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The attack on Parliament on December 13, 2001 was a major event in contemporary India. As the judicial procedure into this case nears its end, with Mohammed Afzal to be hanged on October 20
ATTACK ON INDIA'S PARLIAMENT :
LAST CHANCE TO KNOW WHAT REALLY HAPPENED

The attack on Parliament on December 13, 2001 was a major event in contemporary India. As the judicial procedure into this case nears its end, with Mohammed Afzal to be hanged on October 20, our effort to get at the truth as to what really happened is about to be scuttled. Who attacked Parliament and what was the conspiracy? On what basis did the NDA government take the country close to a nuclear war? What was the role of the State Task Force (J and K) on surrendered militants? What was the role of the Special Cell of Delhi Police in conducting the case?

by Nirmalangshu Mukherji

A sessions court in Delhi has announced that Mohammed Afzal,
sentenced to death by the Supreme Court of India on August 4, 2005,
is to be hanged on October 20, 2006. While the judicial procedure is
nearing its end in the Parliament attack case, have we under- stood
one of the major events of contemporary India? More importantly, will
the said completion of the judicial process in fact scuttle our
effort at understanding the event?

Limits of Judiciary

The questions just asked presuppose that the judgment of the Supreme
Court failed to provide the required understanding.  Why? As a court
of law, it is bound by a structure of responsibilities. In the
present case, the court was faced with four appeals: two by the Delhi
Police and one each by Afzal and Shaukat. To that end, it exam- ined
the evidence produced before the trial
court and the subsequent
judgments by the trial court and the high court. The evidence was
produced by an authorised investigating agency, namely, the Special
Cell of the Delhi Police, with its ACP Rajbir Singh as the
investigating officer. The evidence was presented in the trial court
with supporting materials and witnesses. Most of the evidence,
especially in Afzal's case, went unchallenged. The trial court
provided Afzal with an accredited lawyer who chose to remain largely
inactive.  In fairness, we must note that whenever the defence -
especially Gilani's and Shaukat's eminent team of lawyers - was able
to question some evidence success- fully, the high court and the
Supreme Court did take notice of that and set the evidence aside.
This is particularly true of the confessions obtained from Afzal and
Shaukat; setting them aside created a huge dent in the case, as the
Supreme Court noted. The high court in fact
reprimanded the police in
fairly strong terms for fabricating the arrest memos and for keeping
people under illegal confinement. In each case, Gilani's defence team
successfully produced counter-evidence. As for the overwhelming
evidence produced against Afzal, al- most nothing was challenged at
the trial court, making the task virtually insurmountable for his
defence in the appeal courts.  Looking at this evidence, therefore,
the Supreme Court was obliged to conclude that Afzal was guilty of
aiding and abetting the attackers.

To emphasise, although each of these have been fully documented
(December 13: Terror over Democracy, 2005 and reports by PUDR) the
Supreme Court was not seized of the role of the media in fanning
pre-trial hysteria, the notorious character of the investigating
agency, the mindset of the trial judge, and the role of Afzal's trial
lawyer. We have shown earlier (EPW, September 17, 2005) how
these
factors might have contaminated the evidence against Afzal and its
judicial examination. By design, the limited legal window through
which the court examined the In particular, the court was not endowed
with the task of explaining the attack.  Nonetheless, as noted, when
presented with credible arguments by the defence, the court did take
the bold step to set aside the confessions. Since the confessions
carried the only story of the conspiracy to attack the Parliament,
the court's story of the attack was swift and short.  What we learn
from the judgment is that five persons with sundry names attacked the
Parliament, killed some people, and died. And Mohammed Afzal aided
these attackers. Period.

Voices
The wider issues that surround the case - including the role, if any,
of Mohammed Afzal in it - can then be addressed in forums other than
a court of law. A large number of writers, academicians and lawyers

have raised a number of grave issues concerning the Parliament attack
case to which the judgment of the court provided no answers.
Importantly, as we will sample below, many of these concerns were
raised while the court deliberated on the case, and the concerns
continued even after the judgment was delivered. What are these
issues?  While the hearing in the court was nearing its end, lawyer
Usha Ramanathan wrote (Frontline, May 6, 2005), "the court, will not,
and is not expected to, concern itself with aspects that are not
directly relevant to the case of the accused before it. So, many
questions will inevitably, and predictably, remain uninvestigated in
the court's docket." One of the questions Ramanathan asked was: "Was
it an act of war? Or was it a terrorist act? Or perhaps a protest
employing extremist methods?  We don't know. But, on the presumption
that it was an act of war, the troops were massed along the
border,
Indian and Pakistani soldiers glowered at each other for nearly a
year, enormous resources were sunk into aggressive posturing,
soldiers lost their lives, over a hundred children reportedly fell
prey to land mines, and many farmers along this mined, potential
battlefield were left without a livelihood."

Noting that Mohammed Afzal, the prime  accused, was a surrendered
militant in regular contact with the State Task Force (STF) in
Kashmir, Ramanathan observed, "a surrendered militant is no longer a
militant but one who has chosen to return.  The surrendered militant
is in the uneasy zone where he is suspect on both sides of the
divide. The militants see in him a turncoat. The security forces and
the Special Task Force (STF) hold him in their thrall, while viewing
him constantly with suspicion." Specifically, "If a person under the
watchful eye of the STF could be part of a conspiracy to wage war
against
the state, how can anything less than a public inquiry do?
For this is not about the guilt or innocence of one man, but about
how a system works and what it means, to democracy, sovereignty and
the security of the state."

