Outlook Magazine Oct 30, 2006
                  
  'And His Life Should Become Extinct'

The Very Strange Story of the Attack on the Indian Parliament

-- By ARUNDHATI ROY

We know this much: On December 13, 2001, the Indian Parliament was in
its winter session. (The NDA government was under attack for yet another
corruption scandal.) At 11.30 in the morning, five armed men in a white
Ambassador car fitted out with an Improvised Explosive Device drove
through the gates of Parliament House. When they were challenged, they
jumped out of the car and opened fire. In the gun battle that followed, all the
attackers were killed. Eight security personnel and a gardener were killed
too. The dead terrorists, the police said, had enough explosives to blow up
the Parliament building, and enough ammunition to take on a whole
battalion of soldiers. Unlike most terrorists, these five left behind a thick trail
of evidence-weapons, mobile phones, phone numbers, ID cards,
photographs, packets of dry fruit, and even a love letter.

Not surprisingly, PM A.B. Vajpayee seized the opportunity to compare the
assault to the September 11 attacks in the US that had happened only
three months previously.

On December 14, 2001, the day after the attack on Parliament, the Special
Cell of the Delhi Police claimed it had tracked down several people
suspected to have been involved in the conspiracy. A day later, on
December 15, it announced that it had "cracked the case": the attack, the
police said, was a joint operation carried out by two Pakistan-based terrorist
groups, Lashkar-e-Toiba and Jaish-e-Mohammed. Twelve people were
named as being part of the conspiracy. Ghazi Baba of the Jaish (Usual
Suspect I), Maulana Masood Azhar also of the Jaish (Usual Suspect II);
Tariq Ahmed (a "Pakistani"); five deceased "Pakistani terrorists" (we still
don't know who they are). And three Kashmiri men, S.A.R. Geelani,
Shaukat Hussain Guru, and Mohammed Afzal; and Shaukat's wife Afsan
Guru. These were the only four to be arrested.

In the tense days that followed, Parliament was adjourned. On December
21, India recalled its high commissioner from Pakistan, suspended air, rail
and bus communications and banned over-flights. It put into motion a
massive mobilisation of its war machinery, and moved more than half-a-
million troops to the Pakistan border. Foreign embassies evacuated their
staff and citizens, and tourists travelling to India were issued cautionary
travel advisories. The world watched with bated breath as the subcontinent
was taken to the brink of nuclear war. (All this cost India an estimated Rs
10,000 crore of public money. A few hundred soldiers died just in the
panicky process of mobilisation.)

Almost three-and-a-half years later, on August 4, 2005, the Supreme Court
delivered its final judgement in the case. It endorsed the view that the
Parliament attack be looked upon as an act of war.It said, "The attempted
attack on Parliament is an undoubted invasion of the sovereign attribute of
the State including the Government of India which is its alter ego...the
deceased terrorists were roused and impelled to action by a strong anti-
Indian feeling as the writing on the fake home ministry sticker found on the
car (Ex PW1/8) reveals." It went on to say "the modus operandi adopted by
the hardcore 'fidayeens' are all demonstrative of launching a war against
the Government of India".

The text on the fake home ministry sticker read as follows:

    "INDIA IS A VERY BAD COUNTRY AND WE HATE INDIA WE WANT
TO DESTROY INDIA AND WITH THE GRACE OF GOD WE WILL DO IT
GOD IS WITH US AND WE WILL TRY OUR BEST. THIS EDIET WAJPAI
AND ADVANI WE WILL KILL THEM. THEY HAVE KILLED MANY
INNOCENT PEOPLE AND THEY ARE VERY BAD PERSONS THERE
BROTHER BUSH IS ALSO A VERY BAD PERSON HE WILL BE NEXT
TARGET HE IS ALSO THE KILLER OF INNOCENT PEOPLE HE HAVE
TO DIE AND WE WILL DO IT."

---------------

This subtly worded sticker-manifesto was displayed on the windscreen of
the car bomb as it drove into Parliament. (Given the amount of text, it's a
wonder the driver could see anything at all. Maybe that's why he collided
with the Vice-President's cavalcade?)

The police chargesheet was filed in a special fast-track trial court
designated for cases under the Prevention of Terrorism Act (POTA). The
trial court sentenced Geelani, Shaukat and Afzal to death. Afsan Guru was
sentenced to five years of rigorous imprisonment. The high court
subsequently acquitted Geelani and Afsan, but it upheld Shaukat's and
Afzal's death sentence. Eventually, the Supreme Court upheld the
acquittals, and reduced Shaukat's punishment to 10 years of rigorous
imprisonment. However it not just confirmed, but enhanced Mohammed
Afzal's sentence. He has been given three life sentences and a double
death sentence.

In its August 4, 2005, judgement, the Supreme Court clearly says that there
was no evidence that Mohammed Afzal belonged to any terrorist group or
organisation. But it also says, "As is the case with most of the conspiracies,
there is and could be no direct evidence of the agreement amounting to
criminal conspiracy. However, the circumstances, cumulatively weighed,
would unerringly point to the collaboration of the accused Afzal with the
slain 'fidayeen' terrorists."

So: No direct evidence, but yes, circumstantial evidence.

A controversial paragraph in the judgement goes on to say, "The incident,
which resulted in heavy casualties, had shaken the entire nation, and the
collective conscience of the society will only be satisfied if capital
punishment is awarded to the offender. The challenge to the unity, integrity
and sovereignty of India by these acts of terrorists and conspirators can
only be compensated by giving maximum punishment to the person who is
proved to be the conspirator in this treacherous act" (emphasis mine).

To invoke the 'collective conscience of society' to validate ritual murder,
which is what the death penalty is, skates precariously close to valorising
lynch law.It's chilling to think that this has been laid upon us not by
predatory politicians or sensation-seeking journalists (though they too have
done that), but as an edict from the highest court in the land.

Spelling out the reasons for awarding Afzal the death penalty, the
judgement goes on to say, "The appellant, who is a surrendered militant
and who was bent upon repeating the acts of treason against the nation, is
a menace to the society and his life should become extinct."

This paragraph combines flawed logic with absolute ignorance of what it
means to be a 'surrendered militant' in Kashmir today.

