War over Kashmir and the undermining of Indian democracy
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Wed Oct 5 19:51:40 CDT 2005
South Asia Citizens Wire - Dispatch 2 | 06 October, 2005
War over Kashmir and the undermining of India's democracy
[1] Should Mohammad Afzal Die? (Nirmalangshu Mukherji)
[2] Statement of Sayed Abdul Rahman Geelani
[3] Test Case (Editorial , The Times of India)
______
[1]
The Economic and Political Weekly
September 17, 2005
SHOULD MOHAMMAD AFZAL DIE?
Three judicial pronouncements have been made on
the Parliament attack case including the latest
Supreme Court judgment. But certain questions are
still unanswered: Who attacked Parliament and
what was the conspiracy? On what basis did the
NDA government take the country close to a
nuclear war? What were the roles of the state
task force of Jammu and Kashmir and special cell
of Delhi police investigating the cases? Given
the momentous nature of these questions, for the
future of Indian democracy nothing less than a
Parliamentary enquiry is necessary to provide the
answers.
by Nirmalangshu Mukherji
The Supreme Court delivered its judgment on the
case relating to the December 13, 2001 attack on
Parliament on August 4, 2005. It acquitted S A R
Geelani and Afsan Guru from all charges, and
reduced the sentence for Shaukat Hussain Guru,
absolving him of all charges of conspiracy.
However, it upheld the judgment of the high court
in sentencing Mohammad Afzal to death for
actively participating in the conspiracy to
attack Parliament and waging war against the
Indian state. Afzal is characterised as a "menace
to the society", whose "life should become
extinct" to satisfy "the collective conscience of
the society."1
Within a day, the editorial of a respected
newspaper - known for its coverage of issues of
rights and justice - commented on this judgment.
It took a characteristically human view of the
verdicts on Geelani, Afsan and Shaukat. For
Afzal, however, the paper joined the judges in
speaking on behalf of the "collective conscience
of the society": "there is no warrant for any
special sympathy for Mohammad Afzal whose role as
a conspirator in the Parliament attack case -
which has been detailed by the prosecution and
confirmed by three courts of law - has been
established beyond a shadow of doubt."2
With three of the "estates of democracy"
surrounding him, Mohammad Afzal has little chance
of escaping the hangman. More significantly, as
the noose tightens, Afzal will die in silence.
Yet, there is the legislature - the first estate.
Is there a case for Mohammad Afzal before the
forum of the people?
Confession for the State
The judicial proceedings recorded two occasions
on which Mohammad Afzal spoke before the law: his
confessional statement before the police and his
statement under Section 313 of the Criminal
Procedure Code. There was also the "disclosure
statement" recorded by the police soon after his
arrest. But, disclosure statements by themselves
are not admissible as evidence.
In his confessional statement, Afzal narrated the
entire conspiracy and the operational details of
the attack on Parliament. I wish to draw the
attention to the following part of the story of
conspiracy.3 It begins with Maulana Masood
Azhar, the leader of Jaish-e-Mohammad, based in
Pakistan, instructing, at the instance of the
Inter-Services Intelligence (ISI), one Ghazi
Baba, the supreme commander of the outfit in
Kashmir, to carry out actions on important
institutions of India. Ghazi Baba directed one
Tariq Ahmed to arrange for an operation. Tariq
got in touch with Mohammad Afzal and motivated
him to join the jehad for the liberation of
Kashmir. Afzal met Ghazi Baba and the plan was
worked out. It was going to be a joint operation
of Jaish-e-Mohammad and Lashkar-e-Toiba. Begin-
ning with one Mohammad, Afzal arranged for
several militants - Haider, Hamza, Raja and Rana
- to bring huge quantities of arms, explosives
and a laptop computer to Delhi into pre-arranged
hideouts. In Delhi, the team got in touch with
Afzal's cousin, Shaukat Hussain Guru, Shaukat's
wife Afsan Guru and S A R Geelani, a lecturer of
Arabic in Delhi University.
In the beginning, the terrorists kept their
options open between the Delhi assembly, UK and
US embassies, Parliament and the airport.
Reconnaissance was conducted accordingly.
However, Ghazi Baba instructed them over
satellite telephone to attack Parliament. In a
final meeting on the night of December 12, 2001,
the militants handed over Rs 10 lakh to Afzal,
Shaukat and Geelani for their part in the
conspiracy; they also handed over the laptop to
be returned to Ghazi Baba.