Yet, the "astonishing fact", Ramanathan suggested, was that "there
has never been a public inquiry into the attack on Parliament: not by
a parliamentary committee, not by the media, not an expanded search
by the police, nor even a commission of inquiry. When we picture the
parliamentarians huddled inside Parliament as the sounds from the
battleground outside told them of their narrow escape, it is
difficult to understand why no one, not in the ruling coalition, not
in the opposition, not in the secretariat of Parliament, thought
there should be an immediate and deep-reaching inquiry." Elsewhere
(The Book Review, May 5, 2005), Ramanathan wrote, "the only inquiry
of which the public has knowledge
has been translated into criminal
proceedings in the court. The micro- scopic nature of a trial in
court, however, means that it is only the accused whose conduct will
be interrogated and judged." About the failure of the media to
initiate a deep-reaching inquiry, Gouri Chatterjee wrote (The
Telegraph, June 30, 2005), "the media's unquestioning acceptance of
whatever the police fed them, no, directed them to say, their
complicity in the government's scheme of things are downright
embarrassing". Rajat Roy (Anandabazar Patrika, July 16, 2005)
illustrated the complicity of the media with the police by recounting
the event of Afzal's forced confession before the media. Subhendu
Dasgupta (EPW, July 22, 2006) summed up the complicity as follows:
"The truth that the media presented was incomplete, partial,
truncated, engineered and designed, and the judgment was made on the
basis of this truth. The media came to its judg-
ment before the
judicial process started.  The administrative truth was passed on to
the media; the media took the official truth and transformed it into
'media truth'." Notice that Dasgupta maintained this nearly one year
after the judgment of the Supreme Court. Commenting on the entire
episode, Gouri Chatterjee observed that "the greater tragedy is, we
are condemned to repeat all this the next time round too".  One year
after the judgment, Sukumar Muralidharan expanded on these themes
(Biblio, September-October 2005). "The December 13 event",
Muralidharan observed, "proved the pivot from which momentous
consequences followed. These involved issues of war and peace, the
security and well-being of the peoples of India and Pakistan, and the
posture that national governments in the two countries would adopt
towards the global struggle being waged between what was
'civilisation' and its supposed antithesis." Need- less
to say, none
of these momentous issues can be addressed without ascertaining the
facts surrounding the event. More specifically, "a well-informed
citizenry obviously owes itself the duty of unravelling the facts
behind the attack on a central institution of its democracy. And an
indispensable part of the process of ascertaining facts would be to
establish the motivations that led the Delhi Police into its sordid
saga of fabrication." After describing Afzal's predicaments as a
surrendered militant, Muralidharan observed, "any Indian citizen with
a basic level of civic involvement would be assailed by a number of
questions if she were to take the statements by Afzal in their
entirety". "Indeed", Muralidharan went on to observe, "the
conclusions that any observer who has not surrendered his critical
faculties to the cult of the nation state would be impelled to" are
"fraught with immensely disturbing consequences for the
functioning
of the Indian state and, hence, for the health of Indian democracy",
quoting from a recent book on the topic.

Appeal for Inquiry
Going beyond printed words in the margins of the media, a group of
citizens consisting of writers, academicians, lawyers, and
journalists have publicly appealed for a parliamentary inquiry into
the entire episode. A committee chaired by Nirmala Deshpande with
Mahasweta Devi, Rajni Kothari, Prabhat Patnaik, Ashish Nandy,
Prashant Bhushan, Sumanta Banerjee, Mihir Desai, and others as
members, held a press conference within a week of the judgment by the
Supreme Court. In its press statement the committee noted, "Afzal has
been convicted of conspiracy primarily on the basis of statements of
police witnesses and seizures of materials from
him shown by the police, which went un- rebutted during trial,
because Afzal was practically unrepresented in the trial. Be that as
it may,
the fact remains that the court has acquitted three of the
four persons charged of conspiracy and has held that the manner and
circumstances in which the confessions were obtained, makes them
unreliable. However, it is only on the basis of these unreliable
confessions that the then government immediately committed the
country to a full-scale war mobilisation against Pakistan with the
possibility that it might have escalated to a nuclear war. The
mobilisation was used by the NDA government for political purposes.
POTA was immediately enacted, and anti-Pakistan as well as communal
feelings were whipped up in the war hysteria which was drummed up
taking advantage of the attack on Parliament." Soon after, the
committee appealed to the members of Parliament in the following
words, with supporting documentation:

Members of the Committee as well as reputed human rights
organisations have been raising serious questions on
the con- duct of
the previous NDA government, especially the functioning of the
investiga- ting agencies, in the Parliament attack case.  In the
light of the Supreme Court judgment of August 4, 2005, we wish to
draw your attention to these apprehensions.

(1) The NDA government initiated a full- scale mobilisation for
war against Pakistan, saying that the terrorists were Pakistanis
sponsored by the Pakistan govern- ment. The war-effort, which was
sustained for nearly a year, had very serious con- sequences. We have
mentioned them in our public appeal located at Appendix 1.  The only
evidence of terrorist conspiracy originating from Pakistan is
Mohammed Afzal's confessional statement. The Su- preme Court has held
that the confession is unreliable. With the confession set aside, we
do not know who attacked Parliament and what was the conspiracy.

(2) Mohammed Afzal, the only person found guilty of conspiracy by

the Apex Court, is a surrendered militant, who was not only supposed
to report regularly to the Special Task Force of J and K, but was
also under their surveillance. How could such a person mastermind and
execute such a complex conspiracy? How could a terrorist organisation
rely upon such a person as the principal link for their operation? On
whose behest was he acting?  Is there some credibility to Afzal's
statement, noted at Appendix 2, that both the leader of the attack,
Mohammed, and that one of the masterminds in Kashmir, Tariq actually
belonged to the Special Task Force? What is the significance of the
press report that 4 terrorists including one Hamza - the same name as
one of the terrorists killed in the Parliament attack and supposedly
identified by Afzal - had been arrested by the Thane police in
November 2000 and handed over to the J and K police for further
investigation?  The press report is located at
Appendix 3.  It will
be a travesty of justice to hang Mohammed Afzal without ascertaining
answers to these questions.

