A. G. NOORANI
(The execution of Mohammed Afzal Guru, in Tihar Jail in New Delhi on 9 February 2013, after a sham trial in which he was undefended, fits the description of a political trial aimed to eliminate one whom the powers that be were resolved to eliminate with utter lack of decency. He was executed in secret to prevent his family from approaching the courts for a stay while his petition for a transfer to a jail in Srinagar was pending.
The brief facts of the case are discussed in this article – Author)
“History bears witness that whenever the rulers took up arms against truth and justice, the court rooms served as the most convenient and plausible weapons. The authority of courts of law is a force which can be used for, both, justice and injustice. In the hands of a just government it becomes the best instrument for attaining right and justice. But for a tyrannical and repressive government, there is no better weapon for wreaking vengeance and perpetrating injustice. Next to battlefields, it is in the court rooms that some of the greatest acts of injustice in the history of the world have taken place.” Maulana Abul Kalam Azad’s statement in Urdu at his trial in Calcutta on 11 January 1922, translated by the writer. (A.G. Noorani, Indian Political Trials 1975-1947; Oxford University Press; 2005; p. 217).
The execution of Mohammed Afzal Guru, in Tihar Jail in New Delhi on 9 February 2013, after a sham trial in which he was undefended, fits the description of a political trial aimed to eliminate one whom the powers that be were resolved to eliminate with utter lack of decency. He was executed in secret to prevent his family from approaching the courts for a stay while his petition for a transfer to a jail in Srinagar was pending.
The brief facts of the case are these. On 13 December 2001, there was an attack by five armed men on the Parliament. The five were killed. Four persons were tried as conspirators in the attack – Mohammed Afzal, Syed Abdul Rehman Geelani, Shaukat Hussain Guru and his wife Afsan Guru. The police said that they and Mohammed Masood Azhar, Ghazi Baba and Tariq Ahmed along with Mohammad Haider, Hamza, Raja and Rana (all Pak nationals and deceased terrorists in the attack on the Parliament) and some other unknown persons, hatched up a conspiracy to wage war against India and to commit terrorist attacks.
The trial court sentenced Mohammed Afzal, Geelani and Shaukat Hussain to death on two counts and life on several more while Afsan Guru was sentenced to five years imprisonment for concealing knowledge of a conspiracy. The Delhi High Court acquitted Geelani and Afsan Guru. In the case of Shaukat Hussain and Mohammed Afzal, the High Court, citing the threat of “imminent war”, enhanced the life sentence awarded on the charge of “waging war” to a death sentence. The Supreme Court acquitted Shaukat Hussain of all charges, but convicted him on the lesser charge of concealing knowledge of a conspiracy and sentenced him to 10 years. Mohammed Afzal’s death sentence was upheld on two counts. (Vide Anjali Modi’s excellent study on Chronicle of a Death Foretold : The Story of Mohammad Afzal; Economic & Political Weekly; 16 March 2013).
The BJP regime’s Union Home Minister L. K. Advani, then in power, said that the five “looked like Pakistanis”. The Union Cabinet declared in a resolution “We will liquidate the terrorists and their sponsors wherever they are, whosoever they are.” The High Commissioner to Pakistan, Vijay Nambiar, one of the best to have served there, was recalled. Half a million soldiers were massed on the international border and the Line of Control in Kashmir. Crores were lost in Operation Parakrama, which ended as farcically as it had begun (Lt. Gen (Retd.) V.K. Sood and Pravin Sawhney, Operation Parakram : The War Unfinished; Sage; 2003).
Meanwhile a long drama was enacted in New Delhi and Srinagar as the media, especially TV, went viral attacking the four. Trial by media in a charged atmosphere vitiates the trial in the court room. The very next day, on 14 December 2001, the Delhi Police Special Cell claimed it had cracked the case. On 15 December it arrested the “master mind” Professor S.A.R. Geelani in Delhi and Shaukat Guru and Afzal Guru in a fruit market in Srinagar. They arrested Afsan Guru, Shaukat’s wife. It was said that the conspiracy began with Maulana Masod Azhar, leader of Jaish-e-Mohammad based in Pakistan, instructing one Ghazi Baba, the Supreme Commander of the outfit in Kashmir, to carry out actions on important institutions of the Indian nation. Ghazi Baba directed Tariq Ahmed to arrange for the operation. Tariq got in touch with Afzal and motivated him to join the jehad for liberation of Kashmir. Afzal met Ghazi Baba and the plan was worked out. It was going to be a joint operation of Jaish-e-Mohammad and Lashkar-e-Toiba. Beginning with one Mohammad, Afzal arranged for several militants – Haider, Hamza, Raja and Rana – to bring huge quantities of arms, explosives and a laptop computer to Delhi in pre-arranged hideouts. In Delhi, the team got in touch with Afzal’s cousin Shaukat Hussain Guru, Shjaukat’s wife Afsan Guru and S.A.R. Geelani, a lecturer of Arabic in Delhi University.
Afzal helped the militants buy the required chemicals and a Sujata mixer-grinder for making explosives. He was also actively involved in the purchase of a white ambassador car, a magnetic red light used by VIPs and a motorcycle for recee. In the beginning, the terrorists had their options open between Delhi Assembly, UK and US embassies, Parliament and the Airport; recee was conducted accordingly. However, Ghazi Baba instructed them over satellite telephone to settle for Parliament. Once the details of the attack were firmed up, the explosives were duly made in the hideouts and the car was fitted with some of them. The laptop was used, among other things, to prepare a “Home Ministry” security sticker and identity cards for each of terrorists. In a final meeting on the night of 12 December 2001, the militants handed over Rs. 10 Lacs to Afzal, Shaukat and Geelani for their part in the conspiracy; they also handed over the laptop to be returned to Ghazi Baba.
The militants started off in the car towards the Parliament complex at about ten in the morning of December 13. Just before the attack, the militants got in touch with Afzal over mobile phones repeatedly to instruct him to watch television to find out the presence and location of VVIPs inside Parliament. Afzal failed to do so as he was in the Azadpur market where there was no electricity; so, he instructed Shaukat to do so. However, the militants started their operation without waiting for this information.
Afzal Guru was not present at the scene of the heinous crime. The case against him rested on his “confession” to the police and on circumstantial evidence. The confession was disbelieved by the Supreme Court but the Court did not pursue the logic of its own rejection. Police Officials who force a man to confess to grave crimes, which he had not committed, not only to the police themselves but, as in Afzal’s case, before the cameras of TV channels, are more than capable of creating “circumstances” to implicate the man whom they seek to eliminate. In this case their workings screamed aloud a clear pattern of deceitful contrivance. Three courts of law, the trial court, the High Court of Delhi and the Supreme Court of India shut their eyes to this circumstance and convicted him on “circumstantial evidence” which, on the face of it, emitted foul play.