This story was presented by the police, argued
for by the prosecution, propagated repeatedly in
full colours by the print and the visual media
for the past three and a half years, and ratified
by two courts of law. The prosecution's story was
transformed into a telefilm by Zee TV. "The film
was shown to the then prime minister and then the
home minister, and the media recorded their
approval of the film", Nandita Haksar
reports.4 The film was telecast repeatedly before
the first judgment on the case was delivered
(December 13, p 27 for more).
Apart from Afzal's confessional statement, there
was never an iota of independent evidence
corroborating the story just sketched (December
13, pp 41-44). Citing "incontrovertible evidence"
on the floor of Parliament and holding Pakistan
responsible for the attack, the government
mounted a massive military offensive that brought
India and Pakistan to the brink of war with
fingers on the nuclear trigger. Nearly 10,000
crore of rupees were spent and 800 soldiers died
in the war effort. Reportedly, over 100 children
died and many farmers lost their livelihoods due
to heavy mining in the border areas. "After the
unfortunate incident," the high court observed,
"the clouds of war with our neighbour loomed
large for a long period of time," "the nation
suffered not only an economic strain, but even
the trauma of an imminent war."5
The Supreme Court has now set aside Mohammad
Afzal's confessional statement in the following
words: "All these lapses and violations of
procedural safeguards guaranteed in the statute
itself impel us to hold that it is not safe to
act on the alleged confessional statement of
Afzal and place reliance on this item of evidence
on which the prosecution places heavy reliance"
(SCJ, pp 158-59).
With the confession set aside, the story of
conspiracy linking ISI, Masood Azhar,
Jaish-e-Mohammad, Lashkar-e-Toiba, Ghazi Baba,
Tariq, and the rest, disappears from the judgment
of the court. All we learn from the judgment is
that five heavily armed men with sundry names
attacked Indian Parliament and died, and that
Mohammad Afzal participated in the conspiracy
(SCJ, p 193). Period. In the two weeks since this
judgment, the entire media has failed to mention
this enormous fact.
The court's rejection of the confession has two
parts. In the first, it mentioned a series of
objections raised by the defence which the court
found "plausible and persuasive" (SCJ, p 149).
However, the court held that "it is not necessary
to rest our conclusion on these probabilities,"
since, in the second part, the court found some
direct reasons to set aside the confession. The
investigating agency, namely, the special cell of
the Delhi police, violated even the minimal
safeguards sanctioned under the otherwise
draconian POTA. These included the denial of
legal assistance to the accused after POTA was
introduced in the case, the failure to inform any
relative,6 taking the accused back to the police
custody after the confession, and the failure to
give the confessor sufficient time to reflect
before the confession (SCJ, pp 150-58). According
to the court, these violations themselves have a
"bearing on the voluntariness of confession"
(ibid, p 158).
Why were all these basic safeguards
systematically violated? For an answer, it is
worth discussing the "probabilities" which the
court found "plausible and persuasive"; they lead
us far beyond the restricted legal window through
which the court looked at the Parliament attack
case. For brevity, we discuss just the issue of
the timing of the confession (See December 13, pp
86-90, for more).
The confessions were recorded on December 21,
2001, after POTO was introduced in the case on
December 19. As noted, Afzal and Shaukat
allegedly made disclosure statements immediately
after their arrest on December 15, 2001.
Displaying incredible loquacity, both Afzal and
Shaukat had apparently poured out everything they
knew about the conspiracy. Following the
disclosures, the police had already gathered most
of the alleged facts of the case before December
19. The confessions themselves did not contain
anything that was not already available to the
police on independent investigation based on the
earlier disclosures (SCJ, p 148). Why then were
the confessions, allowed by POTO, needed?
More importantly, "there was no perceptible
reason why the accused should not have been
produced before a judicial magistrate for
recording a confession under the provision of Cr
P C" (ibid, p 148; also, p 59). According to the
court, the defence held that the accused were
"not prepared to make the confession in a court
and, therefore, the investigating authorities
found the ingenuity of adding POTA offences at
that stage so as to get the confession recorded
by a police officer according to the wishes of
the investigators" (ibid). As noted, the court
found this argument "plausible and persuasive".
Until alternative explanations are offered, the
following picture emerges. The government wanted
to use the 'window of opportunity' offered by the
attack on Parliament to go to war against
Pakistan (December 13, pp 5-13). After the
investigations were virtually over within days
after the attack, there was no evidence to link
the attack with Pakistan-sponsored terrorism.