So: Should Mohammed Afzal's life become extinct?

A small, but influential minority of intellectuals, activists, editors, lawyers
and public figures have objected to the Death Sentence as a matter of
moral principle. They also argue that there is no empirical evidence to
suggest that the Death Sentence works as a deterrent to terrorists. (How
can it, when, in this age of fidayeen and suicide bombers, death seems to
be the main attraction?)

If opinion polls, letters-to-the-editor and the reactions of live audiences in
TV studios are a correct gauge of public opinion in India, then the lynch
mob is expanding by the hour. It looks as though an overwhelming majority
of Indian citizens would like to see Mohammed Afzal hanged every day,
weekends included, for the next few years. L.K. Advani, leader of the
Opposition, displaying an unseemly sense of urgency, wants him to be
hanged as soon as possible, without a moment's delay.

Meanwhile in Kashmir, public opinion is equally overwhelming. Huge angry
protests make it increasingly obvious that if Afzal is hanged, the
consequences will be political. Some protest what they see as a
miscarriage of justice, but even as they protest, they do not expect justice
from Indian courts. They have lived through too much brutality to believe in
courts, affidavits and justice any more. Others would like to see
Mohammed Afzal march to the gallows like Maqbool Butt, a proud martyr to
the cause of Kashmir's freedom struggle. On the whole, most Kashmiris
see Mohammed Afzal as a sort of prisoner-of-war being tried in the courts
of an occupying power. (Which it undoubtedly is). Naturally, political parties,
in India as well as in Kashmir, have sniffed the breeze and are cynically
closing in for the kill.

Sadly, in the midst of the frenzy, Afzal seems to have forfeited the right to
be an individual, a real person any more. He's become a vehicle for
everybody's fantasies-nationalists, separatists, and anti-capital
punishment activists. He has become India's great villain and Kashmir's
great hero-proving only that whatever our pundits, policymakers and
peace gurus say, all these years later, the war in Kashmir has by no means
ended.

In a situation as fraught and politicised as this, it's tempting to believe that
the time to intervene has come and gone. After all, the judicial process
lasted 40 months, and the Supreme Court has examined the evidence
before it. It has convicted two of the accused and acquitted the other two.
Surely this in itself is proof of judicial objectivity? What more remains to be
said? There's another way of looking at it. Isn't it odd that the prosecution's
case, proved to be so egregiously wrong in one half, has been so gloriously
vindicated in the other?

The story of Mohammed Afzal is fascinating precisely because he is not
Maqbool Butt. Yet his story too is inextricably entwined with the story of the
Kashmir Valley. It's a story whose coordinates range far beyond the
confines of courtrooms and the limited imagination of people who live in the
secure heart of a self-declared 'superpower'.Mohammed Afzal's story has
its origins in a war zone whose laws are beyond the pale of the fine
arguments and delicate sensibilities of normal jurisprudence.

For all these reasons it is critical that we consider carefully the strange,
sad, and utterly sinister story of the December 13 Parliament attack. It tells
us a great deal about the way the world's largest 'democracy' really works.
It connects the biggest things to the smallest. It traces the pathways that
connect what happens in the shadowy grottos of our police stations to what
goes on in the cold, snowy streets of Paradise Valley; from there to the
impersonal malign furies that bring nations to the brink of nuclear war. It
raises specific questions that deserve specific, and not ideological or
rhetorical answers. What hangs in the balance is far more than the fate of
one man.

On October 4 this year, I was one amongst a very small group of people
who had gathered at Jantar Mantar in New Delhi to protest against
Mohammed Afzal's death sentence. I was there because I believe
Mohammed Afzal is only a pawn in a very sinister game. He's not the
Dragon he's being made out to be, he's only the Dragon's footprint. And if
the footprint is made to 'become extinct', we'll never know who the Dragon
was. Is.

Not surprisingly, that afternoon there were more journalists and TV crews
than there were protesters. Most of the attention was on Ghalib, Afzal's
angelic looking little son. Kind-hearted people, not sure of what to do with a
young boy whose father was going to the gallows, were plying him with ice-
creams and cold drinks. As I looked around at the people gathered there, I
noted a sad little fact. The convener of the protest, the small, stocky man
who was nervously introducing the speakers and making the
announcements, was S.A.R. Geelani, a young lecturer in Arabic Literature
at Delhi University. Accused Number Three in the Parliament Attack case.
He was arrested on December 14, 2001, a day after the attack, by the
Special Cell of the Delhi Police. Though Geelani was brutally tortured in
custody, though his family-his wife, young children and brother-were
illegally detained, he refused to confess to a crime he hadn't committed. Of
course you wouldn't know this if you read newspapers in the days following
his arrest. They carried detailed descriptions of an entirely imaginary, non-
existent confession. The Delhi Police portrayed Geelani as the evil
mastermind of the Indian end of the conspiracy. Its scriptwriters
orchestrated a hateful propaganda campaign against him, which was
eagerly amplified and embellished by a hyper-nationalistic, thrill-seeking
media. The police knew perfectly well that in criminal trials, judges are not
supposed to take cognisance of media reports. So they knew that their
entirely cold-blooded fabrication of a profile for these 'terrorists' would
mould public opinion, and create a climate for the trial. But it would not
come in for any legal scrutiny.

Here are some of the malicious, outright lies that appeared in the
mainstream press:

'Case Cracked: Jaish behind Attack'
The Hindustan Times, Dec 16, 2001: Neeta Sharma and Arun Joshi

"In Delhi, the Special Cell detectives detained a Lecturer in Arabic, who
teaches at Zakir Hussain College (Evening)...after it was established that
he had received a call made by militants on his mobile phone." Another
column in the same paper said: "Terrorists spoke to him before the attack
and the lecturer made a phone call to Pakistan after the strike."

'DU Lecturer was terror plan hub'
The Times of India, Dec 17, 2001

"The attack on Parliament on December 13 was a joint operation of the
Jaish-e-Mohammed (JeM) and Lashkar-e-Toiba (LeT) terrorist groups in
which a Delhi University lecturer, Syed A.R.Gilani, was one of the key
facilitators in Delhi, Police Commissioner Ajai Raj Sharma said on Sunday."