The police claimed to have found mobile phones and slips of papers with phone numbers written on them on the person of the dead attackers besides a large quantity of unused arms, ammunition, explosive devices and, of course, the unfailing identity cards which such attackers helpfully carry.
Against Afzal particularly were two pieces of evidence, a cell phone and a laptop which, however, were not sealed. Oddly enough the Arrest Memos were signed by Geelani’s brother Bismillah and the Seizure memos were signed by two notorious men of the Jammu & Kashmir police. Afzal was said to have voluntarily taken the police to the places from which he procured items for the assailants. No Test Identification Parade was held as the law requires. The 15 witnesses who identified the accused were provided prior knowledge of the identity of the accused by showing their photographs to the witnesses. They were not asked to identify from a photograph in a pack. The Special Cell itself took Afzal to the shops from which he was alleged to have made the purchases for and with the militants. Deposition of the shopkeepers elicited the fact that he was brought to them for identification. They were not called to the Cell to identify him.
Moreover, as Anjali Mody points out, “The landlords and property dealers who were said to have identified him and witnessed the seizures of chemicals and explosives from their properties, and attested to having seen him with all five dead attackers, were on bail at the time of the trial. They were arrested between 17 and 20 December 2001 for violating police orders on verification of tenants. The press had reported these arrests. There were also newspaper reports in December 2001 that shopkeepers from two named establishments in Khari Baoli in Delhi, who later identified Mohammed Afzal in court, were picked up and taken to the special cell for questioning. All the ‘public’ witnesses produced by the prosecution operated in the grey market; not one produced a reliable sales receipt, and most produced no sales receipt at all.” These are but a few of the strange features of the prosecution’s evidence. The entire evidence reveals darker features.
Some day the full story of that heinous crime will be unfolded from the voluminous records of the evidence adduced in the trial court and from disclosures in the press. One hopes a Black Book on the Judicial Murder of Mohammed Afzal Guru will be produced. It ranks with some of the gravest miscarriages of justice the world has known.
Early in 1988, a distinguished Scottish Lawlord, Lord McCluskey told the International Bar Association Conference that “vast numbers of people are being punished for crimes they did not commit” and that there was “a lack in our systems of criminal justice of more effective means of remedying an injustice” (Quoted by Peter Ashman in his article Correcting Miscarriages of Justice; The Times (London) 6 December 1988). The danger of miscarriage of justice is particularly great in times of war or insurgency when patriotic clamour overcomes sense of justice. But, as the U.S. Supreme Court remarked, the need to respect the procedural guarantees of due process of law is particularly great in such times “for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action” (Kennedy vs Mendoza – Martinez, 372 U.S. 164 = 9L. ed. 2d. 644 at 659).
An excellent study of miscarriages of justice mentions the use of the “supergrass or career criminal informer”. His services are “bought” by the State (Paul Scraton and Paul Gordon, Causes for Concern; Penguin Books, 1984; p. 100). They were liberally employed by the British Government during the IRA’s insurgency in Northern Ireland.
Following the IRA bombing campaign in 1974, the “Birmingham Six” were convicted of 21 counts of murder. The Six alleged that their confessions should not have been admitted at trial because they were involuntary. In 1976, the Court of Appeal dismissed their appeals. The Six continued to allege that the police who had interviewed them were guilty of perjury and violence. In the 1980s books, television programmes and articles attacked the reliability of the confessions and the convictions. In 1988, the Court of Appeal dismissed the Six’s appeals on the Home Secretary’s reference.
In 1990, electrostatic document analysis, developed in the 1980s, showed anomalies in the supposedly contemporaneous notes of interviews with one of the Six. In 1991, the Six’s convictions were quashed. Further publicity was generated giving prominence to police brutality and corruption linked to the Birmingham Six case as well as the cases of the Guldford Four, the Maguire Seven, Judith Ward and the Broadwater Farm Three. The defendants, three police officers who had interviewed the Six, were charged with conspiracy to pervert the course of justice. (The Law Report; The Times; 19 October 1993).
On 22 October 1975 four persons were convicted of conspiracy and of murders arising from the bombing on 5 October 1974 of a pub in Guildford. On 19 October 1989, the Court of Appeal quashed the convictions. The prosecution rested on their confessions to the police. The Lord Chief Justice Lord Lane observed that “any evidence that cast real doubt upon the reliability or veracity of the officers responsible for the various interrogations had to mean the whole foundation of the prosecution case disappeared and the convictions would be unsafe in this case”. This very much applied to Afzal’s case. In the U.K. a judicial inquiry followed. It is vain to hope for one in India.
Every political trial is conducted in a political context. In this instance the context was shaped not only by the armed militancy but by the brutal methods notoriously adopted by the Central and State Governments in the last 20 years. To the army, its notorious wing the Rashtriya Rifles, the paramilitary Border Security Force (BSF) and the Central Reserve Police Force (CRPF) were joined in 1993 by surrendered militants. They were under the army’s control but without any curbs when they performed. Human Rights Watch did a whole report on “India’s Secret Army.” The Meadow, a classic by Adrian Levy and Gathy Scott-Clark (Penguin Books, 2012), citing classified police records and records of the Indian Government’s negotiations, captures the dreadful clime in Kashmir as they unravel the fate of six tourists captured in Kashmir in 1995. They describe the birth and growth of the surrendered militant and the protection given to them by the “unruly” Special Task Force (STF) and the workings of the Crime Branch Squad of the Kashmir Police with its links to renegade militants.
The facts of a glaring case are recorded by the Supreme Court. In Village Chittisinghpura, District Anantnag, in Kashmir, 36 Sikhs were killed by “terrorists” on 20 March 2000. Immediately thereafter, a search for the “terrorists” began in the entire area and 5 persons, purported to be “terrorists”, were killed at Village Pathribal Punchalthan, District Anantnag, by 7 Rashtriya Rifles personnel on 25 March 2000 in an encounter. Significantly, Chittisinghpura occurred on the eve of President Bill Clinton’s visit to India.
Long processions followed in the Valley in protest of killing of these 5 persons alleging that they were civilians and had been killed by army personnel in a fake encounter. The local population treated it to be a barbaric act of violence and there were demands for an independent inquiry into the whole incident.
The Central Burea of Investigation (CBI) conducted the investigation in the Pathribal incident and filed a charge-sheet in the Court of the Chief Judicial Magistrate-cum-Special Magistrate, Srinagar, on 9 May 2006, alleging that it was indeed a fake encounter, the outcome of a criminal conspiracy hatched by Col. Ajay Saxena, Major Brajendra Pratap Singh, Major Sourabh Sharma, Subedar Idrees Khan and some members of the troop of 7 RR.
Mohammed Afzal Guru was also a surrendered militant who wished to begin a new life in peace. This was denied to him by those very sinister forces and they pressed him to act as an informant. For his refusal, he paid with his life. If Kashmir went up in arms over his execution it was because Kashmiris saw themselves in him.
Arundhanti Roy, a distinguished writer who espoused his cause bravely and with a mastery of the record remarked “His story is inextricably entrained 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….
