unforgivable frivolity of attitude when the law enjoins careful and serious analysis and appraisal of evidence before granting the sanctions. The purported sanctions are void and the trial totally without jurisdiction and a nullity.
That the investigation is riddled with illegality. The evidence discloses concoction and fabrication. All these have been grossed one and have resulted in a grave miscarriage of justice.
That the charges framed are illegal. Particulars required by law are missing. Some charges are so ridiculous that the proceedings are deprived of the solemnity of a serious criminal trial. It is regrettable that neither the Public Prosecutor nor the Presiding Judge have displayed due performance of their respective roles.
All the charges of offence under Chapter VI of the Indian Penal Code are bad in law. Terrorists cannot be exalted to the status of warriors. The two are inconsistent concepts ‘war’ and ‘waging war’ are totally misunderstood. Convictions and sentences are totally illegal.
That the most vital safeguard for the accused is Section 313 of the Code. The questions put to the accused are impermissible cross-examination. Circumstances which ought to have been put to the accused were never put to him for his explanation and if necessary cross-examination of witnesses and leading of defence evidence. Instead non-existing circumstances were put to him. The court had no grip over the case and the Public Prosecutor failed to provide fair assistance expected of a quasi-judicial officer. Questions were so framed that the accused could not reasonably be expected to understand their import and significance. This has vitiated the trial. Principles of natural justice have been thrown to the winds resulting in miscarriage of justice.
The Court below has not considered scores of exculpatory circumstances which apart from negativing guilt positively established innocence. A catalogue of these will be presented to this Hon’ble Court in due course.
That in capital cases 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. This duty was not performed and the record discloses that the accused never got proper and adequate legal assistance. The Court instead appointed an ‘amicus’. This is not known to our law and practice. His presence and participation have caused confusion and prejudice vitiating the trial.
That the appreciation of evidence particularly defence evidence is totally wrong and prejudiced. The findings of fact recorded are wrong and perverse.
That the sentences passed are illegal and unjustified. The prayer for enhancement is grossly unfair and betrays animus of the prosecuting agencies.
A Court of reasonable competence and freedom from all bias – or suspicion of bias – is the requirement of Article 21. The howlers including callous and gross carelessness, the irregularities, the illegalities at every state and exhibitions of prejudice and hostility against the accused at every step place the trial court and its conduct of the trial far below the standards required by Article 21. This whole trial is unconstitutional, illegal and void. Nothing of it can survive.
Delhi University Teachers in Defence of S.A.R. Gilani
I read with much concern the statement of the Delhi University Teachers in Defence of S.A.R. Gilani. What it describes is utterly outrageous, and surely should not be tolerated. The phrase 'absurd and tragic' is fully warranted.
The atrocities of 9-11 were exploited in a vulgar way by governments all over
the world, in some
cases by escalating massive crimes on the pretext of 'combating terrorism,' in others by implementing repressive legislation to discipline their own citizens with no credible connection to preventing terrorist threats, in some cases by carrying out programmes that had not the remotest connection to terrorism and might even enhance it and that were opposed by the majority of the population. Terrorism is a serious matter, and merits careful attention and scrupulous preventive measures and response. It is disgraceful for the authentic threat of terrorism to be exploited as a window of opportunity for intolerable actions.
I hope and trust that Indian democracy and its legal system will rise to the challenge, reverse this decision, and ensure that human and civil rights are properly protected.
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