"And his life should become extinct"

Am reading the very disturbing "Listening to Grasshoppers" by Arundhati Roy. Wanted to do some kind of review of it, but gave up and am settling for extensively quoting from perhaps the most devastating piece , "And His Life Should Become Extinct". It is about the terrorist attack on the Indian Parliament in 2001 and the subsequent trial of one of the accused Mohammed Afzal, who is currently in jail having been awarded a death sentence that has not yet been carried out.

The original can (and should be) read here:
http://www.outlookindia.com/article.aspx?232979
http://www.countercurrents.org/hr-roy311006.htm

The Outlook article has some comments that refute some bits of Roy's research and are useful to read.

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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

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.)

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.


Afsan, who was pregnant when she was arrested, had her baby in prison. Her experience broke her. She now suffers from a serious psychiatric condition.

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.

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.


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.

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."



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.


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.

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?