'Varsity don guided fidayeen'
The Hindu, Dec 17, 2001: Devesh K. Pandey

"During interrogation Geelani disclosed that he was in the know of the
conspiracy since the day the 'fidayeen' attack was planned."

'Don lectured on terror in free time'
The Hindustan Times, Dec 17, 2001: Sutirtho Patranobis

"Investigations have revealed that by evening he was at the college
teaching Arabic literature. In his free time, behind closed doors, either at his
house or at Shaukat Hussain's, another suspect to be arrested, he took
and gave lessons on terrorism..."

'Professor's proceeds'
The Hindustan Times, Dec 17, 2001

"Geelani recently purchased a house for 22 lakhs in West Delhi. Delhi
Police are investigating how he came upon such a windfall...".

'Aligarh se England tak chaatron mein aatankwaad ke beej bo raha tha
Geelani (From Aligarh to England Geelani sowed the seeds of terrorism)
Rashtriya Sahara, Dec 18, 2001: Sujit Thakur

Trans: "...According to sources and information collected by investigation
agencies, Geelani has made a statement to the police that he was an agent
of Jaish-e-Mohammed for a long time.... It was because of Geelani's
articulation, style of working and sound planning that in 2000 Jaish-e-
Mohammed gave him the responsibility of spreading intellectual terrorism."

'Terror suspect frequent visitor to Pak mission'
The Hindustan Times, Dec 21, 2001: Swati Chaturvedi

"During interrogation, Geelani has admitted that he had made frequent calls
to Pakistan and was in touch with militants belonging to Jaish-e-
Mohammed...Geelani said that he had been provided with funds by some
members of the Jaish and told to buy two flats that could be used in militant
operations."

'Person of the Week'
Sunday Times of India, Dec 23, 2001:

"A cellphone proved his undoing. Delhi University's Syed A.R. Geelani was
the first to be arrested in the December 13 case-a shocking reminder that
the roots of terrorism go far and deep..."

Zee TV trumped them all. It produced a film called December 13th, a
'docudrama' that claimed to be the 'truth based on the police chargesheet'.
(A contradiction in terms, wouldn't you say?) The film was privately
screened for Prime Minister A.B. Vajpayee and Home Minister L.K. Advani.
Both men applauded the film. Their approbation was widely reported by the
media.

The Supreme Court dismissed an appeal to stay the broadcast of the film
on the grounds that judges are not influenced by the media. (Would the
Supreme Court concede that even if judges are beyond being influenced by
media reports, the 'collective conscience of the society' might not be?)
December 13th was broadcast on Zee TV's national network a few days
before the fast-track trial court sentenced Geelani, Afzal and Shaukat to
death. Geelani eventually spent 18 months in jail, many of them in solitary
confinement on death row.

He was released when the high court acquitted him and Afsan Guru.
(Afsan, who was pregnant when she was arrested, had her baby in prison.
Her experience broke her. She now suffers from a serious psychotic
condition.) The Supreme Court upheld the acquittal. It found absolutely no
evidence to link Geelani with the Parliament attack or with any terrorist
organisation. Not a single newspaper or journalist or TV channel has seen
fit to apologise to Geelani for their lies. But S.A.R.Geelani's troubles didn't
end there. His acquittal left the Special Cell with a plot, but no 'mastermind'.
This, as we shall see, becomes something of a problem. More importantly,
Geelani was a free man now-free to meet the press, talk to lawyers, clear
his name. On the evening of February 8, 2005, during the course of the
final hearings at the Supreme Court, Geelani was making his way to his
lawyer's house. A mysterious gunman appeared from the shadows and
fired five bullets into his body. Miraculously, he survived. It was an
unbelievable new twist to the story. Clearly somebody was worried about
what he knew, what he would say.... One would imagine that the police
would give this investigation top priority, hoping it would throw up some vital
new leads into the Parliament attack case. Instead, the Special Cell treated
Geelani as though he was the prime suspect in his own assassination.
They confiscated his computer and took away his car. Hundreds of activists
gathered outside the hospital and called for an enquiry into the
assassination attempt, which would include an investigation into the Special
Cell itself. (Of course that never happened. More than a year has passed,
nobody shows any interest in pursuing the matter. Odd.)

---------------

So here he was now, S.A.R. Geelani, having survived this terrible ordeal,
standing up in public at Jantar Mantar, saying that Mohammed Afzal didn't
deserve a death sentence. How much easier it would be for him to keep his
head down, stay at home. I was profoundly moved, humbled, by this quiet
display of courage.

Across the line from S.A.R. Geelani, in the jostling crowd of journalists and
photographers, trying his best to look inconspicuous in a lemon T-shirt and
gaberdine pants, holding a little tape-recorder, was another Gilani. Iftikhar
Gilani. He had been in prison too. He was arrested and taken into police
custody on June 9, 2002. At the time he was a reporter for the Jammu-
based Kashmir Times. He was charged under the Official Secrets Act. His
'crime' was that he possessed obsolete information on Indian troop
deployment in 'Indian-held Kashmir'. (This 'information', it turns out, was a
published monograph by a Pakistani research institute, and was freely
available on the Internet for anybody who wished to download it. ) Iftikhar
Gilani's computer was seized. IB officials tampered with his hard drive,
meddled with the downloaded file, changed the words 'Indian-held Kashmir'
to 'Jammu and Kashmir' to make it sound like an Indian document, and
added the words 'Only for Reference. Strictly Not For Circulation', to make
it seem like a secret document smuggled out of the home ministry. The
directorate general of military intelligence-though it had been given a
photocopy of the monograph-ignored repeated appeals from Iftikhar
Gilani's counsel, kept quiet, and refused to clarify the matter for a whole six
months.