(3) With the acquittal of three out of four persons from the
charge of conspiracy, it is clear that the investigating agency tried
to frame at least three innocent persons.  The high court had found
the agency guilty of producing false arrest memos, doctoring
telephone conversations, and illegal confinement of people to force
them to sign blank papers. It is also clear that false confessions
were extracted by torture.
In the absence of alternative explanations, it seems that the NDA
government was massively fooled by its own police. The country must
learn the truth behind the attacks. Responsibility must be fixed for
those guilty of negligence, concoction of evidence, and propagation
of deliberate falsehood. Above all, those who almost took the country
to war in such a reckless manner must be
made accountable. To that
end, the Committee has already issued an appeal for Parliamentary
inquiry.  Some press coverage of the appeal is shown at Appendix 4.
There have been other recent appeals for a public inquiry on the
case, shown at Appendix 5. We urge you to institute a Parliamentary
inquiry at least on the following questions:

(1) Who attacked Parliament and what was the conspiracy?
(2) On what basis did the NDA government take the country close
to a nuclear war?
(3) What was the role of the State Task Force (J and K) on
surrendered militants?
(4) What was the role of the Special Cell of Delhi Police in
conducting the case?
(5) What institutional and legal changes are required to prevent
a government from going to war unilaterally without the consent of
Parliament as in this case?

The political system has failed to take the steps to answer the grave
questions raised at length by eminent
citizens. And the time is
running out for initiating any fruitful inquiry on these questions.
From what we can see through the restricted legal window of the
Supreme Court, just six persons are in view, five attackers and
Mohammed Afzal, as noted. Since the attackers died on the spot,
Mohammed Afzal is the only living soul who, according to the Supreme
Court, might know something of what really happened.  Mohammed Afzal
has not been heard yet(Nandita Haksar, Indian Express, September 30,
2006).

(Published earlier in The Economic and Political Weekly, October 7, 2006)


II.
Outlook - Web | Oct 17, 2006

RETRIBUTIVE VIOLENCE BY THE STATE
Capital punishment is no deterrence for those who are prepared to die
anyway for a cause. This is in fact likely to create more such
militants. One can deal with such people only by trying to address
their sense of grievance.

by Prashant Bhushan

The fixing
of the date for Mohammad Afzal's execution for his
conviction in the Parliament attack case has triggered a lively
debate on the desirability of the death penalty and whether Afzal's
sentence should be commuted by the President in the exercise of his
prerogative powers under Article 72 of the Constitution. The Supreme
Court's recent judgement quashing the exercise of this power by the
Governor of Andhra (who remitted the 10 year sentence to a Congress
party activist for murdering a political opponent), has added further
fuel to this fire. What then is the scope of the Presidential power
of pardon and when can it be judicially reviewed?

Article 72 provides that

     "The President shall have the power to grant pardons, reprieves,
respites and remissions of punishment or to suspend, remit or commute
the sentence of any person convicted of any offence-

     (a) In all cases where the punishment or sentence is by
a Court Martial;

     (b) in all cases where the punishment or sentence is for an
offence against any law relating to a matter to which the executive
power of the Union extends;

     (c) in all cases where the sentence is a sentence of death."

This power has been examined in a number of cases by the Supreme
Court prior to the recent Andhra judgment. It has been consistently
held that;

(1) The President in the exercise of this power is bound to act on
the advice of the Cabinet;

(2) That the exercise of this power is subject to judicial review;

(3) However, the scope of the judicial review is limited to only
examining whether there has been application of mind by the
government and whether the power has been exercised on extraneous or
malafide considerations;

(4) Once it is found that the there has been application of mind and
there are no extraneous or malafide considerations, the court
will
not interfere with the government's prerogative power by substituting
its own judgment over the government's.

So the crux of the issue is: What are extraneous or malafide
considerations? In this, the recent Supreme Court judgement in Gowra
Venkat Reddy's case essentially does not depart from previous
judgements. Considerations of caste, religion or political loyalty
would be clearly extraneous considerations. In Venkat Reddy's case,
the court came of the conclusion that the pardon was granted for
malafide considerations of political loyalty. However, it has been
held earlier that the government can examine the evidence afresh and
can exercise this power even on the ground that in its opinion
justice has not been done, or that the sentence is unduly harsh. But
what about a case where the government comes to the conclusion that
the execution of the sentence of death would create a strong sense of
alienation
among a significant section of people or that it will
encourage and provoke several others to take to militancy? Would that
be a relevant consideration for granting clemency or commuting a
death sentence?

These are the precise questions which will arise in Mohammad Afzal's
case when the government considers the clemency plea on his behalf.
The issues are: Did he get a fair trial and, in particular, did he
have a proper defence lawyer in the trial? Is the death sentence
unduly harsh, considering that he was not guilty of any violent act?
Will his execution seriously alienate people in the Kashmir valley
and push some towards militancy? Will the grant of clemency to him
encourage militancy and inflame feelings of people outside the
valley? These are all relevant considerations for the government.

It would have to decide by taking all this into account.

Afzal in fact did not have a proper defence lawyer. Since
the lawyers
that he had wanted refused to appear on his behalf, he was provided
with a novice by the trial court who hardly cross examined any
witness against Afzal. Given the amount of fabrication of evidence
and forced confessions obtained by the police in this case, which has
been found even by the Supreme Court, it is not impossible that the
evidence on which Afzal was convicted may have been rubbished if he
had a proper lawyer in the trial court. Moreover, Afzal has not been
convicted for any overt act of violence but only for providing help
to the terrorists. A court which normally does not award death
sentence in such cases awarded it "to satisfy the collective
conscience of the nation". The government can certainly take the view
that this is not appropriate or that this would alienate and inflame
the collective conscience of the people of Kashmir.

From the opinion polls and the reactions of the people in
the Valley
and that of the rest of the country, it is clear that there is a
complete disconnect between the valley and the rest of the country.
The majority of the people outside the valley have no idea of the
level of alienation and anger against India. Far from containing
militancy, the presence of a 6,00,000 strong security forces in the
Valley is only fuelling the militancy. Hanging Afzal is likely to
further fuel the militancy, just as the hanging of Maqbool Bhat did
so earlier. These are all valid and germane considerations for the
government.

I however feel that the death sentence should be commuted in such
cases because the crimes of Afzal or even the terrorists who attacked
Parliament are not committed for personal gain but because they nurse
a strong sense of grievance against the perceived injustice done to
them by the Indian State. Their crime was seen by them as a cause for
which they were prepared
to die. Such people can not be deterred by
hanging them. This is in fact likely to create more such militants.
One can deal with such people only by trying to address their sense
of grievance.