“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 Mohammad Afzal is hanged, we will never know the answer to the real question : Who attacked the Indian Parliament? Was it the Lashkar-e-Toiba? The Jaish-e-Mohammad? 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?” (Outlook, 31 October 1996, reprinted on 13 December ; A Reader; Penguin Books; 2006; pp 96 and pp. 123-4.)
Muzamil Jaleel, an ace journalist from Kashmir wrote “In two decades of reporting on Kashmir. I have never witnessed such rage here. Unlike previous protests, it isn’t just anger, but more than that. Kashmir isn’t unused to killings but the hanging of Afzal Guru, its secretive nature and the clampdown in its wake, seem to have changed the discourse on the ground. Kashmir’s pent up sentiment against the perpetual status quo needed a trigger to explode, and the hanging has provided that. The Jammu & Kashmir government knew this, and that is why it had locked down the entire Valley even before news of the hanging broke on Saturday morning.
“Why was the law being followed differently on what even the CBI called ‘cold-blooded murder’ in Kashmir? Instances are cited of ordinary people being picked up, killed in staged encounters and subsequently dubbed as foreign militants for medals and cash awards. In each, the judicial process were never seen to be so “efficient” or sensitive to the sense of collective helplessness in Kashmir.” (Indian Express; 15 February 2013).
Since Afzal was not defended by counsel, his case went by default. There are, however, documents which revealed his plight. First comes his wife Tabassum’s article in Kashmir Times of 21 October 2004. It is reprinted (pp. 369-372) in an indispensable collection of documents prefaced by a rigorous analysis by Professor Nirmalangshu Mukherji, a Professor of philosophy at Delhi University who followed the trial closely (December 13 : Terror over Democracy; Promilla & Co. Publishers and Bibliophile South Asia, New Delhi; 2005).
“Tabassum revealed “In 1990 Afzal was attracted to the movement led by the JKLF, like thousands of other youth. He went to Pakistan for training and stayed there for a little while. However, he was disillusioned by the differences between different groups and he did not support pro-Pakistani groups. He stayed there only three months without getting any training. Afzal returned to Kashmir and he went to Delhi to pursue his studies. He always wanted to study and before he joined the movement he was doing his MBBS.
“My husband wanted to return to normal life and with that intention he surrendered to the BSF. The BSF Commandant refused to give him his certificate till he had motivated two others to surrender. And Afzal motivated two other militants to surrender. He was given a certificate stating that he was a surrendered militant. You will not perhaps realise that it is very difficult to live as a surrendered militant in Kashmir but he decided to live with his family in Kashmir. In 1997 he started a small business of medicines and surgical instruments in Kashmir. The next year we were married. He was 28 years old and I was 18 years.
“Throughout the period that we lived in Kashmir the Indian security force continuously harassed Afzal and told him to spy on people they suspected of being militants. One Major Ram Mohan Roy of 22 Rashtriya Rifles tortured Afzal and gave him electric shocks in his private parts. He was humiliated and abused. The Indian security forces used to regularly take Afzal to their camps and torture him. They took him to the Humhama STF (Special Task Force) camp. In that camp the officers, DSP Vinay Gupta and DSP Dravinder Singh demanded Rs. One lakh. We are not a rich family and we had to sell everything, including the little gold I got on my marriage to save Afzal from the torture.
“You should also know that the STF force is notorious in Kashmir for extorting money from the people and they have become so infamous that when Mufti Sayed became the Chief Minister he promised in his election manifesto to disband the entire force. The STF is known for human rights violations including killing people in their custody and brutal, senseless, inhuman torture.
“It was under these conditions that forced Afzal to leave his home, family and settle in Delhi. He struggled hard to earn a living and he had decided to bring me and our four-year old son, Ghalib, to Delhi. Like any other family we dreamed of living together peacefully and bringing up our children, giving them a good education and seeing them grow up to be good human beings. The dream was cut short when once again the STF got hold of my husband in Delhi.
“The STF told my husband to bring one man Mohammad to Delhi from Kashmir. He met Mohammad and one other man Tariq there at the STF camp. He did not know anything about the men and he had no idea why he was being asked to do the job. He has told all this to the court but the court chose to believe half his statement about bringing Mohammad but not the bit that he was told to do so by the STF.
“There was no one to represent Afzal in the lower court. The court appointed a lawyer who never took instructions from Afzal, or cross examined the prosecution witnesses. That lawyer was communal and showed his hatred for my husband. When my husband told Judge Dhingra that he did not want that lawyer, the judge ignored him. In fact my husband went totally undefended in the trial court. Whenever my husband wished to say something the judge would not hear him out and the judge showed his communal bias in open court.
“In the High Court one human rights lawyer offered to represent Afzal and my husband accepted. But instead of defending Afzal the lawyer began by asking the court not to hang Afzal but to kill him by a lethal injection. My husband never expressed any desire to die. He has maintained that he has been entrapped by the STF. My husband was shocked but he had no way of changing his lawyer while being locked up in the high security jail. …
“Will you speak out at the injustice my husband has faced? Will you speak out on my behalf? I am of course fighting for my husband’s life, for the life of my son’s father. But I also speak as a Kashmiri woman who is losing faith in Indian democracy and its ability to be fair to Kashmiri Muslims.” (pp. 369-372).
Ram Jethmalani defended Prof S.A.R. Geelani in the High Court, without charging any fees and worked tirelessly on the case. In a written submission to the High Court he pointed out that “the most vital safeguard for the accused is Section 313 of the Code.” Yet, he said, “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,’ Jethmalani complained, ‘non-existing circumstances were put to him.’ ‘Principles of natural justice,’ he concluded, ‘have been thrown to the winds resulting in miscarriage of justice.’” (Mukherji; p. 96).
Section 313 of the Code of Criminal Procedure 1973 is a replica of Section 342 of the Cr.P.C. of 1898. It enjoins the Court, after the witnesses for the prosecution have been examined and before he is called for his defence, to question him generally on the case. Why? “For the purpose of enabling the accused personally to explain any circumstances appearing in the case against him.”
It is a vital safeguard; more so when the accused is undefended. Prof. Mukherji’s compilation reproduces Afzal’s answers to the Court’s questions under s. 313 on 21 September 2002 (pp. 150-183). He mentioned that after his arrest in Srinagar he was brought to Delhi and a statement was recorded “after torturing me”. He had surrendered to the BSF. In 2000 he was picked up by the STF and confined for 21 days. He met Tariq during the confinement. “I had to daily attend the STF camp”. He had not identified any terrorist. “Police told me the names of terrorists and forced me to identify them”. The police had obtained his specimen signatures on several sheets.