Once again the malicious lies put out by the Special Cell were obediently
reproduced in the newspapers. Here are a few of the lies they told:

"Iftikhar Gilani, 35-year-old son-in-law of Hurriyat hardliner Syed Ali Shah
Geelani, is believed to have admitted in a city court that he was an agent of
Pakistan's spy agency." -- The Hindustan Times, June, 11, 2002: Neeta
Sharma

"Iftikhar Gilani was the pin-point man of Syed Salahuddin of Hizbul
Mujahideen. Investigations have revealed that Iftikhar used to pass
information to Salahuddin about the moves of Indian security agencies.He
had camouflaged his real motives behind his journalist's facade so well that
it took years to unmask him, well-placed sources said." -- The Pioneer,
Pramod Kumar Singh

"Geelani ke damaad ke ghar aaykar chhaapon mein behisaab sampati wa
samwaidansheil dastaweiz baramad" (Enormous wealth and sensitive
documents recovered from the house of Geelani's son-in-law during
income tax raids) -- Hindustan, June 10, 2002

Never mind that the police chargesheet recorded a recovery of only Rs
3,450 from his house.

Meanwhile, other media reports said that he had a three-bedroom flat, an
undisclosed income of Rs 22 lakh, had evaded income tax of Rs 79 lakh,
that he and his wife were absconding to evade arrest.

But arrested he was. In jail, Iftikhar Gilani was beaten, abjectly humiliated.
In his book My Days In Prison he tells of how, among other things, he was
made to clean the toilet with his shirt and then wear the same shirt for days.
After six months of court arguments and lobbying by his colleagues, when it
became obvious that if the case against him continued it would lead to
serious embarrassment, he was released.

Here he was now. A free man, a reporter come to Jantar Mantar to cover a
story. It occurred to me that S.A.R. Geelani, Iftikhar Gilani and Mohammed
Afzal would have been in Tihar jail at the same time. (Along with scores of
other less well known Kashmiris whose stories we may never learn.)

It can and will be argued that the cases of both S.A.R. Geelani and Iftikhar
Gilani serve only to demonstrate the objectivity of the Indian judicial system
and its capacity for self-correction, they do not discredit it. That's only partly
true. Both Iftikhar Gilani and S.A.R. Geelani are fortunate to be Delhi-based
Kashmiris with a community of articulate, middle-class peers; journalists
and university teachers, who knew them well and rallied around them in
their time of need. S.A.R. Geelani's lawyer Nandita Haksar put together an
All India Defence Committee for S.A.R. Geelani (of which I was a member).
There was a coordinated campaign by activists, lawyers and journalists to
rally behind Geelani. Well-known lawyers Ram Jethmalani, K.G.
Kannabiran, Vrinda Grover represented him. They showed up the case for
what it was-a pack of absurd assumptions, suppositions, and outright lies,
bolstered by fabricated evidence. So of course judicial objectivity exists. But
it's a shy beast that lives somewhere deep in the labyrinth of our legal
system. It shows itself rarely. It takes whole teams of top lawyers to coax it
out of its lair and make it come out and play. It's what in newspaper-speak
would be called a Herculean task. Mohammed Afzal did not have Hercules
on his side.

For five months, from the time he was arrested to the day the police
charge-sheet was filed, Mohammed Afzal, lodged in a high-security prison,
had no legal defence, no legal advice. No top lawyers, no defence
committee (in India or Kashmir), and no campaign. Of all the four accused,
he was the most vulnerable. His case was far more complicated than
Geelani's. Significantly, during much of this time, Afzal's younger brother
Hilal was illegally detained by the Special Operations Group (SOG) in
Kashmir. He was released after the chargesheet was filed. (This is a piece
of the puzzle that will only fall into place as the story unfolds.)

In a serious lapse of procedure, on December 20, 2001, the investigating
officer, Asst Commissioner of Police (ACP) Rajbir Singh (affectionately
known as Delhi's 'encounter specialist' for the number of 'terrorists' he has
killed in 'encounters'), called a press conference at the Special Cell.
Mohammed Afzal was made to 'confess' before the media. Deputy
commissioner of police (DCP) Ashok Chand told the press that Afzal had
already confessed to the police.This turned out to be untrue. Afzal's formal
confession to the police took place only the next day (after which he
continued to remain in police custody and vulnerable to torture, another
serious procedural lapse). In his media 'confession' Afzal incriminated
himself in the Parliament attack completely.

During the course of this 'media confession' a curious thing happened. In
an answer to a direct question, Afzal clearly said that Geelani had nothing
to do with the attack and was completely innocent. At this point, ACP Rajbir
Singh shouted at him and forced him to shut up, and requested the media
not to carry this part of Afzal's 'confession'. And they obeyed! The story
came out only three months later when the television channel Aaj Tak re-
broadcast the 'confession' in a programme called Hamle Ke Sau Din
(Hundred Days of the Attack) and somehow kept this part in. Meanwhile in
the eyes of the general public-who know little about the law and criminal
procedure-Afzal's public 'confession' only confirmed his guilt. The verdict
of the 'collective conscience of society' would not have been hard to second
guess.

The day after this 'media' confession, Afzal's 'official' confession was
extracted from him. The flawlessly structured, perfectly fluent narrative
dictated in articulate English to DCP Ashok Chand (in the DCP's words, "he
kept on narrating and I kept on writing") was delivered in a sealed envelope
to a judicial magistrate. In this confession, Afzal, now the sheet-anchor of
the prosecution's case, weaves a masterful tale that connected Ghazi
Baba, Maulana Masood Azhar, a man called Tariq, and the five dead
terrorists; their equipment, arms and ammunition, home ministry passes, a
laptop, and fake ID cards; detailed lists of exactly how many kilos of what
chemical he bought from where, the exact ratio in which they were mixed to
make explosives; and the exact times at which he made and received calls
on which mobile number. (For some reason, by then Afzal had also
changed his mind about Geelani and implicated him completely in the
conspiracy.)

