If flagrant breaches of the law resulted in the execution of Afzal Guru, the ferocity of the reaction to it in Kashmir revealed the complete disconnect between the people of the State and their rulers in New Delhi. BY A.G. NOORANI

MOHAMMED AFZAL GURU is dead. He was executed in Tihar Jail in New Delhi on February 9, 2013, in indecent secrecy, in breach of all legal and moral rules. His body was buried inside the jail and his kin were informed only after his death. One is reminded of the remark by Bombay High Court Judge Justice S.R. Tendulkar: “One would have thought that the dark hours of the night are reserved for the perpetration of dark deeds, not for the execution of lawful orders.” That one remark stopped enforcement of orders for requisitioning flats in the night, which had become the norm in the Moraji Desai era in Bombay. Secrecy is antithetical to the rule of law as it is to decency.

The execution was perpetrated for blatantly electoral ends. But the ferocity of the reaction in Kashmir shocked its perpetrators in the government and others in New Delhi who had egged it on, within and outside the Congress. It revealed the complete disconnect between the people of Kashmir and their rulers in New Delhi as well as the chasm between the brave human rights activists who pleaded for Afzal Guru’s release and the smug ignorant ones who justified the execution, ironically in the name of the rule of law.

There was no excuse for the ignorance; for, the flagrant breaches of the law itself were documented in three excellent books (13 December: A Reader, with an Introduction by Arundhati Roy; Pengiun. A new edition is on the way; December 13: Terror over Democracy by Nirmalangshu Mukherji; Promilla & Co. and Bibliophile South Asia; and Framing Geelani, Hanging Afzal: Patriotism in the Time of Terror by Nandita Haksar; Promilla & Co. and Bibliophile South Asia).

Nirmalangshu Mukherji is Professor of Philosophy in Delhi University. An Introduction, written with the analytical rigour of an academic, precedes a collection of 18 telling documents. No lawyer, no educated person with any claim to self-respect should pronounce on Afzal’s death unless he has studied the record. TV anchors are not exempt from norms of decency; nor are their invitees. A foreword essay by Noam Chomsky entitled “Manipulation of Fear” adds to the merit of Prof. Mukherji’s work. Mention must also be made of an article of outstanding merit by Anjali Mody, who followed the trial closely and recorded the trial judge’s manifest unfairness. It is entitled “Chronicle of a Death Foretold: The Story of Mohammed Afzal” (Economic & Political Weekly, March 16, 2013).

Do not be misled by Kashmir Chief Minister Omar Abdullah’s belated reaction. New Delhi’s stooges try to act as brokers between an alienated people and a hostile New Delhi. They cannot deliver in the elections unless they win some popular support. They cannot continue in power unless they win an approving smile from their masters in New Delhi. The Congress is an indispensable ally in a coalition. The Jammu vote is important. Coalitions have become the norm.

There is something else, besides. Since the days of Sheikh Mohammed Abdullah, who bitterly complained to Jawaharlal Nehru about the nefarious activities of the Centre’s Intelligence Bureau in Kashmir, little knowing that it acted at Nehru’s behest, Kashmir has become a playground for multiple intelligence and security agencies. Two notorious figures—an ambitious former chief of the Research and Analysis Wing (RAW) and an ambitious and flamboyant retired bureaucrat close to the powers that be—are only the more glaring instances of arrogant men who seek to feather their own nests by promising the gullible in New Delhi that they could and would pull off a deal with some of the Hurriyat leaders whom they could manipulate. The courts have failed Kashmir repeatedly, in a host of cases. In this case, the judgments of all three courts—the trial court, the Delhi High Court and the Supreme Court—reek of patriotic fervour, which betrays lack of judicial objectivity and detachment.

The recent remarks of a courageous Union Minister touch the heart of the matter. On April 7, 2013, Union Minister for Rural Development Jairam Ramesh said in Srinagar that “secret agencies cannot be allowed to dictate our Kashmir policy”. He added: “What Kashmir needs is politics and development, not secret agencies… but what people see instead are security forces on the streets.”

Afzal Guru was admittedly a surrendered militant who was required to report to the agencies once a week, every Sunday. He was pitiably vulnerable to their pressures. The entire State of Jammu and Kashmir has felt the impact of their well-documented nefarious activities.

The entire case must be read in this context and in the historical context of great miscarriages of justice (Paul Scranton and Paul Gordon; Causes for Concern, Penguin; 1984). Following the Irish Republican Army’s bombing campaign in 1974, the “Birmingham Six” were convicted of 21 counts of murder. In 1976, the Court of Appeal dismissed their appeals. The six accused alleged torture and wrongdoing by the police. Evidence emerged to reveal their role. In 1991, the convictions were quashed. In Kashmir, surrendered militants were enrolled in 1993 to form an underground army, very much like those formed by Latin America’s gangster dictators. They were licensed to kill freely while under the dreaded Rashtriya Rifles’ (RR) control. Human Rights Watch (HRW) did a whole report on “India’s Secret Army”.