Hence, POTO was belatedly introduced on the
December 19; soon after, the government mobilised
its troops. Afzal was made to confess before the
media on the December 20 so as to lend
credibility to the official confession to follow
on December 21. The eminent lawyer Shanti Bhusan
suggested that "the police failed to crack the
case" as "all the five militants died in the
attack". So the police "framed people" in order
"to create a conspiracy case" for the government
to take the country "to the brink of a
nuclear war".7
Once POTO was introduced, Rajbir Singh, an
assistant commissioner of police in the special
cell was made the investigating officer (IO) of
the case: "Singh was already under a cloud when
the home ministry, then under L K Advani,
appointed him to head the investigation into the
attack on the Indian Parliament".8
The appointment was technically correct, yet one
wonders if it was proper to appoint such a junior
officer as IO in this immensely complex and
sensitive case.9 The modus operandi of securing
the confession throws light on the issue. With
ACP Rajbir Singh as IO, the confession was
obtained by the DCP Ashok Chand in the special
cell itself. It is not surprising that legal
assistance was not offered, no relatives were
informed, and that Afzal was taken back to police
custody on some pretext. Things stayed within the
special cell, no chances were taken. Mohammad
Afzal was a pawn in the designs of the state.
Trial by Design
The introduction of POTO also allowed the trial
to be held in the designated special court for
POTA. The Indian law ministry appointed Shiv
Narayan Dhingra as a special judge: "by the
1990s, he was handling cases of terrorism and had
earned the name the hanging judge".10 The trial
began in June 2002 in an atmosphere in which the
trauma of an imminent war and the smoke from the
pogroms in Gujarat hung over the nation, the
country was baying for the blood of the accused
after a massive propaganda by the police and the
media,11 and POTA had become the law of the land.
Very few lawyers were willing to oblige: most
"did not want to be associated with the
Parliament attack case".12 Moreover, the special
judge ordered a 'fast-track' trial in this
immensely complex case. The trial lasted just
over five months in which the prosecution
presented 80 witnesses. It is hard to see how a
fair trial could be accomplished under these
conditions.
The defence of Mohammad Afzal, the key figure in
the state-sponsored story of conspiracy, suffered
the most. With great difficulty, Geelani's
defence managed to produce some witnesses; Afzal
had none. He had no legal defence in the period
between his arrest on December 15, 2001 and the
filing of the chargesheet on May 14, 2005; in
other words, no counsel had studied the complex
case. When he "declined to engage a counsel on
his own," the special judge appointed the noted
criminal lawyer Seema Gulati, who took charge on
May 17 along with her junior Neeraj Bansal (SCJ,
p 139).
On June 5, all the defence lawyers agreed not to
dispute postmortem reports, MLCs, and documents
related to recovery of guns and explosive
substances at the spot resulting in "dropping of
considerable number of witnesses for the
prosecution". The court did not dispute the
contention of the defence counsel at the Supreme
Court that Gulati "took no instructions from
Afzal or discussed the case with him". Taking a
strictly legalistic view, the court merely held
that the "counsel had excercised her discretion
reasonably. The appellant accused did not object
to this course adopted by the amicus throughout
the trial" (SCJ, p 140). On July 1, Gulati "filed
an application praying for her discharge from the
case citing a curious reason that she had been
engaged by another accused Gilani" (ibid, p 140).
On July 2, Gulati's junior Neeraj Bansal was
appointed amicus. Afzal protested against this
nomination on July 8 and submitted a list of four
senior advocates. Since none was willing to take
up the case, Bansal continued as amicus for the
rest of the trial. "In capital cases", Ram
Jethmalani observed, "particularly those that
arouse public prejudice and anger against the
accused making it difficult for them to arrange
for their own defence, it was the duty of the
court to provide adequate defence at state
expense". In response, taking a strictly
legalistic view, the Supreme Court held that
"taking an overall view of the assistance given
by the court and the performance of the counsel,
it cannot be said that the accused was denied the
facility of effective defence" (ibid pp 141-42).
The amicus, Neeraj Bansal, did not even pay a
visit to his client: "his presence and
participation have caused confusion and prejudice
vitiating the trial," Jethmalani observed.13
Afzal's wife Tabassum says, "The court appointed
a lawyer who never took instructions from Afzal,
or cross- examined the prosecution witnesses.
That lawyer was communal and showed his hatred
for my husband".14 The Supreme Court held that
the "criticism against the counsel seems to be an
afterthought raised at the appellate stage" (SCJ,
p 139). Where else could it be raised and who
could have raised it at the trial stage?
These concerns assume immense significance now
that the Supreme Court has sentenced Mohammad
Afzal to death on the sole basis of
circumstantial evidence admitted in the trial. We
must also note that this body of evidence was
presented by an investigating agency widely known
for false arrests and fake encounters.15 In the
Parliament case itself it is now clear that the
special cell tried to frame at least three
innocent persons. Earlier, the high court had
mentioned the production of false arrest memos,
doctoring of telephone conversations and illegal
confinement of people to force them to sign blank
papers. As we saw, it is evident that false
confessions were extracted by force.
