Penguin's recent offering 13 Dec: A Reader is a collection of essays by an eclectic group of journalists, writers, lawyers and academicians on the attack on the Indian Parliament on 13 December 2001. Although most of the pieces have previously been seen in the public domain, this collection offers lay-readers an excellent opportunity to get a detailed overview of the gaps in the investigation, the loopholes in the prosecution case and also the failings of the Indian judiciary at all levels in the aftermath of the attack. Aptly subtitled, The Strange Case of the Attack on the Indian Parliament, this book places before readers the many questions that still remain unanswered about this unprecedented attack. That the collection is at times reminiscent of a Ludlum or Forsyth novel is testament to the murkiness of the entire case. Strange is definitely an understatement.
On 13 December 2001, a white ambassador with at least five armed men entered the Parliament complex. In the ensuing gun-battle, all the five attackers and nine others, including eight security personnel, were killed. The police investigation was concluded in a fortnight and four persons one Mohammad Afzal Guru, his cousin Shaukat Guru, Shaukat's wife Afsan Guru (alias Navjot Sandhu) and SAR Geelani, a Delhi University Arabic lecturer were arrested; while three others (including usual suspects Ghazi Baba and Masood Azhar) were declared the masterminds of the attack. The designated POTA court convicted all four, sentencing all but Afsan Guru to death. Geelani and Afsan were later acquitted by the High Court and their acquittal was confirmed by the Supreme Court. Shaukat's sentence was commuted by the Supreme Court while Afzal's death sentence was upheld.
13 Dec: A Reader. Penguin Books India 2006. 233 pages, Rs.200.
Arundhati Roy's introduction to this collection lists 13 disturbing questions that remain unanswered over five years and three court judgements after the incident. These include why the close circuit television (CCTV) recordings of the incident were never released; what was the role of the Special Task Force (STF, part of the J&K Police) in this incident given that Afzal was a surrendered militant and admitted to working for the STF; what was the 'incontrovertible evidence' that led the Government to amass soldiers on the border with Pakistan and why all we know about the five dead attackers is the (then) Home Minister L K Advani's statement that they looked like Pakistanis? Cumulatively, she argues and alleges that the unanswered questions suggest complicity, collusion and involvement of either the Government or some intelligence agency in the attack rather than mere incompetence in the subsequent investigation.
Roy calls for an impartial and independent inquiry into the Parliament Attack to reveal the truth about the incident. A similar call is voiced in a number of the other essays too. Given the otherwise ubiquity of committees and commissions set up (at last count three had investigated the Godhra incident, and at least five investigated various aspects of the 1984 Massacre of Sikhs in Delhi), it is surprising, to say the least, that none has yet been appointed to investigate the Parliament Attack. In fact uncharacteristically, not even the lapse of security, which allowed the white ambassador right inside the Parliament complex, has been investigated by an independent body. Further, as Sonia Jabbar in her essay Hang the Truth points out, the Special Cell of the Delhi Police was curiously preferred by the Home Ministry to investigate this case over the CBI which would be the otherwise first choice agency. That and the absence of a virtually mandatory 'Commission of Inquiry', if nothing else, make it tougher to reject the 'collusion and complicity' argument as a mere leftist 'conspiracy theory'. The call for an independent inquiry is in fact is not limited to this book alone. A citizens committee led by veteran Gandhian Nirmala Deshpande too previously sought the same but to no avail for there appears to be little interest shown by the establishment in such an inquiry.
No small part, in this collective national disinterest (and arguably selective amnesia), is played by the fact that a scapegoat is available. Not only has the judgement of the Supreme Court upholding Mohammad Afzal Guru's guilt and death sentence become the Holy Grail for all nationalists and self-declared protectors of the nation from terrorism; but the microscopic 'truth' that the Court has offered is deemed to be sufficient for most citizens. Since Afzal is guilty, why bother with asking any more questions? Perhaps fair logic, except that there's a huge question about what he's been found guilty for. With the Supreme Court itself rejecting Afzal's 'confessional' statement as unreliable and also acquitting Geelani, there is no support to the police's sequence of events leading up to the incident. The 'mastermind' theory too is put to rest as the Supreme Court has not found Afzal to be a member of any terrorist organisation.
The evidence against Afzal itself is full of holes. Roy in her second essay And His Life Should Become Extinct as well as other writers bring this out. Afzal's arrest was suspicious. Though the police claim that Geelani led them to Afzal, according to court records the police flashed an alert for Afzal and Shaukat on 15 December at 5:45 a.m. a full four hours before Geelani was arrested in Delhi. Afzal was eventually arrested at 11 a.m. the same morning in Srinagar, but his arrest and seizure memos are signed by Geelani's younger brother in Delhi! The laptop allegedly recovered from him was not sealed for a month and accessed even after sealing by the police enough time to add whatever they wanted. The evidence about Afzal purchasing the SIM card is unconvincing and the policeman who claimed to have recorded the phone instrument (IMEI) number stated in Court could not say how he knew the number. The call records produced in Court were dubious at best they even showed that two calls were made at one particular time from two different instruments using the same SIM card. Cloned SIM or doctored records? Your guess is as good as mine. The identification of Afzal by various shopkeepers was not done by the usual test-identification parade but he was in fact taken to the shops by the police.
Still, it did not pass any strictures against the police officers, nor did it initiate or suggest any reprimands or other action against them.