Adrian Levy and Cathy Scott-Clark won fame for exposing Pakistan’s deceit in their book Deception. In 2012, Penguin Books published their classic The Meadow, which captures the foul clime in Kashmir generated by the Army, the Border Security Force (BSF), the Central Reserve Police Force (CRPF), the surrendered militants and the State’s own Special Task Force (STF) and Crime Branch squad. Sanjay Kak’s expose “The apparatus” in The Caravan of March 2013 lays bare “the state’s terrifying impunity in Kashmir” (pages 44-53). Together, these forces have wreaked havoc in Kashmir and ruined very many innocent lives. This is why the authorities in Kashmir University are careful to select members of the audience so as not to let visitors like Rahul Gandhi speak to the students. Their families have suffered and they cry in anger and anguish if given a chance to speak. New Delhi does not want to hear them.

A personification of suffering

This explains why Afzal Guru’s death aroused the wrath it did. Unlike Maqbool Butt, he was not a symbol. He personified the lot of his people. They suffer at the hands of the very forces and the agencies as he did; until he was put to death. If acquitted, he would have spoken freely. He knew too much. The man had to be killed. It was a frame-up like the famous Birmingham Six and the Guildford Four. Only this time, there was no judicial redress.

The Chattisinghpura case illustrates the role of the dark forces. Thirty-six Sikhs were killed by “terrorists” on March 20, 2000, significantly on the eve of President Bill Clinton’s visit to India. The International Human Rights Organisation at Ludhiana comprising Sikh members alleged that the killers were surrendered militants in complicity with “intelligence agencies” (IHRO, Newsletter; Jan-April 2000; page 1). Five persons alleged to be those “terrorists” were killed by RR personnel in an encounter on March 25 at Pathribal. The Central Bureau 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 May 9, 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, Sudebar Idrees Khan and some members of 7 RR who were responsible for the killing of innocent persons.

Did the RR kill those men at the behest of someone in New Delhi who wished to impress Clinton? Who was he? In a report in Tehelka of October 13, 2007, entitled “Wrong Man to the Gallows”, Mihir Srivastava exposed the inconsistency in the police version in the case against a Pakistani who was also a RAW operative.

In Afzal Guru’s case some facts stand out like a sore thumb. He was not a terrorist, the Supreme Court held. Nor was he present at the scene of the crime on December 13, 2001, when Parliament House was attacked. He was a surrendered militant who had to report to his handlers at least once every week. Is it not odd that his alleged Pakistani mentors picked him to organise the attack? His “confession” was rejected by the Supreme Court. More, as will be pointed out, his confession before the TV channels was organised by a police official who openly intervened to ask Afzal to change his story. The police version about the arrests was rejected by the High Court. He had no counsel to defend him, which itself suffices to vitiate the entire trial. Lastly, all the three main police officers were discredited by their own conduct after the trial and in one case by brazen admission of merciless torture of Afzal.

These facts were known to all who cared to know; most certainly to the Union Home Ministry and, therefore, to President Pranab Kumar Mukherjee. Do you send a man to the gallows in such a case?

The only evidence against Afzal was the confession and circumstantial evidence. Since the confession was rejected, we are left with the evidence on the circumstances. But that evidence was created by the very police officers who had lied on the date and circumstances of the arrest and had forced Afzal to confess; both facts accepted by the Supreme Court.

The facts of the case

The facts are well known. On December 13, 2001, there was an attack by five armed men on Parliament House. They were killed. Four persons were tried as conspirators in the attack—Mohammed Afzal Guru, Prof. Syed Abdul Rehman Geelani, Shaukat Hussain Guru and his wife Afsan Guru. The police said that they, along with Mohammed Masood Azhar, Ghazi Baba and Tariq Ahmed and Pakistani nationals (the deceased terrorists in the attack) Mohammad Halder, Hamza, Raja and Rana, and some other unknown persons hatched up a conspiracy “to wage war against India” and to commit the terrorist attack.

The trial court sentenced Afzal Guru, S.A.R. Geelani and Shaukat Hussain to death on two counts and life imprisonment on several more and Afsan Guru 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 Afzal Guru, the High Court, citing the threat of “imminent war” with Pakistan, 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. Afzal Guru’s death sentence was upheld on two counts.

In its wake the Bharatiya Janata Party-led government mounted Operation Parakram. Half a million troops were massed on the border with Pakistan and along the Line of Control (LoC). It ended farcically with a loss of thousands of crores of rupees.

The circumstantial evidence

With superlative efficiency the police “cracked open” the case within days. As Anjali Mody succinctly sums up, the circumstantial evidence comprised the post-mortem report with Afzal Guru’s signature identifying the dead attackers; the phone call records showing the pattern of calls and phones in which different SIM cards were used; the laptop on which the templates of ID cards were found; and the testimonies of the police, landlords of flats, and owners of shops from where purchases had been made.