Afzal Guru told his sad tale fully. “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 in a week. One Raj 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 tortured by me. (Sic.) He only used to just threatened me. I use 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. people came and picked me up and they continuously tortured me for five days. Some body had given information to S.T.F. that I was again indulging in militant activities. That person was confronted with me and was 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 S.T.F. and they made me a Special Police Officer for six months. They were knowing that I will not work for them. Tariq had met me in Palhalan S.T.F. camp where I was in custody of S.T.F. Tariq met me later on in Srinagar and told me he was basically working for S.T.F. I also told him that I was also working for S.T.F. Mohammad who was killed in attack on Parliament was alongwith Tariq. Tariq told me that 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 after some time from Delhi. I do not know why I was caught by the police of Srinagar on 15 December 2001. I was boarding a bus at Srinagar bus stop, for going to my home when police caught me. Witness Akbar who had deposed in the court that he had apprehended Shaukat and me in Srinagar 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 had 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…
“Mohammad, the slain terrorists of Parliament attack had come alongwith me from Kashmir. The person who handed him over to me is Tariq. Tariq is working with Security Force and S.T.F. Tariq had told me that if I face any problem due to Mohammad he will help me as he knew security forces and STF very well. Tariq had also told me that Mohammad had stayed in Srinagar with STF people and had come from Keran in the security forces vehicle. Tariq had told me that I have just to drop Mohammed at Delhi and I have not to do anything else. And if I would not take Mohammad with me to Delhi then I would be implicated in some other case. I under these circumstances, brought Mohammad to Delhi under a compulsion without knowing that he was a terrorist” (Mukherji pp. 178-182).
In an application to the High court he complained that his answers under S. 313 were not properly recorded. Not surprisingly. But the flaw was fatal for the record is prepared in the trial court. Appellate Courts rely on its correctness.
Anjali Mody notes “What transpires in court is not written down verbatim by the recorder, but is dictated to the recorder by the presiding judge/magistrate. What was actually said and what was dictated was not always identical during the conduct of Parliament attack trial. The compression of ideas and the imputation of meaning turned on the syntax used by the judge, and the inclusion of words not spoken and the elision of words used.
“One exchange during the trial between a defence witness (a linguistics expert) and the presiding judge illustrated this quite well. The expert, Peggy Mohan, said that her analysis of the confessional statements of Mohammed Afzal and Shaukat Hussain suggested they were not verbatim transcriptions of oral statements. At various points during her deposition, Mohan stopped the judge as he dictated a paraphrased version of what she had said, saying she was being misquoted. The judge asked if she had seen Mohammed Afzal’s television interview ‘in which he has incriminated himself’. She responded, ‘I have not seen the interview’. The judge dictated, ‘I have not seen the interview in which Mohammed Afzal incriminates himself’. Mohan protested, saying that the judge was attributing words to her that she had not said. The judge said, ‘But I have seen it and I am saying he has incriminated himself. This is my question and you will have to answer it my way.’ Mohan would not allow it.
“It has to be asked – what is the proper value of a court record written in the absence of effective legal counsel or sturdy defence witnesses who can raise objections during the process of recording?” (Economic & Political Weekly; p. 41)
At long last, friends collected enough money, however belatedly, to secure the services of a Senior Advocate, Sushil Kumar, in the Supreme Court. Afzal Guru’s detailed letter to his counsel from prison is very revealing and is quoted in extenso “In the Parliament attack case I was entrapped by the Special Task Force of Kashmir”. He was tortured after his arrest in Srinagar.
It was not a new experience. As a surrendered militant he lived on sufferance, as it were. “In 1997-98 I started a business of medicines and surgical instruments on commission basis as I could not get a govt. job due to the reason of being a surrendered militant. Because surrendered militants were not given jobs. They were either to work as SPOs or STF or to join the renegades under the patronage of security forces or police. Everyday SPOs were got killed by militants. In these conditions I started my commission based business earning 4000Rs. – 5000Rs. per month. But since the police informers (SPOs) usually harass those surrendered militants who do not work with S.T.F. etc. From 1998-2000 I usually used to pay 300Rs. Sometimes 500 Rs. to local SPO so as to keep myself in business otherwise these SPO make us to present us before security agencies. Even one of the SPO one day told me that they too have to pay their bosses. As I was working hard in my business my business flourished. One day at 10 AM I was on my two wheeler scooter that I had purchased just before two months, I was whisked away by STF men in bullet proof gypsy to Palhallan camp. There the D.S.P. Vinay Gupta tortured me, electrified me – put me in cold water – used petrol – chillies and other techniques. He told me that I possess weapons but at evening time one of his inspector Farooq told me that if I can pay 1,000,000 Rs. to him (D.S.P) I will be released or they will kill me. Then they took me to Humhama STF camp where D.S.P. Dravinder Singh also tortured me. One of his torture inspector as they called him, Shanti Singh, electrified me naked for 3 hours and made me drink water while giving electric shocks through telephone instrument. Ultimately I accepted to pay them Rs. 1 Lakh which my family sold the gold of my wife….
“In the same Humhama STF camp there was one more victim named Tariq. He suggested me that I should always co-operate with STF otherwise they will always harass and will not let me to live normal – free life. This was a turning point of my life. I decided to live the way Tariq told me. Since from 1990-1996 I had studied in Delhi University I was also giving tuitions in different coaching centres and also home tuitions. This fact reached to the man named Altaf Hussain who is brother-in-law of S.S.P. Ashaq Hussain of Budgam. …
“One day Altaf took me to Dravinder Singh (D.S.P.) D.S. told me that I had to do a small job for him to take one man to Delhi as I was well aware about Delhi and has to manage a rented house for him. Since I was not knowing the man but I suspected that this man is not Kashmiri as he did not speak in Kashmiri but I was helpless to do what Dravinder told me. I took him to Delhi. One day he told me that he want to purchase a car. Thus I went with him to Karol Bagh. He purchased the car. Then in Delhi he used to meet different persons and both of us Mohammad and me used to get the different phone calls from Dravinder Singh. …
He left for Srinagar for the Eid festivities where he was arrested, tortured and taken to Delhi’s Special Police torture Cell. “In Special Cell custody I told them everything regarding Mohammad etc. but they told me that I Shoukat his wife Navjot (Afshan) Geelani are the people behind parliament attack. They too threatened me regarding my family and one of the inspector told me that my younger brother Hilal Ahmad Guru is in STF custody. They can lift the other family members too if I don’t co-operate with them. They tried me and forced me to implicate Shoukat his wife and Geelani but I did not yield. I told them this is not possible. Then they told me that I should not say anything about Geelani (about his innocence). After some days I was presented before media hand-cuffed. There were NDTV, Aaj tak, Zee News, Sahara TV etc. Rajbeer Singh (A.C.P.) was also there. When one of the interviewer Shams Tahir Khan told me what is the role of Geelani in Parliament attack, I just said that Geelani is innocent. This moment A.C.P. Rajbeer Singh got up from his moving chair he shouted at me and told me that he had already said me not to speak about Geelani in front of everybody (Media-personnel). Rajbeer Singh’s behaviour exposed my helplessness and media personnel atleast came to know that what Afzal is saying under threat or duress….