More fundamentally, however, capital punishment is a form of
retributive violence by the State which only increases the culture of
violence in any society. This culture has been promoted by B and C
grade Bollywood films which romanticize violence and in particular
retributive violence. That is why, on the basis of deep sociological
analysis, capital punishment, has been abolished in 129 countries of
the world. Violent crimes have decreased in the Countries where it
has been abolished. Even in the US, the incidence of violent crimes
is more in the States which have opted to continue with the death
penalty.

There are many reasons therefore for commuting Afzal's death penalty.
But given the charged opinions on this issue
and with the BJP
threatening to make this a national issue, I doubt that this
government would have the courage to decide this matter on rational
and relevant considerations.

Prashant Bhushan is a senior Supreme Court lawyer.

III.
Posted on reader-list from sarai.net
Date: Mon, 16 Oct 2006 22:57:06 +0530

SATYAMEVA JAYATE? : WITH REGARD TO THE IMPENDING EXECUTION OF MOHAMMAD
AFZAL GURU IN TIHAR JAIL.

Shuddhabrata Sengupta


A few days from now, a man called Mohammad Afzal Guru, son of Habibullah
Guru, currently resident in Ward Number 6 of Jail Number 1 in Tihar
Central Prison in Delhi will hang to satisfy the bloodlust of the Indian
Republic, unless the President of India thinks otherwise,  A few weeks
ago, I recall reading the NDTV newscaster Barkha Dutt's breathless three
cheers for the fact that India retains the death penalty (so that the
indignant tears in the eyes of television presenters
like herself, and
the loved ones of murder victims, can be wiped away with each rope that
tightens around the neck of condemned prisoners). [See 'A Battle for
Life : Barkha Dutt, on NDTV Columns, September 20, 2006
http://www.ndtv.com/columns/showcolumns.asp?id=1061 ]

At times like this, when hangmen are asked to practice their moves,
nothing comes more in handy than the teflon coated enthusiasm for
capital punishment of television crusaders like Barkha Dutt. Great
democracies, like the United States of America, the Islamic Republics of
Iran and Pakistan, the Peoples Republic of China, the Democratic Peoples
Republic of Korea and enlightened states like the Kingdom of Saudi
Arabia are known for their zeal in retaining the death penalty as a
necessary part of state ritual. The Republic of India is in eminent
company, and I am grateful to Barkha Dutt for making me
remember that. I
need not advance moral and ethical arguments against the death penalty
here, because they have been so well countered by Ms. Dutt. Never mind
the fact that states that have done away with the death penalty have
lower rates of violent crime, never mind the fact the innocence of
people that  condemned to die has often been established after they have
been executed. Ms. Dutt has demonstrated that the death penalty is the
balm that comforts her agonized soul. And many of those who argue that
the President should not in fact assent to the petition filed by Afzal's
family are also arguing that the Afzal must hang so that the Indian
democracy and the loved ones of those who died defending the Indian
parliament may rest in peace. The dignity of the Indian Republic hinges
on the lever that will catapult Afzal into the empty space under the
gallows in Tihar jail. As the noose tightens, our polity will blossom
with renewed
vigour.

In championing capital punishment, Barkha Dutt also joins the
illustrious pantheon of the good and the great in India, such as Shri
L.K. Advani, Shri Maninderjeet Singh Bitta (of the All India Anti
Terrorist Front) and Shri Buddhadev Bhattacharya who have all, from time
to time, publicly expressed their desire to see different people hanged
to death in recent times. Politicians such as Ghulam Nabi Azad who have
pleaded for a 'postponement' of Afzal's execution in view of 'prevailing
circumstances' are as cynical as those (especially in the BJP) who
demand that Afzal be hanged as soon as possible while simultaneously
demanding that the unfortunate man called Sarabjit Singh who is held in
death row in a Pakistani prison be released. Broadly echoing the Ghulam
Nabi Azad line (with some nuanced differences) is the gerontocray of the
Communist Party of India, which has not found fault with the verdict,
only expressed an
apprehension about the consequences of its execution.
The central leadership of the Communist Part of India (Marxist) has
maintained an undignified and convenient silence, even though its
prominent legislator in Kashmir, Yusuf Tarigami has publicly opposed the
death penalty for Afzal. Farooq Abdullah of the National Conference in
Jammu and Kashmir has suddenly discovered what he calls 'innocence' in
Mohammad Afzal Guru in an interview given to Karan Thapar, and this is
somewhat belated, because he never said a word about the 13 December
Case while he was a coalition partner of the then ruling NDA.
Presumably, the National Conference's sensitivity to the issue of Human
Rights violations in Jammu and Kashmir have an inverse relationship to
the fact of its being in office in that state. The only Indian
politician of any stature who has publicly expressed a principled
opposition to the death penalty, and to capital punishment as such,
is
the DMK patriarch K. Karunanidhi. The Indian political class's romance
with the death penalty is not anything new, and we must remember that
even Mohandas Karamchand Gandhi could see nothing wrong in Bhagat Singh
being hanged. Capital Punishment and the core values of Indian
Nationalism seem to have a close relationship. Perhaps they are both
predicated on the idea that the nation-state and the rule of law demands
sacrificial victims from time to time to re-invigorate the tired
vitality of its foundations. The Indian state hanged Kehar Singh when it
could not find anyone else to hang in order to restore it's vitality in
the Indira Gandhi Assasination case, and this time, Mohammad Afzal Guru
must serve that necessary function. Perhaps Giorgio Agamben, whose
rediscovery of the concept of the pariah turned sacrificial victim of
the foundational violence of the state though the term - Home Sacer has
found such contemporary resonance
in the light of Abu Ghraib and
Guantanamo Bay , needs to turn his attention to the precincts of the
maximum security ward in Tihar Prison. Mohammad Afzal Guru is as likey a
candidate today as any for the status of Homo Sacer.