Each point of the 'confession' corresponded perfectly with the evidence that
the police had already gathered. In other words, Afzal's confessional
statement slipped perfectly into the version that the police had already
offered the press days ago, like Cinderella's foot into the glass slipper. (If it
were a film, you could say it was a screenplay, which came with its own box
of props. Actually, as we know now, it was made into a film. Zee TV owes
Afzal some royalty payments. )

Eventually, both the high court and the Supreme Court set aside Afzal's
confession citing 'lapses and violations of procedural safeguards'. But
Afzal's confession somehow survives, the phantom keystone in the
prosecution's case. And before it was technically and legally set aside, the
confessional document had already served a major extra-legal purpose: On
December 21, 2001, when the Government of India launched its war effort
against Pakistan it said it had 'incontrovertible evidence' of Pakistan's
involvement. Afzal's confession was the only 'proof' of Pakistan's
involvement that the government had! Afzal's confession. And the sticker-
manifesto.Think about it. On the basis of this illegal confession extracted
under torture, hundreds of thousands of soldiers were moved to the
Pakistan border at huge cost to the public exchequer, and the subcontinent
devolved into a game of nuclear brinkmanship in which the whole world
was held hostage.

Big Whispered Question: Could it have been the other way around? Did the
confession precipitate the war, or did the need for a war precipitate the
need for the confession?

Later, when Afzal's confession was set aside by the higher courts, all talk of
Jaish-e-Mohammed and Lashkar-e-Taiba ceased. The only other link to
Pakistan was the identity of the five dead fidayeen. Mohammed Afzal, still
in police custody, identified them as Mohammed, Rana, Raja, Hamza and
Haider. The home minister said they "looked like Pakistanis", the police
said they were Pakistanis, the trial court judge said they were Pakistanis.
And there the matter rests. Had we been told that their names were Happy,
Bouncy, Lucky, Jolly and Kidingamani from Scandinavia, we would have
had to accept that too. We still don't know who they really are, or where
they're from. Is anyone curious? Doesn't look like it. The high court said the
"identity of the five deceased thus stands established. Even otherwise it
makes no difference. What is relevant is the association of the accused
with the said five persons and not their names."

In his Statement of the Accused (which, unlike the confession, is made in
court and not police custody) Afzal says: "I had not identified any terrorist.
Police told me the names of terrorists and forced me to identify them." But
by then it was too late for him. On the first day of the trial, the lawyer
appointed by the trial court judge agreed to accept Afzal's identification of
the bodies and the postmortem reports as undisputed evidence without
formal proof! This baffling move was to have serious consequences for
Afzal. To quote from the Supreme Court judgement, "The first
circumstance against the accused Afzal is that Afzal knew who the
deceased terrorists were. He identified the dead bodies of the deceased
terrorists. On this aspect the evidence remains unshattered."

Of course it's possible that the dead terrorists were foreign militants. But it
is just as possible that they were not. Killing people and falsely identifying
them as 'foreign terrorists', or falsely identifying dead people as 'foreign
terrorists', or falsely identifying living people as terrorists, is not uncommon
among the police or security forces either in Kashmir or even on the streets
of Delhi.

The best known among the many well-documented cases in Kashmir, one
that went on to become an international scandal, is the killing that took
place after the Chhittisinghpura massacre. On the night of April 20, 2000,
just before the US President Bill Clinton arrived in New Delhi, 35 Sikhs
were killed in the village of Chhittisinghpura by 'unidentified gunmen'
wearing Indian Army uniforms. (In Kashmir many people suspected that
Indian security forces were behind the massacre.) Five days later the SOG
and the 7th Rashtriya Rifles, a counter-insurgency unit of the army, killed
five people in a joint operation outside a village called Pathribal. The next
morning they announced that the men were the Pakistan-based foreign
militants who had killed the Sikhs in Chhittisinghpura. The bodies were
found burned and disfigured. Under their (unburned) army uniforms, they
were in ordinary civilian clothes.It turned out that they were all local people,
rounded up from Anantnag district and brutally killed in cold blood.

There are others:

---------------

On October 20, 2003, the Srinagar newspaper Al-safa printed a picture of a
'Pakistani militant' who the 18 Rashtriya Rifles claimed they had killed while
he was trying to storm an army camp. A baker in Kupwara, Wali Khan, saw
the picture and recognised it as his son, Farooq Ahmed Khan, who had
been picked up by soldiers in a Gypsy two months earlier. His body was
finally exhumed more than a year later.

On April 20, 2004, the 18 Rashtriya Rifles posted in the Lolab valley
claimed it had killed four foreign militants in a fierce encounter. It later
turned out that all four were ordinary labourers from Jammu, hired by the
army and taken to Kupwara. An anonymous letter tipped off the labourers'
families who travelled to Kupwara and eventually had the bodies exhumed.

On November 9, 2004, the army showcased 47 surrendered 'militants' to
the press at Nagrota, Jammu, in the presence of the General Officer
Commanding XVI, Corps and the Director General of Police, J&K. The J&K
police later found that 27 of them were just unemployed men who had been
given fake names and fake aliases and promised government jobs in return
for playing their part in the charade.

These are just a few quick examples to illustrate the fact that in the
absence of any other evidence, the police's word is just not good enough.

The hearings in the fast-track trial court began in May 2002. Let's not forget
the climate in which the trial took place. The frenzy over the 9/11 attacks
was still in the air. The US was gloating over its victory in Afghanistan.
Gujarat was convulsed by communal frenzy. A few months previously,
coach S-6 of the Sabarmati Express had been set on fire and 58 Hindu
pilgrims had been burned alive inside. As 'revenge' in an orchestrated
pogrom, more than 2,000 Muslims were publicly butchered and more than
1,50,000 driven from their homes.

For Afzal, everything that could go wrong went wrong. He was incarcerated
in a high-security prison, with no access to the outside world, and no money
to hire a lawyer professionally. Three weeks into the trial the lawyer
appointed by the court asked to be discharged from the case because she
had now been professionally hired to be on the team of lawyers for S.A.R.
Geelani's defence. The court appointed her junior, a lawyer with very little
experience, to represent Afzal. He did not once visit his client in jail to take
instructions. He did not summon a single witness for Afzal's defence and
barely cross-questioned any of the prosecution witnesses. Five days after
he was appointed, on July 8, Afzal asked the court for another lawyer and
gave the court a list of lawyers whom he hoped the court might hire for him.
Each of them refused. (Given the frenzy of propaganda in the media, it was
hardly surprising. At a later stage of the trial, when senior advocate Ram
Jethmalani agreed to represent Geelani, Shiv Sena mobs ransacked his
Bombay office.) The judge expressed his inability to do anything about this,
and gave Afzal the right to cross-examine witnesses. It's astonishing for the
judge to expect a layperson to be able cross-examine witnesses in a
criminal trial. It's a virtually impossible task for someone who does not have
a sophisticated understanding of criminal law, including new laws that had
just been passed, like POTA, and the amendments to the Evidence Act and
the Telegraph Act. Even experienced lawyers were having to work overtime
to bring themselves up to date.