“They took me to various places in Delhi. From where they showed that Mohammad had purchased different things. They took me to Kashmir from where we came back without doing anything. They made me to sign on atleast 200-300 blank pages. I was never given an [a] chance in [the] designated court to tell the real story. The judge told me that I will be given full opportunity to speak at the end of case but at the end he even did not recorded my all statements neither the court gave me whatever even the court recorded. If phone numbers recorded will be seen carefully the court would have come to know the phone numbers of STF. Now I hope that the Supreme Court will consider my helplessness and the reality through which I had passed STF made an [a] scapegoat in all this criminal act which was designed and directed by STF and others which I don’t know. Special Police is definitely the part of this game because every time they forced me to remain silent. I hope my forced silence will be heard and justice will prevail. I once again pay heart felt thanks to your good self for defending my case. May truth prevail.”
Since the Supreme Court rejected the confessions alleged to have been made by Afzal and others, it is unnecessary to dilate on their contents. But the significance of this effort by the police should not have been overlooked by the court. (State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 Supreme Court Cases p.600). Section 26 of the Evidence Act, 1872 bars the confession made by any person whilst he is in the custody of a police officer unless it is made in the presence of a Magistrate. Section 164 of the Criminal Procedure Code 1898 (also of 1973) lays down the procedure for magisterial recording of confessions to ensure that they are made voluntarily. However Section 32 of the Prevention of Terrorism Act 2002 (POTA) overrides all that to make admissible in evidence confessions recorded by a mere Superintendent of Police. It is subsequently recorded by a Magistrate and signed before him. The Supreme Court asked why the suspect could not be produced before a Magistrate straight away and drew pointed attention to “the ground realities … It is an undeniable fact that the police in our country still resort to crude methods of investigation” (p. 677).
Note the dates. On 19 December 2001, Assistant Commissioner of police Rajbir Singh takes over the investigation. On the same date the draconian POTA is applied to the case. The next day (20 December) he interrogates Afzal. According to him three acused – Afzal, his cousin Shaukat and Geelani expressed a desire to confess. He informs the Deputy Commissioner of Police Ashok Chand of this and is asked to produce them on the following day, 21 December. Geelani flatly refused to confess. Afzal is produced, a “confession” is recorded after formal cautions. The confessions are promptly sent to the Additional Chief Metropolitan Magistrate on 22 December.
But there was a fly in this messy ointment which testified to the poison it contained. Significantly alone among the four accused Afzal Guru was paraded before TV channels in the very office of the Special Cell at Lodhi Road, New Delhi. The moving spirit behind this sordid drama Rajbir Singh was present and intervened at one stage, giving himself away completely. Sharms Tahir Khan, principal correspondent of Aaj Tak, one of the TV channels which were summoned to interview Afzal – so that he could damn himself before the country and also prejudice his trial – bravely deposed as defence witness on 10 October 2002.
He had said that Geelani was not involved. The witness said “It is correct that accused was told by ACP Rajbir Singh not to say anything about SAR Geelani by that time my interview had already been concluded and NDTV persons were interviewing. Rajbir had requested not to telecast the line stated by accused about Geelani. So when this interview was telecast on 20th December 5 p.m. that line was removed but when this was rebroadcasted in our programme 100 days after attack this line has not been removed and is in the interview.
“Question : I put it to you that Rajbir had not simply told me but shouted at me not to say anything about Gellani?
Ans. : It is correct.” (Mukherji pp. 209-210). The Supreme Court expressed surprise at Rajbir Singh’s profession of “ignorance about the media interview”. But in the very next sentence the Court said “We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused.” This is of a piece with the Supreme Court’s approach to Afzal’s defence.
The defence overlooked the fact that Rajbir Singh who behaved thus was more than likely to have behaved as Afzal accused him of behaving. After the trial the media began exposing the background of all the three principal actors in the frame-up Rajbir Singh, Shanti Singh and Davindar Singh.
It is these geniuses who completed the investigation in 17 days flat. “Rajbir Singh joined the Delhi Police in 1982 as a sub-inspector who finally made his way to become an ACP. He is the only officer in the Delhi Police history to be promoted to the rank of ACP in just 13 years. He came into the limelight on November 3, 2002 when he claimed to have killed two alleged ‘terrorists’ in an encounter in the basement of the Ansal Plaza Shopping Mall in South Delhi. A man, Dr. Hari Krishna, who claimed he saw the deaths, labelled it a fake encounter. According to his version, ACP Rajbir Singh brought the two alleged terrorists in the basement alive and killed them in cold blood. The eye-witness, Mr. Harikrishna was so hounded and harassed by Rajbir Singh and his cohorts that he had to go in hiding without leaving a trace till date. After this incident Rajbir Singh was touted as an ‘Encounter specialist’…
“Rajbir’s alleged links with a drug trafficker also came to be known after a telephonic conversation between him and Drug Mafia- taped by the narcotics wing was made available to the media. …
“In 2008, on March 20, ACP Rajbir Singh was shot dead by his friend and partner, Vijay Bhardwaj, a property dealer of Gurgaon over a dispute on “investments” he made with the realtor. In his statement, the accused Bhardwaj, confessed, among other things, that he was unable to repay Rajbir the money invested in shoddy land deals and the Gun used in the killing, with apparent marking “E-8256”, was given to him by Rajbir Singh to help recover money from his business clients. Further enquiries revealed that the serial number of the revolver used in the murder of Rajbir was tampered with and that its real number was “A-1031”. The revolver was issued by the Kanpur Ordinance Factory on 26 February 1993, and allotted to the ASP (Hissar) from where it was reported stolen in a police encounter.
“This is the character of Rajbir Singh, who claimed to have cracked the Parliament attack case in just seventeen days and implicated Mohammad Afzal Guru as the brain behind the conspiracy. During the media trial of the Parliament case held at Lodhi Road, he snubbed Afzal Guru for speaking something contrary to what he had been directed to. This was noted by Shamas Tahir Khan, reporter of Aaj Tak, who later testified to it before the court. The most unfortunate thing is that the trial court believed Rajbir’s version when many details of his dubious and illegal dealings were already in public domain.” (Abdur Majid Zargar, Kashmir Times; 5 March 2013).
Citing First Information Reports Sama Bhat reported “Shanty Singh is in jail” on charges of custodial killing (Kashmir Life, Srinagar Weekly, 24 February 2013).
Davinder Singh, Dy S.P., did not need exposure by the media. He boastfully exposed himself in an interview in 2006. It merits quotation in extenso. Afzal Guru yielded nothing on interrogation by Vinay Gupta of the dreaded Special Operations Group. “But I requested Vinay not to release him and send him to my camp Humhama (Budgam District). That is how I know Afzal. I did interrogate and torture him at my camp for several days. And we never recorded his arrest in the books anywhere. His (Afzal’s) description of torture at my camp is true. That was the procedure those days and we did pour petrol in his arse and gave him electric shocks. But I could not break him. He did not reveal anything to me despite our hardest possible interrogation. We tortured him enough for Gazi Baba but he did not break. He looked like a ‘bhondu’ those days, what you call a ‘_______’ (an Urdu swear word for naïve or easily duped persons) type. And I had a reputation for torture, interrogation and breakings suspects. If anybody came out of my interrogation clean, nobody would ever touch him again. He would be considered clean for good by the whole department.