This is not the place to study in detail the
Supreme Court's handling of the circumstantial
evidence against Mohammad Afzal. We will cite
just two pieces of evidence to illustrate the
general problem.
(1) The court held that Afzal knew the deceased
terrorists since he identified them. Afzal also
admitted the same in his confession. With the
confession set aside, the sole evidence against
Afzal is that he identified them in the morgue.
The evidence has two parts: the identification
memo prepared by the police (PW76), and Afzal's
signature against the column 'identified by' in
the postmortem report. As for the identification
memo, the court relied on it because "there was
not even a suggestion put to PW76 touching on the
genuineness of the documents relating to
identification memo" (SCJ, p 161); in other
words, Neeraj Bansal did not object. As for the
signatures, the defence counsels decided not to
dispute the postmortem reports, as noted. It did
not materially affect the other accused, but
Afzal is likely to pay with his life for this
decision taken without his consent. In his
statement u/s 313 Cr P C, Afzal said: "I had not
identified any terrorist. Police told me the
names of terrorists and forced me to identify"
(December13, p 165).
(2) It is a crucial part of the prosecution's
story that the police explain how they reached
Mohammad Afzal beginning with the site of attack;
otherwise, the arrests would seem to be
pre-planned rather than based on a chain of
leading evidence.16 The prosecution claimed that
the police finally reached Afzal through a
sequence of arrests beginning with Geelani, whom
the police could trace first because he held a
mobile phone registered with the telecom company
Airtel. But the letter from Airtel furnishing the
call records and Geelani's residential address
was dated December 17, 2001; all the accused had
been arrested by December 15. How could the
police arrest Geelani two days before it got the
phone records that "led" them to him? This letter
poses other serious problems for the
prosecution's case regarding the actual date on
which POTO was introduced in the case (December
13, pp 74-86). However, the court did not
"consider it necessary to delve further" into
this letter since "no question was put to PW35 -
the security manager of Airtel" (SCJ, p 30).
Further, "none of the witnesses pertaining to the
FIR were cross-examined" (SCJ, p 31).
Whatever be the legal merit of the court's
judgment on Afzal, the question arises as to
whether there is a moral warrant for capital
punishment on the basis of a trial like this.
A Surrendered Militant
The question of moral warrant arises from another
more insidious direction. Given the involuntary
nature of the confession, it is pertinent to
reflect on the fact that Afzal agreed to sign the
document at all. Was Afzal a free agent during
those early turbulent days right after the attack
when he was in police custody before and after
the making of the confession? Could he afford to
refuse the recording of his confession at that
stage when he had already done the rounds with
the police, allegedly incriminating himself in
everything that the police wanted?
These queries are compounded by the fact, as
repeatedly noted in all the judgments, that Afzal
is a surrendered militant. Afzal was not only
supposed to report regularly to the security
forces, but was also under their surveillance.
How could such a person mastermind and execute
such a complex conspiracy? And how could a
terrorist organisation rely upon such a person as
the principal link for their operation? Did he
enter into some arrangement with the security
forces to buy his survival? Some dark answers to
these questions begin to form when we look at
Afzal's statement 313.
The statement 313, unlike confession under POTA,
is made by an accused before the court rather
than before a police officer; also, this
statement is made when an accused is in judicial
custody, not in police custody. The special judge
of the POTA court recorded the fact that "a
surrendered terrorist has to mark his attendance
with regular intervals at the STF, J&K" (para
222). "STF, J&K" stands for State Task Force,
Jammu and Kashmir, a shadowy counter-insurgency
outfit of the state. To our knowledge, this fact
is stated only in Afzal's statement u/s 313
Cr P C. With this citation, therefore, the
Special Court judgment lend credibility to the
statement. Furthermore, there are manifest
instances of honesty and truthfulness in Afzal's
statement 313. For example, Afzal did not shy
away from admitting the possibly incriminating
fact that he brought Mohammad from Kashmir and
that he accompanied Mohammad when the latter
purchased a second-hand ambassador car. When his
lawyer attempted to deny this fact during the
trial, Afzal intervened to insist that he indeed
accompanied Mohammad (SCJ, p 182).