Afzal remained in police custody until early January, more than a fortnight longer than the other three accused, on the grounds that he was assisting the police in tracing the masterminds of the attack who were outside Delhi. How this time was spent was never accounted for.

“In all the time after his arrest on December 15, 2001 (including when his multiple ‘confessions’ were made), Mohammed Afzal had no access to independent legal advice, as was his right. This was a right that the police were required to inform him of, but did not. This was one of the grounds on which the Supreme Court rejected the confession and relied on circumstantial evidence to sentence Mohammed Afzal to death.

“The documents related to the arrests were fake or forged. Indeed, the High Court, on the basis of police case diaries, which are not available to the defence, showed that the arrest memos of Geelani, Mohammed Afzal and Shaukat Hussain were signed by Bismillah, Geelani’s brother. Bismillah was one of several members of the Geelani family who was in illegal police custody in Delhi. There was no record of the movement of the accused while in police custody, in violation of what is stipulated for those remanded to police custody. In the absence of such a record, the evidence that an accused has led the police to is only as good as the word of prosecution witnesses.”

Anjali Mody reported: “There were numerous instances where counsel showed that evidence which was supposedly sealed could not possibly have been. For example, the call records of a phone that was found on one of the dead terrorists showed that it was in use 12 hours after it was said to have been secured and sealed. This might suggest something as significant as a cloned phone was used, or something as banal as the police checked something in relation to the phone as part of their investigation. In the second phase, there should have been a paper trail indicating the unsealing and sealing of the phone. Files on the laptop, another crucial piece of evidence of Mohammed Afzal’s conviction, were also opened and accessed when it was ostensibly sealed.”

The phone instrument that linked Afzal Guru to the attackers was a piece of critical evidence, but the police officer who made the seizure and noted the unique 15-digit IMEI (International Mobile Equipment Identity) number identifying it could not explain how he had found this number.

Section 313 of the Code of Criminal Procedure (CrPC) 1973 enjoins the court, after the witnesses for the prosecution have been examined and before the accused is called on for his/her defence, to question the accused generally on the case. Why? “For the purpose of enabling the accused personally to explain any circumstances appearing in the case against him.”

Ram Jethmalani defended 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.”

Afzal Guru’s letter to advocate

But we have Afzal Guru’s detailed version in his letter to Sushil Kumar, a Senior Advocate who defended him in the Supreme Court against all odds. The record, including the Section 313 statement, is prepared in the trial court. The appeal courts depend on it. This is what Afzal Guru wrote: “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 for a surrendered militant. He had to either work as a Special Police Officer (that is, informer) for the STF or join the renegades under the patronage of security forces or police. “Every day SPOs were got killed by militants.” He started commission-based business earning Rs.4,000-Rs.5,000 a month. But since the informers (SPOs) usually harassed surrendered militants who did not work with the STF, etc., “from 1998-2000 I usually used to pay Rs.800”.

Once Afzal was whisked away by STF men in a bulletproof Gypsy to the Palhallan camp where he was tortured and asked to pay a lakh of rupees to the DSP. “Then they took me to [the] Humhama STF camp [Budgam district] where DSP Dravinder Singh also tortured me. One of his torture inspector [sic] as they called him, Shanti Singh, electrified me naked for three hours and made me drink water while giving electric shocks through telephone instrument. Ultimately I accepted to pay them Rs.1 lakh, [for] which my family sold the gold of my wife….” Note these names. Dravinder admitted the torture. On Shanti Singh, more later.

“In the same Humhama STF camp there was one more victim named Tariq. He suggested me that I should always cooperate 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 SSP Ashaq Hussain of Budgam.…

“One day Altaf took me to Dravinder Singh (DSP). 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 have 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 wanted to purchase a car. Thus I went with him to Karol Bagh. He purchased a 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….” This assignment which the naive Afzal accepted led to his ruin and to his death.

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 (Afsan), Geelani are the people behind Parliament [House] 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 cooperate with them. They tortured 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, handcuffed. There were NDTV, Aaj Tak, Zee News, Sahara TV, etc. Rajbeer Singh (ACP) 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 ACP Rajbeer Singh got up from his moving chair, he shouted at me and told me that he had already said [sic] me not to speak about Geelani in front of everybody (mediapersonnel). Rajbeer Singh’s behaviour exposed my helplessness and media personnel at least came to know that what Afzal is saying under threat or duress…. [Rajbeer Singh is the third of that disgraceful trio.]

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 at least 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 record 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 allthis criminal act which was designed and directed by STF and others which I don’t know. Special Police is definitely the part of the game because every time they forced me to remain silent…. May truth prevail.” It did not in the courts of law, but it should in the eyes of all who value the truth.