“Q. In the light of allegations by Afzal, do you think that you may have been used?
“It is a difficult time for me. I would expect my superiors to clear my name. But it is so that nobody from my department has come forward so far. Even if I had an iota of suspicion that I had been used by anybody. I am not the type to keep silent. And I want to re-iterate that I have not talked to, seen or met Afzal or any of his family members after handing him back to Pattan SOG camp.
“Q. Then why is your name figuring in Afzal’s letter and his wife’s accounts?
I am being victimized for having worked in SOG, for being very nationalistic. What am I getting in return? Bad name and a conspirator … It’s really unfortunate … Also, to be candid with you, nobody would ever forget having been interrogated by me.”
This is the “torture specialist” speaking. But the real give away is the use of the swear word. Terrorists are not naïve. Afzal is not called a crook but a naïve man who could not be broken. But since he knew a lot, he had to be eliminated.
The three courts – the trial court, the High Court and the Supreme Court refused to pay any heed to Afzal’s version on the record in the trial court, under section 313 of the Cr.P.C. despite the clear provisions of S. 313. The Indian Express reported on 21 March 2013 a judicial intervention by a lower court in a strikingly similar case of torture. “Three Bhagalpur police officers allegedly poured petrol through the rectum of a youth last September, part of pressure tactics to involve him in a murder case. The Bhagalpur sub-divisional magistrate’s court has issued arrest warrants against them.
“The youth told the court that he was subjected to the torture because he had refused to become a witness in the murder case. Before that, he told the court, the officers had extorted money out of him. And by the time he was narrating his story in court, he was an accused in the murder case. The court on March 12 ordered the district police to register a case and arrest the three officers.”
The case required a defence lawyer of skill, industry and courage to expose the plot behind his client’s frame up and indeed to stand upto a hostile trial judge. He had also to be electronically literate; for the case rested on cell phones and laptops. But precisely in such a case Afzal Guru went undefended and all the three courts shut their eyes to a grave wrong which, by settled judicial precedents, vitiates the entire trial. He was sentenced to death in these very circumstances.
The right to counsel begins from the moment of arrest. From the time of his arrest by the police on 14 December 2001 till their filing of a charge sheet in court on 14 May 2005, he had no lawyer. In between on 19 January 2002, when he was produced before the Designated Judge, under POTA who was to try him, he was asked whether he would be engaging a lawyer. He gave the only answer a financially ruined man could – No. It was the Court’s duty to name one for him.
What followed thereafter is scandalous. The Designated Judge, S. N. Dhingra, who was also Additional Sessions Judge, Delhi, appointed, on 17 May, a lawyer Seema Gulati, as amicus for him. This was a wrong step. Amicus Curiae are appointed to assist the court, especially when the rival sides will not bring out the whole truth. Counsel are doubtless officers of the court who assist it. But they do so while assiduously discharging their duty to their client. Nandita Haksar, a lawyer committed to the cause of human rights who worked for the wronged ones in the North-East of India, setup with friends an All India Defence Committee consisting of distinguished persons, including two Magsaysay Prize awardees. The Delhi University Teachers group played an active role in the agitation for Prof. Syed Abul Rehman Geelani’s release, for whom she appeared as counsel. Nandita Haksar’s book is very useful for an understanding of the course of the tragedy. (Nandita Haksar; Framing Geelani, Hanging Afzal ; Patriotism in the Time of Terror; Promilla & Co. Publishers and Bibliophile South Asia, new Delhi; 2007). She records that on 17 May 2002 Seema Gulati “appeared on behalf of Afzal. She conceded that a prima facie charge was made out against him even though she could have challenged the charges. Then court records of 5 June 2002 show when charges were framed she made vital concessions and admitted certain documents so that those documents were taken into evidence without formal proof. These concessions resulted in dropping of several important prosecution Witnesses which meant Afzal could not undo the damage of these concessions made on his behalf but without his instructions and without thought to the consequences to him. And then Seema Gulati gave an application stating that she does not want to defend Afzal. That was on 2 July 2000 – barely a week before the trial was to begin.
“It is true that Seema took up Geelani’s defence for a professional fee. It was a fee that he could never have raised had it not been for the support of his friends and colleagues. Afzal, who was economically even poorer, could not have raised a fees and no professional lawyer would take time off their practice to defend a Kashmiri terrorist for a paltry sum of Rs. 3,000 which is all that the Legal Aid Services Authorities Act provides for.” (Haksar; pp. 184-185).
To repeat, the record is prepared in the trial court. The appellate court cannot alter it. But sensing the flaws it can acquit the accused or order a retrial. Afzal acquired a counsel of repute Sushil Kumar only in the Supreme Court. The Supreme Court’s comments reveal the wrong that had been perpetrated. “The first point raised by Mr. Sushil Kumar, appearing for the accused Afzal, was that he was denied proper legal aid, thereby depriving him of effective defence in the course of trial. In sum and substance, the contention is that the counsel appointed by the court as ‘amicus curiae’ to take care of his defence was thrust on him against his will and the first amicus appointed made concessions with regard to the admission of certain documents and framing of charges without his knowledge. It is further submitted that the counsel who conducted the trial did not diligently cross-examine the witness. It is, therefore, contended that his valuable rights of legal aid flowing from Articles 21 and 22 is violated. We find no substance in this contention. The learned trial Judge did his best to afford effective legal aid to the accused Afzal when he declined to engage a counsel on his own. We are unable to hold that the learned counsel who defended the accused at the trial was either inexperienced or ineffective or otherwise handled the case in a casual manner. The criticism against the counsel seems to be an afterthought raised at the appellate stage. It was rightly negative by the High Court.” (p. 724 para 165).
Given the hostile attitude of Judge Dhingra what other cause was open to Afzal. Moreover, it was Dhingra himself who thrust those lawyers on Afzal. The Supreme Court waxed eloquent on the law. “The importance of the provision to afford the assistance of the counsel even at the stage of custodial interrogation need not be gainsaid. The requirement is in keeping with … the philosophy underlying Articles 21, 20(3) and 22(1). This right cannot be allowed to be circumvented by subtle ingenuities or innovative police strategies. The access to a lawyer at the stage of interrogation serves as a sort of counterweight to the intimidating atmosphere that surrounds the detune and gives him certain amount of guidance as to his rights and the obligations of the police.” To the case in hand these fine words were not applied as the courts own summary makes clear.