Today, I read Vir Sanghvi, another eminent media mandarin, wrestle with
his conscience about whether or not Afzal should hang. In a large op-ed
piece in the Hindustan Times e paper next to a smaller piece from Karan
Thapar that hesitantly takes a different view.

[See - The Complexity of Execution, Vir Sanghvi, Counterpoint, Hindustan
Times, October 15, 2006
http://www.hindustantimes.com/news/181_1820675,00300001.htm
and - Should Mohammad Afzal be Hanged, Karan Thapar, Hindustan Times,
Sunday Sentiments, October 15, 2006
http://www.hindustantimes.com/news/181_1820688,00300002.htm]

And like all good Indian liberals who won debating prizes in high
school,  Sanghvi too does this by dispassionately examining the pros
('good strong signal to 'terrorists') and cons ('this damn inconvenience
of the fact that he did not really have a legal defence') of execution
before saying -  "um, yes, maybe, there will be some good that can come
out of hanging him, because you know, it might, you know, stop a
hijacking, because, you know, you can't really hijack a plane to ask for
a dead man to be brought alive, can you" - impeccable reasoning, and so
much more reassuring for Vir Sanghvi the next time he checks in to fly.
Dead Afzal, no hijakers. Its as simple as that. In fact we should
logically follow through with the Sanghvi logic to propose that  all the
prisoners in Tihar jail  be summarily
executed tomorrow.  it would solve
the burgeoning Indian aviation industry's security concerns for the next
ten years. Conscientious Citizens like Barkha Dutt and Vir Sanghvi
should be invited to conduct executions, preferably live, on television
(there is always such a shortage of hangmen, and it would make for such
good reality tv, and people could phone in saying how much more tranquil
they feel when they watch an execution) in order to redeem frequent
flyer points against swift and successful hangings. The more they hang,
the higher they will fly. Fasten seat belts and hang a Kashmiri.

I wish I were in Delhi, where I could get more of a sense of what is
going on, talk to people, get a grip on the fact that there are faces
that I would see and voices that I would hear of many people I know who
would not be as hysterically celebratory about hanging people in prisons
as the firm of Dutt, Singhvi & Co and others like them
happen to be.
But all I can do is read what I can where I am from the internet. So my
day begins (when I get online) by typing the words 'Afzal', 'Guru' and
'Hanging' on google, and hoping that I can soon add 'Clemency' or
'Commutation' to my search string to yield some hopeful result. When I
did add the word 'clemency' or 'pardon' recently, I got a result that
confirmed my long held views on the wisdom inherent in our republic's
judicial apparatus. The lord justices of the Supreme Court of India have
sent out a thinly veiled warning addressed to the President, instructing
him to act with caution, or else provoke a judicial review of the
executive authority of the Presidency. Their words suggest that the
President must exercise the utmost restraint and consideration, and not
be carried away by passion, in arriving at any decision regarding the
death penalty awarded to Mohammad Afzal Guru.

It seems remarkable to me to think that
the state's decision to kill a
man in cold blood should be prefaced in terms of reason, caution,
consideration and restraint, and that the mere consideration of reasons
to save that life should be qualified by terms that suggest that even
the entertainment of such a thought could be unreasonable, excessive,
rash and impudent.

I have remarked on the sagacity of the Supreme Court of India on other
occasions, especially when the lord justices have passed innovative
verdicts that suggest that illegal squatters on urban land in a city
like should think more carefully about inclement weather, but I am once
again amazed at the wisdom and sopistication that some lord justices of
the  Supreme Court, and other distinguished legal professionals like
Soli Sorabjee, our erstwhile attorney general, have displayed in
suggesting that even the banal human quality of compassion, or the
ordinary, commonplace tendency to doubt that justice has
been done when
an accused person has gone unheard, or apprehensions about the
unleashing of a new spiral of violence, can on occasion be wild,
unreasonable, excessive and ever so intemperate. It is evident from the
tenor of their pronouncements that cheap sentiments like sympathy, or
ordinary doubts about the due processes of trial, or worries about more
loss of life, when seen through the exalted filter of national security,
are but irritating excesses that need to be held in check. That truth
alone must triumph that the Supreme Court, the Ministry of Home Affairs
and the Intelligence Bureau deem acceptable for the health of the Republic.

In view of this, we might as well propose an amendment to the
constitution such that the national motto be expanded to read -
'Sravoccha Nyayalaya-cha-Guptachara Vibhaga-cha-Griha Mantralayasya
Satyameva Jayate". Such a move would yield a national motto or slogan
that would render a resonant
and precise statement about the present
status of the concept known as the truth in the Indian Republic,
especially in the wake of the events of the 13th of December, 2001. To
have all manner of truths, especially crassly inconvenient and common
ones emerge triumphant, such as the fact that the Indian state is a
brutal colonial power that holds Kashmir and parts of the North East by
military force and with the aid of  "shoot at whim" laws such as the
Armed Forces Special Powers Act will simply not do. We need refined and
processed truths - such as those that condemn Mohammad Afzal Guru to hang.

Still, It is possible that APJ Abdul Kalam (the man, not necessaily the
President, or the erstwhile weapons designer) may have some residual
human qualities that may make him look askance at the fact that Mohammad
Afzal Guru is sentenced to be hanged in a few days on the basis of
statements that actually clearly implicate agencies of the
Indian
Government such as the Special Task Force that operate in the territory
of Jammu and Kashmir occupied by India in the affair of the attack on
the Indian Parliament in December 2001. That is why the Supreme Court
must rush to protect APJ Abdul Kalam the President from being swayed by
APJ Abdul Kalam the human being. No untoward considerations, such as the
possibility of the outbreak of rage in the wake of a blatantly unfair
execution, or the simple injustice of a man being killed for being
trapped in circumstances that were totally beyond his control, must be
allowed to stay the  president's or the hangman's hand. He has listened
to Afzal's son and wife. He has given them his time, and that shows how
magnanimous the Indian state can be, and now, he must say no. Afzal must
die.