Pursuing the relevant paragraph of this statement
then, we learn about the circumstances of Afzal's
surrender to BSF in 1993 in detail. Afzal states:
he was frequently asked by the STF to work for
them; he often paid large sums of money to the
STF to avoid and/or escape detention; he was
detained as late as in 2000; he was asked to
become a special police officer, which is an
euphemism for 'police informer'; he met one Tariq
in the STF camp; this Tariq was already working
for the STF and he wanted Afzal to join the force
as well; Afzal was introduced to one Mohammad by
Tariq also in the STF camp; Tariq persuaded him
to take Mohammad to Delhi from where Mohammad was
planning to go abroad (December13, pp 90-92).
A number of disturbing consequences follow.
First, Afzal was in close touch with the security
agencies throughout the period 1993 to at least
2000. Second, three of the persons allegedly
involved in the attack - Tariq, Afzal, Mohammad:
the mastermind, the link, the leader of the
attack - originated from the STF camp itself. In
addition, we now know of a press report from
Thane that four terrorists including one 'Hamza'
- the same name as one of the terrorists killed
in the Parliament attack - had been arrested by
the Thane police in November 2000, and handed
over to the J and K police for further
investigation.17
Grave, unanswered questions surround the
Parliament attack case even after three judicial
pronouncements. 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?
It will be a travesty of justice to hang Mohammad
Afzal without ascertaining answers to these
questions. Given the momentous nature of these
questions, for the future of Indian democracy
nothing less than a Parliamentary inquiry is
needed to address them (December 13, pp 96-103).
Notes
1 Judgment of the Supreme Court of
India (henceforth, SCJ), August 4, 2005,
pp 203-04.
2 The Hindu, edit page, August 6, 2005.
3 For more details, see my December 13:
Terror over Democracy (henceforth,
December13), Bibliophile South Asia, New Delhi,
2005, pp 38-41.
4 Nandita Haksar, 'Tried by the Media: The S A R
Geelani Trial', Crisis/Media: Sarai Reader 04,
Centre for Studies in Developing Societies,
Delhi, February 2004, p 161.
5 Judgment of the high court, Murder Reference 1
of 2003, October 29, 2003, para 448.
6 The high court had observed earlier that
Afzal's arrest memo was in fact signed by
Geelani's brother, Bismillah, while Bismillah was
himself in 'illegal confinement' and he was
forced to 'sign papers' (judgment of the high
court, para 251).
7 Tehelka: The People's Paper, October 16, 2004, p 21.
8 Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.
9 In fact, 'It is indeed surprising thatŠ the
investigations were not handed over to the
premier investigating agency, the CBI, but to an
agency whose capacities are so much in doubt',
Trial of Errors: A Critique of the POTA Court
Judgment on the 13 December Case, Peoples Union
for Democratic Rights, Delhi, February 2003.
10 Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.
11 See my 'The Media and December 13', Znet South Asia, September 30, 2004.
12 Nandita Haksar and K Sanjay Singh, 'December 13', Seminar 521, January 2003.
13 Written submissions on behalf of S A R
Geelani, Murder Reference 1 of 2003, presented by
Ram Jethmalani, senior advocate.
14 'A Wife's Appeal for Justice', Kashmir Times, October 21, 2004.
15 For a recent review of the functioning of the
special cell, see my 'A Very Special Police',
Znet, June 29, 2005.
16 See December 13, pp 70-80 for a detailed
discussion of the murky business of arrest memos.
17 'What's In a Name?', Thaneplus, The Times of
India, Pune edition, December 26, 2001.
_____
[2]
Subject: Statement of SAR Geelani on Kashmir
Statement of Sayed Abdul Rahman Geelani made on
August 4, 2005 on the eve of Supreme Court verdict
in which he expands on the larger Kashmir Question
and the state of Indian Democracy, besides his
frame-up case in the Dec 2001 attack of Indian
parliament, assassination attempts and acquittal:
Statement of Sayed Abdul Rahman Geelani:
http://home.comcast.net/~akhila_raman/files/geelani_statement.html
****************************************
Statement of Sayed Abdul Rahman Geelani
New Delhi August 4, 2005
I have been accused of being a part of a conspiracy
to attack the Indian Parliament. I was arrested,
tortured and put in solitary confinement. From the
start I maintained that I was innocent and that the
police was trying to frame me. I was sentenced to
death on December 18, 2002. It is true that the Delhi
High Court acquitted me. And today the Supreme Court
has upheld the High Court's decision. Naturally I am
happy to be free man but I do not think an acquittal
of an innocent man is a cause for celebration. I think
it is a time for reflection on why he was framed and
sentenced to death without evidence.
I would like to use this occasion to reflect on my
experiences and share my thoughts on why I was framed.
I am a teacher by profession and it is the job of a
teacher to always reflect on his experience and draw
the right lessons from his experience, without anger
or bitterness. That is what my statement seeks to do.