First one Attar Alam was appointed but he “was not willing to act as amicus”. Seema Gulati astonishingly conceded that there was prima facie material to frame charges. That was on 3 June 2002. Charges were framed the next day “True,” the Supreme Court conceded, Afzal “was without counsel till 17 May 2002”; but, it said nothing important happened till then. This was during the crucial stage of investigation, torture and confessions. On 1 July 2002 Seema Gulati sought her discharge from the case “citing the curious reason” that she had been engaged by another accused, Geelani, to appear on his behalf; for a fee, of course. One Neeraj Bansal (far junior) was thrust on Afzal.
Afzal objected on 8 July and sought the services of a Senior Advocate. But the counsel he named were unwilling. “Neeraj Bhansal was therefore continued in view of the fact that he had experience in dealing with TADA (Terrorism and Disruptive Activities Act, predecessor of POTA).” Thus did the Supreme Court brush aside its own observations on the need for a defence counsel and acquiesced in a brazen wrong. It is for the accused to select his counsel, not for the court to impose one on him because it considers him an expert. Afzal objected to Neeraj Bansal the very day he was appointed – 12 July 2002. He continued all the same thanks to Judge Dhingra though Bansal himself wanted to quit. He never met Afzal; never asked to meet him. Of the 80 prosecution witnesses only 22 were cross-examined; mostly inadequately. Judge Dhingra evidently was not concerned to hear the defence. That the Supreme Court ignored a monstrous wrong in the one case of Afzal Guru speaks for the justice he received. It can be confidently asserted that no other court in any other democracy in the world would have acquiesced in such a wrong.
The name of Clarence Gideon became “a household name in the annals of justice” thanks to the celebrated journalist Anthony Lewis’ book Gideon’s Trumpet. Gideon had pencilled his petition “in the form of a pauper; as a poor man”. The U.S. Supreme Court ruled unanimously, speaking through Justice Hugo Black, that “in our adversary system of criminal justice any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him” a counsel he approves (Gideon vs. Wainwright 372 U.S. 335 )1963) ). A plethora of rulings of the Supreme Court of India followed this ruling. All were brushed aside in the one case of Mohammad Afzal Guru.
The 637-page judgment of the trial court delivered on 18 December 2002 reeks of error and bias. The record on which it was based was gravely flawed as Mukherjee points out. “A number of these discrepancies that had crept in the case could have been sorted out, had the court taken a judicious position on the right of cross-examination. A number of questions put in cross-examination were disallowed in the course of the trial. This was particularly striking with regards to cross-examination of ACP Rajbir Singh (PW 80) the Investigating officer who supervised the investigations as well as of the DCP Ashok Chand (PW 60) who recorded the confession. In the case of the former the reason advanced was that matters that are part of record or pertain to judicial record may not be asked from the witness. Since PW 80 supervised the investigations this ought to have been allowed especially because in a cross-examination, the sorting of contradictions and testing the credibility of the witness, etc. are usual. Similarly, questions put to PW 60 beyond confession were disallowed when it is a settled principle that questions regarding any briefing given to this witness by the IO (PW 80) ought to have been allowed.” (p. 289).
Nandita Haskar mentions a disturbing fact. “The impugned judgment makes a series of statements stating that Pakistan was involved in the attack on the Indian Parliament and the five deceased attackers were Pakistanis. It states : ‘All five deceased terrorists were identified as Pakistanis by one of the co-accused. The bodies were kept in the mortuary for several days. No person in India claimed their bodies that showed that they were not Indians.’ (Para 220)
“That is the only ‘proof’ of Pakistan’s involvement in the attack on our Parliament that was placed on record.
“The proceedings of 14 January 2002 show that the Ministry of External Affairs (MEA) filed an application asking permission to file ‘secret and other documents for keeping in sealed envelope’. The learned Judge ordered : ‘Ahmad is directed to place the documents in sealed envelope and keep the same in safe custody under his lock.’ Was this the secret source of the learned Judge’s information that he could confidently accuse Pakistan of involvement in the attack without any evidence on record?” (p. 71). Her question is very pertinent. Was the MEA trying to prove the prosecution case? Was the MEA providing the political background? Evidence given behind the back of the accused vitiates the trial, surely.
The Judge, S.N. Dhingra was discourteous to counsel. An argument was rejected as being “a figment of imagination of counsel”. Public witnesses to arrests and searches were not produced even when they were near at hand. Dhingra justified this because of “the prevalent situation in the country.”
Sample these gems: “I consider that merely because prosecution had not followed the procedure laid down in tapping the conversation looking into the emergent requirement and interest of Nation, the evidence collected by prosecution in the form of taped conversation cannot be thrown out.” (para 195) That interest overrides the law. He added “Defence has criticized prosecution for calling PW 71 who was only 5th/6th Standard pass for translating Kashmiri conversation to Hindi. Language is not monopoly of educated and elite class. A child starts learning mother tongue while sucking milk of her mother. A person educated upto 5th or 6th standard may be knowing his mother tongue much better than a graduate or post-graduate, who after acquiring knowledge of English starts forgetting his mother tongue and can speak only in Hinghlish, Chinglish or Kashinglish. Tulsidas, Kabir, and several other contemporary personalities had no little formal education but had command over language and produced great ‘works’. Being a fruit seller is no sin. Today we do not understand the dignity of labour and look upon persons earning livelihood by labour as low class. If India is 10th among the most corrupt countries, it is not because of these poor people but because of some other class of people. The witness could not understand English words in the conversation because of lack of knowledge of English language but he understood Kashmiri and Hindi well and translated the conversation to Hindi properly.”
To think that one who could write such rambling absurdity could also pronounce sentences of death. The 392 page judgment of the Delhi High Court, delivered by Justice Usha Mehra and Pradeep Nawajog on 29 October 2003 has the same patriotic fervour. “After the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place. The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war.” (p. 390). Was this based on the MEA’s input? It acquitted Gilani and Afsan Guru. The convictions of Afzal and Shaukat Guru were affirmed. The prosecution’s case on the dates of arrest of Gilani and Afzal was rejected. Afzal’s statements under S. 313 were ignored.
The Supreme Court praised Dhingra for concluding the trial “within a record period of about six months”. There was “no evidence that he (Afzal) is a member of a terrorist gang or terrorist organisation, once the confessional statement is excluded”. Even if it was accepted, “it is doubtful whether the membership of a terrorist gang or organisation is established.” (Para 250).
There followed the now famous passage which, one hopes, the Supreme court will one day regret and reject even as it has its infamous judgment in the habeas corpus case in 1976 during the emergency. This is what Justice P. Venkatarama Reddi said on behalf of himself and Justice P.P. Naolekar. “The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting the normal life of the people of India is something which cannot be described in words. 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. The Appellant, (Afzal Guru) 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. Accordingly, we uphold the death sentence.” ((2005) 11 SCC 760). Even the prosecution did not allege that he was “bent upon” that. There was no evidence to that effect.