The case against Afzal was built up in the trial court on the strength of the
testimonies of almost 80 prosecution witnesses: landlords, shopkeepers,
technicians from cell-phone companies, the police themselves.This was a
crucial period of the trial, when the legal foundation of the case was being
laid. It required meticulous back-breaking legal work in which evidence
needed to be amassed and put on record, witnesses for the defence
summoned and testimonies from prosecution witnesses cross-questioned.
Even if the verdict of the trial court went against the accused (trial courts
are notoriously conservative), the evidence could then be worked upon by
lawyers in the higher courts. Through this absolutely critical period, Afzal
went virtually undefended. It was at this stage that the bottom fell out of his
case, and the noose tightened around his neck.

Even still, during the trial, the skeletons began to clatter out of the Special
Cell's cupboard in an embarrassing heap. It became clear that the
accumulation of lies, fabrications, forged documents and serious lapses in
procedure began from the very first day of the investigation. While the high
court and Supreme Court judgements have pointed these things out, they
have just wagged an admonitory finger at the police, or occasionally called
it a 'disturbing feature', which is a disturbing feature in itself. At no point in
the trial has the police been seriously reprimanded, leave alone penalised.
In fact, almost every step of the way, the Special Cell displayed an
egregious disregard for procedural norms. The shoddy callousness with
which the investigations were carried out demonstrate a worrying belief that
they wouldn't be 'found out,' and if they were, it wouldn't matter very much.
Their confidence does not seem to have been misplaced.

There is fudging in almost every part of the investigation.

Consider the Time and Place of the Arrests and Seizures: The Delhi Police
said that Afzal and Shaukat were arrested in Srinagar based on information
given to them by Geelani following his arrest. The court records show that
the message to look out for Shaukat and Afzal was flashed to the Srinagar
police on December 15 at 5.45 am. But according to the Delhi Police's
records Geelani was only arrested in Delhi on December 15 at 10 am-four
hours after they had started looking for Afzal and Shaukat in Srinagar. They
haven't been able to explain this discrepancy. The high court judgement
puts it on record that the police version contains a 'material contradiction'
and cannot be true. It goes down as a 'disturbing feature.' Why the Delhi
Police needed to lie remains unasked, and unanswered.

When the police arrest somebody, procedure requires them to have public
witnesses for the arrest who sign an Arrest Memo and a Seizure Memo for
what they may have 'seized' from those who have been arrested-goods,
cash, documents, whatever. The police claim they arrested Afzal and
Shaukat together on December 15 at 11 am in Srinagar. They say they
'seized' the truck the two men were fleeing in (it was registered in the name
of Shaukat's wife). They also say they seized a Nokia mobile phone, a
laptop and Rs 10 lakh from Afzal. In his Statement of the Accused, Afzal
says he was arrested at a bus stop in Srinagar and that no laptop, mobile
phone or money was 'seized' from him.

---------------

Scandalously, the Arrest Memos for both Afzal and Shaukat have been
signed in Delhi, by Bismillah, Geelani's younger brother, who was at the
time being held in illegal confinement at the Lodhi Road Police Station.
Meanwhile, the two witnesses who signed the seizure memo for the phone,
the laptop and the Rs 10 lakh are both from the J&K Police. One of them is
Head Constable Mohammed Akbar (Prosecution Witness 62) who, as we
shall see later, is no stranger to Mohammad Afzal, and is not just any old
policeman who happened to be passing by. Even by the J&K Police's own
admission they first located Afzal and Shaukat in Parimpura Fruit Mandi.For
reasons they don't state, the police didn't arrest them there. They say they
followed them to a less public place-where there were no public
witnesses.

So here's another serious inconsistency in the prosecution's case. Of this
the high court judgement says 'the time of arrest of accused persons has
been seriously dented'. Shockingly, it is at this contested time and place of
arrest that the police claim to have recovered the most vital evidence that
implicates Afzal in the conspiracy: the mobile phone and the laptop. Once
again, in the matter of the date and time of the arrests, and in the alleged
seizure of the incriminating laptop and the Rs 10 lakh, we have only the
word of the police, against the word of a 'terrorist'.

The Seizures Continued: The seized laptop, the police said, contained the
files that created the fake home ministry pass and the fake identity cards. It
contained no other useful information. They claimed that Afzal was carrying
it to Srinagar in order to return it to Ghazi Baba. The Investigating Officer,
ACP Rajbir Singh, said that the hard disk of the computer had been sealed
on January 16, 2002 (a whole month after the seizure). But the computer
shows that it was accessed even after that date. The courts have
considered this but taken no cognisance of it. (On a speculative note, isn't it
strange that the only incriminating information found on the computer were
the files used to make the fake passes and ID cards? And a Zee TV film
clip showing the Parliament Building. If other incriminating information had
been deleted, why wasn't this? And why did Ghazi Baba, Chief of
Operations of an international terrorist organisation, need a laptop-with
bad artwork on it- so urgently?)

Consider the Mobile phone call records: Stared at for long enough, a lot of
the 'hard evidence' produced by the Special Cell begins to look dubious.
The backbone of the prosecution's case has to do with the recovery of
mobile phones, SIM cards, computerised call records, and the testimonies
of officials from cellphone companies and shopkeepers who sold the
phones and SIM cards to Afzal and his accomplices. The call records that
were produced to show that Shaukat, Afzal, Geelani and Mohammad (one
of the dead militants) had all been in touch with each other very close to the
time of the attack were uncertified computer printouts, not even copies of
primary documents. They were outputs of the billing system stored as text
files that could have been easily doctored and at any time. For example, the
call records that were produced show that two calls had been made at
exactly the same time from the same SIM card, but from separate handsets
with separate IMEI numbers. This means that either the SIM card had been
cloned or the call records were doctored.