We do not need a reminder of the fact that Afzal's alleged involvement
in the planning of this attack is the only reason why he is
being
sentenced to die. Unlike, other instances of the award of capital
punishment, where the accused are likely to be people who have actually
killed other people in particularly heinous ways, Afzal is accused only
of being an an actor in a conspiracy, a cog in the wheel of terror. His
was not a hand that held a gun on that day. He fired no shots, killed no
one. He was caught because his phone number was in the phone directory
in one of the mobile phones found on the person of the dead terrorists.
In a letter written to his Supreme Court defence lawyer, Afzal points
out that his mobile phone has numbers of STF personnel, and the same
logic by which he is implicated in the conspiracy of December 13 should
logically lead to an investigation of the STF personnel's role in the event.

   If that is so, then it would be natural for us to expect that all
leads as to who else may be implicated in this conspiracy would have to
be
exhausted before any one of the conspirators or actors (in this case
Afzal) is given the ultimate punishment. We know that Afzal did not have
adequate legal representation in the course of his trial, but we also
know that he made statements that the court took note of, in the sense
that they are on the court record, which include statements that
implicate officers of the Special Task Force in Jammu and Kashmir. These
are public documents, and they have been meticulously collated in
NIrmalangshu Mukherjee's courageous and disturbing book on the December
13 case - (December 13: Terror over Democracy. Published by Bibliophile
South Asia, New Delhi. 2005). This book is available at any good
bookship in Delhi, and I am amazed that the media has not in fact made
more of this story than it has.

[For more details of why Mohammad Afzal should not die, see Nirmalangshu
Mukherjee's excellent summary of the main arguments outlined in his
book
   in - 'Should Mohammad Afzal die?', The Economic and Political Weekly,
September 17, 2005 this article is available online at -
http://www.indianet.nl/indpk162.html#20050917b]

Perhaps, once again, phone calls from the Intelligence Bureau and the
Home Ministry to editorial offices of newspapers and television channels
have done their job. That is the charitable explanation, that the
majority of the media has acted out of fear. The uncharitable
explanation is that the media is silent about Afzal's relationship with
the STF for the same reason as to why it was so vocal in loudmouthing
SAR Geelani's presumed culpability in the same case. The mainstream
media, to a very large extent is not an organ that takes orders from the
intelligence apparatus. It is in fact a part of the intelligence
apparatus. The 13 December Case will go down in the history of Modern
India
as an instance  that revealed the extent of  embedding of the
intelligence apparatus of the Indian state within the so called 'free'
media in India.

In this delicate game of silence and overstatement, the courts have
based their indictment of Afzal partly on the statments made by him and
partly on confessions extracted under brutal physical and mental torture
in police custody, and the majority of the reporting in the media has
conveniently overlooked that fact that the names that have been named by
Afzal in these very statements point in the direction of the Indian
Government's security, intelligence and counter-insurgency apparatus in
Jammu and Kashmir. The 'needle of suspicion' to use another favourite
Supreme Court phrase, is pointing all over the place, but no one seems
to be looking. There is a pattern here that we need to recognize -  when
things are obvious, look away, and when truths need to be manufactured,
use every
tool in the book to manufacture them.

We need only to remember that barring Shams Tahir Khan of Aaj Tak, no
other journalist present during Afzal's infamous press conference stage
managed by Rajbir Singh the sometime decorated special cell police
officer, encounter expert and part time extortionist, had the gumption
to report that Afzal had in fact stated that SAR Geelani was in no way
involved with the events of December 13. All other journalists and the
news channels that they represented, who had been present at that
'encounter' with the truth according to the Delhi Police's Special Cell,
had fallen in line with Rajbir Singh's 'request' to edit out that part
of Afzal's testimony. The only English language national level
newspapers or publications that more or less consistently maintained an
independent tone were the Hindu and to some extent, Frontline. The only
news website that toed a slightly different line was rediff.com,
and the
only detailed un-biased reports that were published, could actually be
found in regional newspapers and publications, mainly in Kashmir, and
one, oddly in Kerala.

What this suggests is that the intensity in the court's and the broad
sweep of the national mainstream media's desire to execute Afzal and to
focus on him alone, to the exception of those individuals named by him
actually constitutes a move to consign aspects of the truth of what lay
behind the events of December 13, and the possible part played in them
by the 'deep state' in India, into a kind of oblivion - a black hole of
judicially mandated and media packaged silence from which nothing can be
recovered for posterity. With Afzal's death, the possibility of concrete
evidence for alternative  explanations behind the events of that day
will die. We will never know, who or what entity actually masterminded
the shootout in the Parliament that almost provoked a
nuclear war and
ensured the legislation of the infamous and now repealed Prevention of
Terrorism Act by the then BJP led NDA ruling alliance. If the sentence
is carried out, we will never know how much the shadowy senior echelons
of the intelligence community in India, or the then home minister and
deputy prime minister L.K. Advani, or the then defence minister George
Fernandes, or the then prime minister A.B. Vajpayee knew about the fact
that a medical and surgical equipment salesman and surrendered JKLF
militant called Mohammad Afzal Guru was  being 'cultivated' trhough
torture, threats and extorition by STF personnel and serving military
and para-military officers. We will never know as to whether or not
this 'cultivation'  led up to the processes that included his being
instructed to take a man called Mohammad to Delhi, who eventually turned
up as the body of a slain terrorist outside the Indian Parliament in
Delh on the 13th
of Decemberi. If Afzal dies, the deep state in India
will just get a few fathoms deeper, and many uncomfortable secrets will
die in its depths.