The Kashmir Question
----------------------
I am a Kashmiri. I have grown up surrounded by the
awesome beauty of the snow-clad mountains and the
magnificent Chinar trees. However, when i think of
the Valley, it is not the beauty that I remember.
My life, like the lives of other Kashmiri people,
has been inextricably linked to the conflict that
has torn apart our land. I have seen young men with
broken bones and marks of torture buried by grieving
parents. I have seen the pain in the eyes of women
raped and the anguish of parents who cannot save their
small children from hurt. I have seen my own children
growing up with nightmares instead of dreams.
I do not write these words with any bitterness.
I have no personal animus against any of the policemen,
judges or jail authorities that have been the cause
of my suffering. I believe they are all part of the
system that has been responsible for the pain and grief
of many Kashmiris. I have not suffered any more than
other Kashmiri men have in my generation. I was illegally
arrested and tortured. So have many other thousands of
Kashmiri men. I was framed in a false case. This is true
for so many other Kashmiris who are even now languishing
in the same jail that I was lodged. I have been on death
row for less than a year but there has been an attempt on
my life. I am lucky because I have survived but so many
Kashmiris have been killed in false encounters even in
Delhi, the capital of democratic India.
My experience has given me an opportunity to see closely
the working of Indian democracy and its institutions.
And I think the rise of communal-fascist forces along
with the so-called war against terrorism has seriously
undermined the basic foundations of Indian democracy.
On the day I was released from the jail and I addressed
my first media conference I said that I believe there can
be no lasting peace in this region unless the Kashmir
question is resolved. And the resolution to the conflict
can only be achieved through political negotiations.
My statement angered many people, even those who are
known for their commitment to democratic values. My
supporters and I were called "Spoilers of the peace
process". The writer seemed to imply that my speaking
of Kashmir would endanger the Indo-Pakistan peace
process.
I do not understand why he should apprehend this.
Kashmiris want that Indo-Pakistan friendship
because without that there can be no real
development of Kashmir. But the pre-requisite
to this is that both India and Pakistan take
into account the aspirations of the people of
Jammu and Kashmir. The Kashmiri people's movement
for self-determination is not a reflection of the
wishes of one individual, organization or party.
Let us take the example of Sheikh Abdullah, the
tallest of the leaders to emerge from Kashmir.
He led the movement for years, he was imprisoned
and finally he capitulated by signing the agreement
in 1975. Fourteen years later, the people of Kashmir
once again rose up in revolt against injustice and
political dominance.
It is indeed disturbing that even those academics
and intellectuals who campaigned for my acquittal
felt uncomfortable when I reiterated my stand that
there can be no permanent solution to the Indo-Pakistan
conflict without taking into account the interests and
aspirations of the Kashmiri people.
Role of intelligence agencies
------------------------------
You will ask me why I am talking about general issues
instead of my own case. The reason is that I cannot
look at my experience apart from that of the Kashmiri
people. I believe I was framed in the Parliament attack
case only because I am a Kashmiri Muslim. And the
intelligence agencies had a hand in framing me.
Kashmir question is a political question and it must
be resolved through political negotiations, not by
intelligence agencies. These intelligence agencies have
systematically destroyed the credibility of individuals
and organizations through their disinformation campaign
through the media and when this does not succeed, they
have tried to buy people and if that does not work there
have been attempts to eliminate the Kashmiri who does not
succumb.
The intelligence agencies have created such a vicious
atmosphere that they do not want even the pro-India
leadership to have credibility in the eyes of their
fellow Kashmiris. They seem to be interested in
creating a political chaos so as to enhance their
own insidious role.
International human rights organizations have been
documenting the extra-judicial executions, false
encounters and widespread torture used in Kashmir
as a part of State policy. The attempt to break
the will of the people through such methods only
reflects a bankruptcy of politics and will
ultimately harm the democratic foundations of Indian polity.
There have been at least three attempts to eliminate
me, twice while I was inside the Tihar jail and once
when I was shot on February 8, 2005. There has been no
investigation into these attempted crimes. I believe
the reason is that all three attempts on my life were
engineered by the intelligence agencies. My colleagues,
lawyers and supporters all have expressed the same fear
and they even held a demonstration outside the Police
headquarters on February 9, 2005. However, there is no
mechanism to hold the intelligence agencies accountable
to the people.