Consider the SIM card: To prop up its version of the story, the prosecution
relies heavily on one particular mobile phone number-9811489429. The
police say it was Afzal's number-the number that connected Afzal to
Mohammad, Afzal to Shaukat, and Shaukat to Geelani. The police also say
that this number was written on the back of the identity tags found on the
dead terrorists. Pretty convenient. Lost Kitten! Call Mom at 9811489429.
(It's worth mentioning that normal procedure requires evidence gathered at
the scene of a crime to be sealed.The ID cards were never sealed and
remained in the custody of the police and could have been tampered with
at any time.)

The only evidence the police have that 9811489429 was indeed Afzal's
number is Afzal's confession, which as we have seen is no evidence at all.
The SIM card has never been found. The police produced a prosecution
witness, Kamal Kishore, who identified Afzal and said that he had sold him
a Motorola phone and a SIM card on December 4, 2001. However, the call
records the prosecution relied on show that that particular SIM card was
already in use on the November 6, a whole month before Afzal is supposed
to have bought it! So either the witness is lying, or the call records are false.
The high court glosses over this discrepancy by saying that Kamal Kishore
had only said that he sold Afzal a SIM card, not this particular SIM card.
The Supreme Court judgement loftily says "The SIM card should
necessarily have been sold to Afzal prior to 4.12.2001." And that, my
friends, is that.

Consider the Identification of the Accused: A series of prosecution
witnesses, most of them shopkeepers, identified Afzal as the man to whom
they had sold various things: ammonium nitrate, aluminum powder,
sulphur, a Sujata mixer-grinder, packets of dry fruit and so on. Normal
procedure would require these shopkeepers to pick Afzal out from a
number of people in a test identification parade. This didn't happen. Instead
Afzal was identified by them when he 'led' the police to these shops while
he was in police custody and introduced to the witnesses as an Accused in
the Parliament Attack. (Are we allowed to speculate about whether he led
the police or the police led him to the shops? After all he was still in their
custody, still vulnerable to torture. If his confession under these
circumstances is legally suspect, then why not all of this?)

The judges have pondered the violation of these procedural norms but
have not taken them very seriously. They said that they did not see why
ordinary members of the public would have reason to falsely implicate an
innocent person. But does this hold true, given the orgy of media
propaganda that ordinary members of the public were subjected to,
particularly in this case? Does this hold true, if you take into account the
fact that ordinary shopkeepers, particularly those who sell electronic goods
without receipts in the 'grey market', are completely beholden to the Delhi
Police?

None of the inconsistencies that I have written about so far are the result of
spectacular detective work on my part. A lot of them are documented in an
excellent book called December 13th: Terror Over Democracy by
Nirmalangshu Mukherji; in two reports (Trial of Errors and Balancing Act)
published by the Peoples' Union for Democratic Rights, Delhi; and most
important of all, in the three thick volumes of judgements of the trial court,
the high court and the Supreme Court. All these are public documents,
lying on my desk. Why is it that when there is this whole murky universe
begging to be revealed, our TV channels are busy staging hollow debates
between uninformed people and grasping politicians? Why is it that apart
from a few sporadic independent commentators, our newspapers carry
front-page stories about who the hangman is going to be, and macabre
details about the length (60 metres) and weight (3.75 kg) of the rope that
will be used to hang Mohammed Afzal (Indian Express, October 16,
2006).Shall we pause for a moment to say a few hosannas for the Free
Press?

It's not an easy thing for most people to do, but if you can, unmoor yourself
conceptually, if only for a moment, from the "Police is Good/Terrorists are
Evil" ideology. The evidence on offer minus its ideological trappings opens
up a chasm of terrifying possibilities. It points in directions which most of us
would prefer not to look.

The prize for the Most Ignored Legal Document in the entire case goes to
the Statement of the Accused Mohammed Afzal under Section 313 of the
Criminal Procedure Code. In this document, the evidence against him is put
to him by the court in the form of questions. He can either accept the
evidence or dispute it, and has the opportunity to put down his version of
his story in his own words. In Afzal's case, given that he has never had any
real opportunity to be heard, this document tells his story in his voice.

---------------

In this document, Afzal accepts certain charges made against him by the
prosecution. He accepts that he met a man called Tariq. He accepts that
Tariq introduced him to a man called Mohammad. He accepts that he
helped Mohammad come to Delhi and helped him to buy a second-hand
white Ambassador car. He accepts that Mohammad was one of the five
fidayeen who was killed in the Attack. The important thing about Afzal's
Statement of the Accused is that he makes no effort to completely absolve
himself or claim innocence. But he puts his actions in a context that is
devastating. Afzal's statement explains the peripheral part he played in the
Parliament attack. But it also ushers us towards an understanding of some
possible reasons for why the investigation was so shoddy, why it pulls up
short at the most crucial junctures and why it is vital that we do not dismiss
this as just incompetence and shoddiness. Even if we don't believe Afzal,
given what we do know about the trial and the role of the Special Cell, it is
inexcusable not to look in the direction he's pointing. He gives specific
information-names, places, dates. (This could not have been easy, given
that his family, his brothers, his wife and young son live in Kashmir and are
easy meat for the people he mentions in his deposition.)