In fact, as Nirmalangshu Mukherjee in his essay
Should Mohammed Afzal die points out, some of the key 'facts' against
Afzal have been deemed to be proved as there was no challenge to the police
version of the facts. The identification of the terrorists killed in the attack
by Afzal is one such 'fact'. The genuineness of the identification memo was not
challenged by the defence lawyer. Mukherjee notes in the essay that Afzal later
stated in court that the police had forced him to identify (and therefore
sign the document). Similarly the lawyer did not dispute an
alleged signature by Afzal on the post-mortem report. Given that Afzal had
expressed a lack of faith in the lawyer appointed for his defence by the State,
such failures cannot be overstated.
Yet claims of inadequate representation were rejected by the higher courts. As Roy points out, no one has challenged the fact that Afzal did not have any lawyer for five months from his arrest till when the trial began (this includes the media and police confessions, but curiously enough, no confession before a magistrate!). Of course this is true for most accused in India, but this was not just any case. Given the uniqueness of this case and the pressure-cooker situation the trial took place in (a few months after the Gujarat riots of 2002), can one simply ignore the absence of adequate legal defence on the technical justifications provided by the High Court and the Supreme Court?
Further Nandita Haksar in her essay The Many Faces of Nationalism points out that the first lawyer (not named in the book) appointed upon the start of the trial never appeared at all. The second defence lawyer, Sima Gulati, appointed by the State and who had experience in 'terrorist' trials left Afzal to join Geelani's defence team. Four others, whose names Afzal suggested, refused to take up the case. Instead of trying any further, the Trial Judge elevated the second lawyer's junior Neeraj Bansal as the main defence lawyer for Afzal. Though the Supreme Court later noted that Bansal had experience in 'terrorist' trials, it ignores the fact that in all the other cases he had merely assisted the defence as a junior lawyer and this was the first time he was actually conducting a defence in a 'terrorist' trial. A fine time to experiment, in arguably the most politically charged trial of the decade, if not in the history of independent India!
True, the High Court and the Supreme Court were technically correct in noting that in India the right to legal aid does not include the right to choose one's counsel. But surely the Trial Judge could have appointed a more experienced lawyer as defence counsel? Instead as Haksar and Roy (in her second piece, 'And His Life Should Become Extinct') point out, the Judge suggested that if Afzal wasn't happy with his lawyer, he could cross-examine the witnesses himself! Going further, Senior Supreme Court Advocate Indira Jaising's certificate for a curative petition in the Supreme Court (Appendix II in the book) makes a strong argument that the access to an effective and adequate defence resulted in a 'constitutional error'. However, this too was subsequently rejected by the Supreme Court.
Non-recognition of poor legal representation of Afzal was not the only failing of the Courts. Upon his own acquittal, SAR Geelani remarked, as quoted by Haskar, "The acquittal of an innocent man is not an occasion for celebration, but a cause for reflection". Such reflection, as Haksar's essay shows, reveals this: though the Delhi High Court found no evidence whatsoever against Geelani and Afsan Guru and further observed that the police had not followed the procedures of arrest and even forged recovery documents and lied on oath, it still did not pass any strictures against the police officers, nor did it initiate or suggest any reprimands or other action against them. The failure to hold the police accountable was further compounded by the Supreme Court's unfortunate reference to 'needle of suspicion' while upholding Geelani's acquittal.
Other than issues of evidence, the decision by the Supreme Court to uphold the death sentence too raises concern. Praful Bidwai, in his essay Afzal Must Not Hang, points out that even POTA makes a distinction between committing a terrorist act punishable by death and conspiracy in such an act, punishable by life imprisonment. Yet Afzal, tried under POTA and IPC, after being found guilty of conspiracy in the commission of murder and waging war (both IPC offences) was sentenced to death for this "classic example of rarest of rare cases". Unfortunately the collection of essays does not interrogate the Supreme Court's application of the 'rarest of rare' formulations in this case particularly given the (admittedly) peripheral involvement of Afzal in the conspiracy. On the other hand the reference by the Supreme Court to the need to satisfy "the collective conscience of society" when sentencing Afzal to death suggests that the eventual sentencing was led by extraneous public opinion rather than evidence or law!
It is here that the role of the media in manufacturing opinion comes in. From not telecasting, on the police's direction, Afzal's statement during a police arranged press 'confessional' on 20 December 2001 where he absolved Geelani of any role in the attack, to the telecast of a 'docu-drama' based on the prosecution charge-sheet to the 'SMS Y to Hang Afzal' polls, the media has received careful attention in the collection, particularly in essays by Shuddhabrata Sengupta (Media Trials and Courtroom Tribulations) and SAR Geelani's brother, Syed Bismillah Geelani (The Media Constructs a Kashmiri Terrorist). Further as Roy chillingly shows, in many cases poor reporting was not simply laziness or indifference but part of a strategy to confuse and polarise. For instance, it was no coincidence that Pioneer editor Chandan Mitra who falsely wrote that Afzal was one of the actual attackers who killed three security personnel is also a BJP nominated Rajya Sabha member.
Will this 'collective conscience' be satisfied by the death sentence awarded or will it eventually require the execution to be actually carried out? Here A G Noorani's essay Popular Feeling in Kashmir Is Valid Ground To Grant Afzal Pardon on the complexities of the clemency jurisdiction of the President is a crucial contribution. After correctly identifying that the 'life-death' decision rests squarely on the Union Government, Noorani makes a persuasive and legally sound argument for public sentiment in Kashmir to be a valid ground for consideration in the clemency decision.
Of course the ongoing clemency-pardon debate in the country is itself a different topic with its own controversies. This has not been the central focus of the writers in this collection. But if it's an easy-flowing and pacy narrative that takes on the complexities of the Parliament Attack case that you're seeking, look no further than 13 Dec: A Reader.