Role of the police and judiciary
--------------------------------
I have had an opportunity to closely see the workings
of the courts and the police. What is most disturbing
is that when the police violates procedures and even
guidelines laid down by the Supreme Court the trial is
held legal. For instance, the police forged my arrest
memo and told lies on oath about my arrest. I was denied
access to a lawyer, and almost all safeguards with regard
to arrests and detention were flagrantly violated. Even
my two small children were arrested and detained for
several days. Senior advocates have expressed their
concern about the way the basic principles of criminal
justice system have been sabotaged.
It is true that the Delhi High Court acquitted me but
the judgement did not pass any strictures on the lower
court judge. The High Court observed that the police had
forged documents and fabricated evidence but did not
punish them for framing an innocent man. I know many of
the people from the University community were very unhappy
with me because I criticized the judiciary on my release.
And today when I stand acquitted by the Supreme Court they
would perhaps advise me to acknowledge the fact that the
Indian judiciary is independent. I have not yet read the
Supreme Court judgement so I do not know what the judgement
has to say about the police, the sessions judge or the
prosecution.
Kashmiri prisoners and detainees
------------------------------
But the fact remains that there are many Kashmiri prisoners
in various jails all over India. I know many of the prisoners
in Tihar jail have been framed. Some of them have not been
given a chargesheet, while others are waiting for several
years for their trials to begin and almost none of them
have the benefit of competent legal advice. I believe my
co-accused Mohammad Afzal also did not have proper legal
assistance. How can a man be condemned to death or life
imprisonment without being satisfied that he had been
given a fair trial? Who will compensate for the trauma
suffered by Afsan Guru who had to give birth to her first
baby in jail? Her acquittal after two years of jail
cannot bring back her dream of having a home and a family.
Her husband will languish in jail, the son will live
without his parents and we can only imagine how the
child will cope as he grows up.
There are so many young Kashmiri students who are in
jail and are released without even a chargesheet being
filed against them. They cannot go back to the
educational institutions after their release. Their
hopes of a professional career shattered.
Role of the Media
------------------
I believe the media has a crucial role to play in
protecting and preserving democratic institutions.
Unfortunately my experience has shown that the media
is no longer free. I do not know how far this is a
reflection of self-censorship or a reflection of
corporatization.
I believe the media is to a large extent responsible
for the sufferings of the people of Kashmir. They
have built an image of the Kashmiri Muslim has become
synonymous with terrorists. It was with the help of
the media that the police were able to carry out a
pernicious campaign against me in the first few days
after my arrest. Zee television made a film which
made allegations against me that even the police
have not made in the court.
Even after there was an attempt to assassinate me,
the media attacked me for not giving my statement
to the police. At that time, I was lying with various
tubes stuck in my body, my wounds not stitched and
I had not yet drunk water. On the pretext that I was
purposely delaying giving my statement and my doctors
were not co-operating, the Delhi Administration
appointed another doctor's team which included a
policeman to examine me again. And I was subjected
to humiliating examination even though the AIIMS
doctors had made it clear that I was not in a fit
condition to make a statement.
After I gave my statement to the police stating that
I believe that the attack on me was the work of the
Special Cell, the police tried to frame me once again.
They took away my computer hard disc and sent it to
the CFSL Lab in Ahmedabad. I do not know what the
CFSL report states but I fear that those who police
or intelligence agents who have tried to eliminate
me in the past will try to frame me once again.
The media has carried more reports on allegations
made by the police than tried to find out who was
behind the attack on me. Recently, a newspaper
carried a story that the attack on me was the
handiwork of Chota Rajan and IB.
Instead of attempting to investigate into the
reality, the media carried on making allegations
against my family members, friends and supporters.
I want to ask you, media persons today, do you
think that you have been fair to me?
Civil Society
-------------
I feel overwhelmed by emotion when I think of the
number of men and women who have supported the
campaign for my acquittal. Individual teachers,
students, civil right activists and many Indian
citizens scattered all over the country. I have
had very moving letters from many people expressing
their warmth, their best wishes and giving me their
blessings.
The fact that the Defence Committee could actually
break through the wall of prejudice and hate and
reach out to people all over the country is a
reflection of the fact that there is some democratic
space left within which we can work.
A small group of citizens gathered together to
defend me and launched an all India campaign for
my acquittal. I did not know many of them personally.
I believe these men and women fought not only for the
civil liberties of an individual but for Indian
democracy. Teachers of Delhi University and Jawaharlal
Nehru University sent an Open Letter to the Chief
Justice of India expressing their concern that I was
being denied a fair trial.
As I said, all those who campaigned for my acquittal
did so because of their own commitment to democratic
values, justice and freedom. But many of those men and
women have become my friends and have provided me
comfort and love. To each of them individually and to
all my friends, supporters and family, I would like
to extend my heartfelt thanks.