In Afzal's words:

"I live in Sopre J&K and in the year 2000 when I was there Army used to
harass me almost daily, then said once a week. One Raja Mohan Rai used
to tell me that I should give information to him about militants. I was a
surrendered militant and all militants have to mark Attendance at Army
Camp every Sunday. I was not being physically torture by me. He used to
only just threatened me. I used to give him small information which I used
to gather from newspaper, in order to save myself. In June/ July 2000 I
migrated from my village and went to town Baramullah. I was having a shop
of distribution of Surgical instruments which I was running on commission
basis. One day when I was going on my scooter S.T.F (State Task Force)
people came and picked me up and they continuously tortured me for five
days. Somebody had given information to S.T.F that I was again indulging
in militant activities. That person was confronted with me and released in
my presence. Then I was kept by them in custody for about 25 days and I
got myself released by paying Rs 1 lakh. Special Cell People had confirmed
this incident. Thereafter I was given a certificate by the S.T.F and they
made me a Special Police Officer for six months. They were knowing I will
not work for them. Tariq met me in Palhalan S.T.F camp where I was in
custody of S.T.F. Tariq met me later on in Sri Nagar and told me he was
basically working for S.T.F.I told him I was also working for S.T.F.
Mohammad who was killed in Attack on Parliament was along with Tariq.
Tariq told me he was from Keran sector of Kashmir and he told me that I
should take Mohammad to Delhi as Mohammad has to go out of country
from Delhi after some time. I don't know why I was caught by the police of
Sri Nagar on 15.12.2001. I was boarding bus at Sri Nagar bus stop, for
going home when police caught me. Witness Akbar who had deposed in
the court that he had apprehended Shaukat and me in Sri Nagar had
conducted a raid at my shop about a year prior to December 2001 and told
me that I was selling fake surgical instruments and he took Rs 5000/- from
me. I was tortured at Special Cell and one Bhoop Singh even compelled
me to take urine and I saw family of S. A.R. Geelani also there, Geelani
was in miserable condition. He was not in a position to stand. We were
taken to Doctor for examination but instructions used to be issued that we
have to tell Doctor that everything was alright with a threat that if we do not
do so we be again tortured."

He then asks the court's permission to add some more information.

"Mohammad the slain terrorist of Parliament attack had come along with
me from Kashmir. The person who handed him over to me is Tariq. Tariq is
working with Security Force and S.T.F JK Police. Tariq told me that if I face
any problem due to Mohammad he will help me as he knew the security
forces and S.T.F very well... Tariq had told me that I just have to drop
Mohammad at Delhi and do nothing else. And if I would not take
Mohammad with me to Delhi I would be implicated in some other case. I
under these circumstances brought Mohammad to Delhi under a
compulsion without knowing he was a terrorist."

So now we have a picture emerging of someone who could be a key player.
'Witness Akbar' (PW 62), Mohd Akbar, Head Constable, Parimpora Police
Station, the J&K policeman who signed the Seizure Memo at the time of
Afzal's arrest. In a letter to Sushil Kumar, his Supreme Court lawyer, Afzal
describes a chilling moment at one point in the trial. In the court, Witness
Akbar, who had come from Srinagar to testify about the Seizure Memo,
reassured Afzal in Kashmiri that "his family was alright". Afzal immediately
recognised that this was a veiled threat. Afzal also says that after he was
arrested in Srinagar he was taken to the Parimpora police station and
beaten, and plainly told that his wife and family would suffer dire
consequences if he did not co-operate. (We already know that Afzal's
brother Hilal had been held in illegal detention by the SOG during some
crucial months.)

In this letter, Afzal describes how he was tortured in the STF camp-with
electrodes on his genitals and chillies and petrol in his anus. He mentions
the name of Dy Superintendent of Police Dravinder Singh who said he
needed him to do a 'small job' for him in Delhi. He also says that some of
the phone numbers mentioned in the chargesheet can be traced to an STF
camp in Kashmir.

It is Afzal's story that gives us a glimpse into what life is really like in the
Kashmir Valley. It's only in the Noddy Book version we read about in our
newspapers that Security Forces battle Militants and innocent Kashmiris
are caught in the cross-fire. In the adult version, Kashmir is a valley awash
with militants, renegades, security forces, double-crossers, informers,
spooks, blackmailers, blackmailees, extortionists, spies, both Indian and
Pakistani intelligence agencies, human rights activists, NGOs and
unimaginable amounts of unaccounted-for money and weapons.There are
not always clear lines that demarcate the boundaries between all these
things and people, it's not easy to tell who is working for whom.

Truth, in Kashmir, is probably more dangerous than anything else. The
deeper you dig, the worse it gets. At the bottom of the pit is the SOG and
STF that Afzal talks about. These are the most ruthless, indisciplined and
dreaded elements of the Indian security apparatus in Kashmir. Unlike the
more formal forces, they operate in a twilight zone where policemen,
surrendered militants, renegades and common criminals do business. They
prey upon the local population, particularly in rural Kashmir. Their primary
victims are the thousands of young Kashmiri men who rose up in revolt in
the anarchic uprising of the early '90s and have since surrendered and are
trying to live normal lives.

In 1989, when Afzal crossed the border to be trained as a militant, he was
only 20 years old. He returned with no training, disillusioned with his
experience. He put down his gun and enrolled himself in Delhi University. In
1993 without ever having been a practising militant, he voluntarily
surrendered to the Border Security Force (BSF). Illogically enough, it was at
this point that his nightmares began. His surrender was treated as a crime
and his life became a hell. Can young Kashmiri men be blamed if the
lesson they draw from Afzal's story is that it would be not just stupid, but
insane to surrender their weapons and submit to the vast range of myriad
cruelties the Indian State has on offer for them?

The story of Mohammed Afzal has enraged Kashmiris because his story is
their story too. What has happened to him could have happened, is
happening and has happened to thousands of young Kashmiri men and
their families. The only difference is that their stories are played out in the
dingy bowels of joint interrogation centres, army camps and police stations
where they have been burned, beaten, electrocuted, blackmailed and killed,
their bodies thrown out of the backs of trucks for passers-by to find.
Whereas Afzal's story is being performed like a piece of medieval theatre
on the national stage, in the clear light of day, with the legal sanction of a
'fair trial', the hollow benefits of a 'free press' and all the pomp and
ceremony of a so-called democracy.

If Afzal is hanged, we'll never know the answer to the real question: Who
attacked the Indian Parliament? Was it the Lashkar-e-Toiba? The Jaish-e-
Mohammed? Or does the answer lie somewhere deep in the secret heart
of this country that we all live in and love and hate in our own beautiful,
intricate, various, and thorny ways?

There ought to be a Parliamentary Inquiry into the December 13 attack on
Parliament. While the inquiry is pending, Afzal's family in Sopore must be
protected because they are vulnerable hostages in this bizarre story.

To hang Mohammed Afzal without knowing what really happened is a
misdeed that will not easily be forgotten. Or forgiven. Nor should it be.

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