As I write this, I am sitting in far away London, looking at pictures of
Andamanese skulls, composite photographs of prisoners in British prisons
and fingerprint impressions of convicts taken in un-named colonial
prisons in nineteenth century India. Sometimes I do this in two rooms
scattered in the campus of the University College of London that houses
the remains of what was once founded as the National Eugenics Laboratory
by Francis Galton. Galton championed the idea that all social problems
could be solved by lessons learnt through indexing, recording and
measuring bodies and minds. The truths he sought to legislate, about
innate criminality and intrinsic genius, about racial characteristics
and inherited traits were to be made concrete by measuring heads and
deducing patterns from
accumulated fingerprint impressions. In a series
of haunting photographs, Galton produces what he calls
'photo-composites' -  anthropometric images obtained by layering
portraits on to each other such that the features blend in to create a
composite face. A face that takes something from all the faces that go
into it. So you have the average criminal, the average lunatic, the
average East End Jew, the average of eight Andamanese crania. When I
think of the events that unfolded on December 13, 2001, I cannot but
help think of Galton's photo-composites, and his attempts at deducing
the extent of criminality in a given population by producing an average
image based on the statistical relationships of the distance of their
noses from their chins. Remember how Mr. Advani, the then home minister
said on December 13, 2001, that the slain 'terrorists'  - 'looked like
Pakistanis'. Perhaps he had an image of the 'average' Pakistani stored
in
the database in his cranium, with which he could compare the features
of the dead men and come to this remarkable conclusion. Afzal's
indictment too, is an instance of the photo-compositing method of
jurisprudence. He is a Kashmiri Muslim man of a certain age, he once was
a JKLF activist, he moved often between Srinagar and Delhi for reasons
to do with his business.  It goes like this - you take any Kashmiri
Muslim man of a certain age, and they should look and sound adequately
Kashmiri, you identify the fact that they may sympathise or may once
have sympathised with the movement to rid Kashmir from brutal military
occupation (which is not hard to do, because most human beings would
want an end to the particular oppressions that beset them) , you zero in
on the fact that he moved between Delhi and Srinagar with some frequency
and you mix these facts together to produce the face of a terrorist.
There are thousands of such faces, and
what matters is not individual
culpability in a given act, or even whether a person was coerced or
bludgeoned or cajoled into participating in a chain of events, but that
he should 'look' the part. His face should be an echo of the 'composite'
of the visage of the terrorist that we have learnt to see in our heads.

So much so that when the judges see Afzal, they also see Maqbool Butt,
the Kashmiri man whose hanging on February 11, 1984, precipitated by a
crime (the assasination of the Indian diplomat Ravindra Mhatre in
Birmingham) that he did not commit, was one of the sparks that stoked
the ongoing Kashmir uprising. Maqbool Batt, who spent long years in
Indian and Pakistani prisons, was like Afzal. dogged by the persistent
shadow of his entanglement in Indian (and Pakistani) intelligence
maneouvres. He had been sentenced to death many years previously for the
alleged murder of an Indian military officer during the prehistory
of
the insurgency in Kashmir in the 1960s, when Butt had first started a
rag tag band of partisans called the National Liberation Front.
Subsequently, he may well have come under the shadow once again of
Indian intelligence outfits, who used him, it is alleged, to mastermind
the hijack of the Indian Airlines plane Ganga in 1971 - ( a remarkably
non violent hijack in which no passengers or crew were harmed, but an
ageing plane that had been out of commission and was surprisingly
brought back into use days before the hijack was conveniently blown up
while stationary in a Pakistani air field).

The shadowy truths of the RAW's involvement (through the Border Security
Force) in the hijacking of the Indian Airlines Fokker Friendship plane
Ganga, in 1971 (one of the precipitating factors of the 1971 war) with
which Batt had something to do, is one of those episodes in the history
of modern India which has never quite seen the light of
day. And Batt
too, like Afzal, may have eventually been a pawn in a game far more
complex then he could have comprehended at the time. It is possible that
Butt too, like Afzal was acting at least part of the time under orders
that emanated from quarters deep within the Indian deep state.
Eventually, Butt, the secular idealist, the sometime double agent, the
victim of Indian as well as Pakistani justice, returned to India, was
arrested and put away to be forgotten in Tihar prison, and in the wake
of Mhatre's kidnap and murder, made to walk to the gallows. While alive,
he had been an obscure, little known agitator, in death he became
'Shaheed-e-Kashmir'. He proved to be far more dangerous in his death to
the Indian state then he was when he had been alive, so much so that the
Indian army routinely swoops down on his village on the 11th of February
each year to prevent his family from holding a private memorial function
in his honour.
His brother too was killed in an encounter, his family
prevented from coming to Delhi on the day of his execution, and all
pictures or portaits of him have been taken away from the private homes
of his immediate family. The cynical shortsightedness and the awkward
combination of memory and forgetfulness that characterizes Indian state
policy in Kashmir may once again produce

Francis Galton's racially motivated pseudo-science died a quiet death,
and persists mainly as an object lesson in the dangers of the attempt to
harvest truths about the human condition on the basis of numbers alone.
But it is making a quiet back door entry through the new sciences of
biometrics that are at the core of the information technology of the war
against terrorism - which itself is the key operation of the settung up
of a new kind of state machinery predicated on the hyper-intensive
surveillance of  those it rules. This includes the impossible holy
grail
of machine assisted facial recognition as a preventive forensic measure
designed to identify and neutralize potential terrorists. This would
mean giving a scientific edge to say the act of hanging Mohammad Afzal
Guru were it to take place, before, not after the 13th of December.

In some crude ways this pre-cognitive neutralization of the terrorist to
be is already a refined science in Indian statecraft. It includes the
provisions of the Armed Forces Special Powers Act which enable armed
forces personnel to shoot to kill on the basis of suspicion. it is the
theory of the practice known as the 'encounter'. Last week, even as the
attempts to protest against the impending execution of Mohammad Afzal
Guru were gaining momentum, two other events occured in Delhi which
merit our attention. The first was a demonstration against the arrest
and forced feeding of Irom Sharmila, a young Manipuri woman who has been
on a continuous
hunger strike against the AFSPA, and the suspected
encounter death  of Irshad Ahmed Lone, a young Kashmiri man in Delhi.
While the first may have got some attention, the second is once again
wrapped in silence. Protests rocked the Channapora neighbourhood of
Srinagar at the manner in which his naked body showed visible marks of
torture. But the Delhi Police, and its Special Cell, thought it wise not
to display him as yet another trophy in their war against terror.
Perhaps, they thought, it would be too much to exhibit another
'encounter' in the days leading up to Afzal's execution.