Acknowledgements
----------------
I know many people have hoped and prayed for my
acquittal. In Kashmir, the people had a three-day
bandh when the Sessions Court sentenced Afzal,
Shaukat and me to death. It was a mark of their
solidarity with their fellow Kashmiris. And I
was overwhelmed by the warm welcome I was given
from the people in Baramulla.
I would like to thank the All India Defence
Committee for SAR Geelani for their support and
solidarity, especially when many of them did not
agree with my political stands. The Defence
Committee played a crucial role in getting me
defence witnesses and reaching out to people all
over the country.
I would like to thank the teachers of Delhi
University who campaigned for my acquittal and
fought the fascist communal forces who were trying
to get my services terminated even before the trial
had begun. Many of these teachers had to fight their
own teachers unions in order to support and campaign
for me. The Delhi University Teachers Association
(DUTA) had a one day bandh to protest against the
attempt to assassinate me. My warm thanks to my
students who stood by me even in the first few days
after my arrest. Members of the non teaching staff
in my college have been very kind and shown their
support in many ways.
I would like to also thank members of the teaching
community in other universities who have supported
the campaign for my acquittal including Jawaharlal
Nehru University, All Bengal University Teachers
Union (ABUTA) and teachers in Jamia Milliya Islamia.
I would like to especially mention the students
who donated their blood when I was shot.
I have not forgotten my friends in Tihar jail who
have preserved their humanity in the brutalized
world of jails, torture and injustice. Many of
them put their own lives in danger to save me from
murderous attack, provided me with comfort and
solace. I promised to do something for the prisoners
and detainees when I was acquitted by the High Court.
A group of wonderful friends have helped me keep that
promise by forming ourselves into a registered
Society for the Protection of Detainees and Prisoners'
Rights (SPDPR).
I would not be acquitted if it had not been for
my lawyers, Mr Ram Jethmalani, Kamini Jaiswal and
N D Pancholi. I would not be alive had it not been
for the doctors and medical staff of AIIMS.
I would like to express my special thanks to my
friend and colleague Kumar Sanjay Singh, my lawyer
Nandita Haksar and her husband Sebastian Hongray
for their friendship, love and solidarity.
I have been lucky because my family members have
stood by me. My two children, Nusrat and Aatif have
kept up my morale in the days I was in solitary
confinement. The only way I can effectively protect
them is to dedicate my life to fighting for the cause
of truth, justice and democracy so that we can together
work towards building a better world.
Sayed Abdul Rahman Geelani
New Delhi August 4, 2005
______
[3]
The Times of India
October 02, 2005
Editorial
TEST CASE
A test case of whether the government takes human
rights violations in Jammu and Kashmir seriously
is how it follows up the CBI probe into the
Pathribal massacre.
Soon after the gunning down of 35 Sikh villagers
by terrorists in Chittisinghpora in March 2000,
security forces killed five people in Pathribal,
who it said were foreign mercenaries responsible
for the crime. The deceased, however, were
identified as locals, who were arrested and shot
in a staged encounter.
Widespread protests broke out in the Valley
following the killings, and the bodies were
exhumed to ascertain their real identities.
However, DNA samples were deliberately fudged.
To its credit the Mufti Mohammed Sayeed
government set up a commission to investigate the
killings, while the probe was taken up by the
CBI, whose investigation has named 14 persons,
including army officers, as responsible for the
encounters. Instead of prosecuting them, however,
some officials within the CBI itself want to
close the case now.
This would be disastrous, as it will be perceived
to be in line with earlier attempts to protect
those responsible for the encounter deaths, such
as fudging the DNA samples.
It would also accord with the general
governmental tendency to cover up misdemeanours
by appointing commissions, and conveniently
burying the results when it thinks the case is
forgotten.
Such an approach, however, will only be grist for
the militants' mill and must at all costs be
avoided, especially now that a peace constituency
is building in Kashmir.
Those named in the CBI probe must be prosecuted
to the fullest extent of the law, and action also
instituted against those who messed with the DNA
tests.
Given the wide publicity attracted by the
Pathribal killings that will send out the signal
that the state is on the mend, and the government
frowns on human rights violations as well as
attempts to cover them up.
Lastly, given the exertions of a certain
interested neighbour, human rights violations by
security forces in Jammu and Kashmir tend to be
highlighted while those in north-eastern states
such as Manipur pass under the radar.
This must not be permitted, as a sore that is
allowed to fester will worsen with time. A first
step in this direction would be amending or
annulling the draconian Armed Forces Special
Powers Act currently applicable in north-eastern
states.
_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/
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