This misplaced and laboured eloquence is as revealing as it is in bad taste. Emperors and dictators, of the lower breed, have proclaimed that a particular person’s life be rendered “extinct”. In all history no Judge has ever used such language not even the infamous Judge Jeffreys. He was put in the Tower of London where he died in 1689. Another “ruffian in ermine” was Justice Scroggs.
In civilised countries Judges pronounce the death sentence with great reluctance, regret and, in extreme cases, controlled indignation. Never exultantly, in a spirit of vindication or in brazen populism. This passage has been widely criticised, but the question it squarely raises is overlooked. How fair and detached in their evaluation of the facts and the law can be judges who are capable of using such language as this?
The Supreme Court’s judgment was delivered on 4 August 2005. A date was fixed for Afzal’s execution – 20 October 2006. A mercy petition on 8 November 2006 stalled it. However on 4 August 2011 the Union Home Ministry advised President Pratibha Patil to reject it. She sat on it wisely, till her term in office ended. Pranab Mukherji succeeded her as President on 25 July 2012 and referred the petition to the Home Ministry for its advice on 15 November. Sushil Kumar Shinde advised the President to reject the mercy petition on 21 January 2013. The convict in the Mumbai blasts case, Mohammed Ajmal Kasab, was executed in secret on 21 November 2012. The President rejected Afzal’s mercy petition on 3 February 2013. He was executed in complete secrecy on 9 February in order to prevent another mercy petition or a review petition to the Supreme Court.
All the rules in the Jail Manual were broken. They require (a) that the family be informed prior to the execution, (b) that the accused be given time to write his will, and (c) his body should be handed over to his family. A letter was sent by “Speed Post” on 8 February to Afzal’s wife Tabassum in Srinagar calculatedly to reach her after the execution. It reached her two days after the execution and read : “The mercy petition of Sh Mohd Afzal Guru s/o Habibillah has been rejected by Hon’ble President of India. Hence the execution of Mohd Afjal Guru s/o Habibillah khas been fixed for 09/-2/2-13 at 8 am in Central Jail No. 3. This is for your information and for further necessary action.”
The family was asked to offer prayers at his grave in Tihar Jail if it so wished. It refused. In the Mazar-e-Shuhada in Srinagar, the epitaph on Afzal’s tombstone (which the police removed, and then was forced to replace because of public outrage) reads, in translation : “The martyr of the nation, Shaheed Mohammed Afzal Guru, Date of Martyrdom : 9th February 2013 Saturday, whose mortal remains are lying in the custody of the Government of India. The nation is awaiting its return.”
The execution improperly pre-empted the Supreme Court’s verdict in two pending petitions. In April 2012 the Court had concluded hearings on the issue of executing prisoners who had already served inordinately long sentences; Afzal Guru’s case very much belonged to this group. Another was his petition to the Court seeking his transfer from Tihar Jail in New Delhi to Central Jail in Srinagar where his wife lived. They had met last on 2 August 2012. The petition was filed early in 2011 through the Supreme Court Legal Services Committee. Two days after the execution Justice Chelameswar of the Court dismissed Afzal’s petition as infructuous. (The Hindu; 19 February 2013; report by V. Venkatesan who has reported on the case with commendable thoroughness and fairness).
If Kashmir had a Chief Minister who shared the sentiments of his people he would have exerted himself and would, indeed, have prevented the execution. But Omar Abdullah, like his father Farooq before him, owes his office to the bounty of the Central Government and its ruling party, the Congress, with which alone a coalition could be forged to form a government.
Contrast this with the action of the Chief Minister of Tamil Nadu, J. Jayalalitha. Despite the rejection of their mercy petitions by the President she herself moved a resolution in the State Assembly, on 30 August 2011, recommending commutation of the death sentences awarded to three convicts in the Rajiv Gandhi assassination case. The resolution, adopted unanimously, reads thus. “The Tamil Nadu Assembly urges the President to reconsider the mercy petitions of Suthenthiraraja alias Santhan, Sri Haran alias Murugan and Perarivalan alias Arivu and to take steps to commute the death sentences awarded to them to life imprisonment, respecting the sentiments of the people of Tamil Nadu and the views of the political parties in Tamil Nadu.” (The Hindu, 31 August 2011).
Omar Abdullah’s tweet revealed more than he suspected. “If Jammu & Kashmir Assembly had passed a resolution similar to the Tamil Nadu one for Afzal Guru, could the reaction have been muted? I think not”. (Vide Kashmir Life; 17 February 2013 for a full report). Small wonder that when shortly thereafter on 28 September 2011 he was required to put his money where his mouth was, he anticipated the fury of his masters in New Delhi and had the resolution killed. It was moved by the fearless Independent MLA Engineer Abdul Rashid. Orchestrated uproars forced frequent adjournments. Abdul Rashid called it a “drama” and a “well planned conspiracy” formed in New Delhi and all the parties the ruling National Conference, Mehbooba Mufti’s People’s Democratic Party and, of course, the Congress and the BJP played a part. (For a full account read the report in Srinagar’s leading daily Greater Kashmir of 29 September 2011). He revived the issue on 27 February 2012 and personally presented a petition to President Pranab Mukherjee on 16 July 2012. Engineer was the only legislator to be arrested within minutes of the execution.
After a belated expression of sorrow on “Afzal Sahib’s” execution, Omar Abdullah declared on 4 March 2013 that “I, myself, do not admit even now that execution was inspired by political reasons”. (Kashmir Times; 5 March 2013).
When Maqbool Butt was executed on 11 February 1984 Kashmir seemed quiescent . Few noticed the ramblings beneath the surface. Now the populace, already alienated from the Union, is inflamed. Every Kashmiri sees himself in the man who was executed on 9 February 2013.
Shortly thereafter a highly respected monthly, CARAVAN, published in its issue of March 2013 a nine-page long documented article by Sanjay Kak entitled “The Apparatus: Laying bare the State’s terrifying impunity in Kashmir”. People are just picked up and their corpses discovered later. The State Government presides over such a set-up by the Centre enjoying the loaves and fishes of office, despised by the people.
Mohammad Afzal Guru has lost his life but the Government of India and the Indian Political Establishment have lost whatever little confidence and respect they enjoyed among the people of Kashmir. They have extinguished all hopes for justice and fairplay. Only a brave and sincere act of statesmanship can retrieve the situation; if at all. But men who have recklessly, dishonestly pursued a case based on “circumstantial evidence” created by the likes of Davinder Singh, Ranbir Singh and Shanty Singh, and sent a man to the gallows to match the Hindu Right (the BJP & RSS) are not likely to have either the courage or the desire for such an act of statesmanship.
The tragedy has not united the feuding factions of the erstwhile All Parties Hurriyat Conference. Kashmiris cry for two things – succour and leadership. Fate callously denies both to them. Haplessly they ask: aisi bhi koi shab hai jis ka saher na ho? (Can there be a night which does not yield to a dawn?).
The author is an eminent Indian scholar and expert on constitutional issues.