In the light of this silence, it may be instructive to read a report
that appeared on the website of the Kashmir Times newspaper on October
11. It merits a lengthy quotation.

----------------------------------------------------------------------------------------------------------------
Kashmiri youth tortured, killed in Delhi
Protests rock
Srinagar, custodial killing alleged
KT NEWS SERVICE : http://www.kashmirtimes.com/news4.htm

SRINAGAR, OCT 11: People took to streets and held strong demonstrations
at Channapora here today in protest against the murder of a local youth,
Irshad Ahmad Lone, an automobile engineer, in New Delhi. Police burst
smoke shells and resorted to lathi charge to disperse the demonstrators,
who retaliated by pelting stones on cops..

The bereaved family accused Delhi police of arresting Irshad and later
killing him in custody. According to them the youth had gone to New
Delhi for a job in an automobile company on September 21. He was
arrested by police there and brutally tortured. Later they were informed
by a cop from the union capital on telephone that Irshad is in an
unconscious condition in a hospital. The youth later succumbed to his
injuries.

Ali Mohammad father of Irshad said
that in the morning of October 8 he
received a telephone call at his residence from New Delhi. The caller
identified himself as assistant sub inspector Ram Ji Lal of Inter-State
Bus Terminus (ISBT) police chowki Kashmiri Gate. The cop asked him
whether he knew Irshad. Ali Mohammad informed that he was his son. The
sub inspector told Ali Mohammad that his son was in an unconscious
condition at Sushrutra Trauma Centre.

Irshad's brother, Tariq Ahmad, rushed to Delhi. According to him, his
brother was in an unconscious condition with visible torture marks on
his body. Irshad's arms, throat and head had torture marks. He later
succumbed to his injuries. Tariq asked Ram Ji Lal as to what had
happened to Irshad. The cop claimed that they found Irshad in a naked
condition on a highway at ISBT Kashmiri Gate and that he was
unconscious. Asked as to how he got the telephone number of their
residence in Srinagar, Ram Ji Lal claimed that
Irshad gave the number
before he lost his consciousness.

The bereaved family members said if police got their phone number from
Irshad why it did not ask him as to who had tortured him. They said
Irshad was arrested, tortured and then killed by Delhi police. Since
this morning large number of people visited the affected family and were
waiting for the body till late this evening. The body is likely to reach
here during night hours...

Senior separatist leaders Mohammad Yasin Malik, chairman JKLF, and
Shabir Ahmad Shah, president of Democratic Freedom Party (DFP) visited
the bereaved family to offer their condolences. Addressing the people
there Shah said the way Irshad was murdered it clearly indicated that
Kashmiri youth can not go to any Indian state." Their only fault is that
they are Kashmiri", he said.
Shah alleged that on one side government of India is talking about peace
and on the other side leaving no stone
unturned to murder Kashmiri
youth. The DFP president was placed under house arrest. JKLF chairman
Mohammad Yasin Malik visited the residence of Irshad immediately after
his return from New Delhi. Accompanied by other party leaders, he took
part in protest demonstrations. Addressing the people, Malik strongly
condemned the killing. He asked as to what crime Irshad had committed."
Is being a Kashmiri the biggest crime", the JKLF chairman asked. He said
the slain engineer had qualified the interview for a job in Delhi on
merit. "But he was denied the job for being a Kashmiri. When he was
about to return his home, he was killed by unidentified men", Malik said. "

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

It appears from this report, and from the arrest of Irom Sharmila and
the police action in Delhi against those demonstrating  in solidarity
with her and
against the AFSPA, that being a certain kind of Kashmiri,
or having Manipuri or identifiably 'north eastern' features is in fact a
crime in the capital of the Indian Republic. The pre-cognitive faculties
of the state know that 'people like that' are potential subversives, and
that no effort should be spared in neutralizing them. If this does
result in the occasional execution of a Mohammad Afzal Guru or the death
on the streets of Delhi of an Irshad Ahmad Lone, then it is way to small
a price to pay for the integrity and security of the Indian state.
It is said took the massacres of Algerians in Paris in 1961 for a
generation of French Intellectuals to begin to understand the actual
nature of the French colonialism in Algeria. How many Kashmiris will
need to die in Delhi's streets and in Tihar (since the number of the
dead in Kashmir does not seem to have much of an effect) for the Indian
intelligentsia to wake up to the fact that the
Indian state is a
colonial state and that it acts like any occupying power would, in
Kashmir and significant parts of the North East?

In Afzal's written statement to his lawyer Sushil Kumar, posted earlier
on the Reader List (7th October, 2006) by Mahmood Farooqui, he (Afzal)
points out how Indian security officers routinely extorted money from
him because he was a 'surrendered militant' who had not become a special
police officer (SPO).

(see
http://www.humanrightskerala.com/index.php?optionfiltered=com_content&task=view&id=4384&Itemid=5
for an online version of this letter)


In this sordid tale of greed, where different police officers demand
varying sums of money after torturing Afzal, lies one of the secrets of
Indian colonialism in Kashmir. Our militaries are in Kashmir, Indian
soldiers and
countless Kashmiris are dying in Kashmir, also because
there is money to be made in this business. 'Terrorists' are just as
necessary a part of this equation. Because 'terrorists' become
'surrendered terrorists', and 'surrendered terrorists' are excellent
sources of cash, because if they do not pay up, they can be made to
become 'terrorists' again. Here is the time honoured police and gangster
tradition of the 'hafta' and 'vasuli' ratcheted up through the brute
force of a military occupation. This in fact is one of the sad truths of
the Indian state's presence in Kashmir, and for the sake of the triumph
of this truth, Mohammad Afzal Guru is sentenced to die.

I can only hope that APJ Abdul Kalam looks carefully at the motto
inscribed on his website, his stationery, his cutlery and his towels
before he goes to sleep each night in the next few days as he weighs the
decision about whether to assent to the clemency petition filed
by
Afzal's family. Satyameva Jayate.