(I)

 

 

Since the secret hanging and burial of Afzal Guru in Tihar jail, many writers have justly condemned the manner in which the government conducted the execution. However, once the state decides to hang a person, the issue of whether the killing took place in a ‘transparent’ and ‘dignified’ manner is a largely aesthetic one. The process that initiated the killing continues to be of primary epistemic concern.

No doubt the manner and timing of the hanging clearly indicates that the government had ulterior political motives in mind. Yet, these motives are better understood in terms of the political considerations that guided the case of Afzal Guru from his arrest to the rejection of his mercy petition. His hanging within a few days of the presidential rejection was just the inevitable culmination of this political process.

For death sentences, the decision-making consists of two parts. The formal judicial part of the process ends with the award of capital punishment by the Supreme Court of India; the process then extends to the President of India under article 72(1)(C) of the Constitution of India. I will suggest that sinister political considerations played a decisive role in the final declaration of death sentence for Afzal Guru. It was a political necessity to kill Afzal, hence the death sentence.

Some authors, including myself, have darkly hinted at this possibility before. It seems to me now that the thought can be pursued with more detail. A starting point could be the two brief interviews given by Afzal’s lawyer at the Supreme Court, senior counsel Sushil Kumar. As a defence lawyer closely familiar with the case, Shri Kumar holds that the judgment is wholly unacceptable. It is important to see why.

The basic judicial issue is this. On the day of Afzal’s hanging itself, Shri Kumar observed that terrorism cases are typically decided on the basis of confessions because the origin, planning, and agency of terrorist actions are typically shrouded in mystery. Circumstantial evidence is then used to corroborate the confession to strengthen the case. In turn, a valid confession corroborates the circumstantial evidence independently obtained and produced before the judicial system to rule out the possibility that the material produced before the courts had been manipulated. In effect, confessions and circumstantial evidence corroborate each other.

Kumar observes that, in the case of Afzal Guru, his confession was set aside by the Supreme Court. So the entire weight of the judicial pronouncement depended on the quality of circumstantial evidence where the possibility of (large-scale) manipulation remained open. According to Kumar, this crucial issue could not be properly examined at the appeals due to the unfair character of the trial at the sessions court. Shri Kumar holds that, on the basis of the available records, Afzal should have been acquitted.

Notice the crucial move from a logical possibility to a factual realisability in Shri Kumar’s argument. As I hear him, he is not just raising the theoretical possibility that the uncorroborated circumstantial evidence could have been manipulated. He is suggesting that Afzal should have been acquitted, implying thereby that the records did raise the grim possibility that the evidence had in fact been manipulated. To explore the issue, I am compelled, yet again, to go through some of the salient features of the case.

Afzal’s Confession

Shri Kumar’s argument begins with the fact that the Supreme Court rejected Afzal’s confession. The Court’s manner of rejection of the confession is intriguing. These confessions were obtained within the jurisdiction of the Special Cell of Delhi police itself since the confessions were obtained under POTA. Afzal’s confession was actually televised from the police quarters on 20^th of December 2001, a week after the attack on the parliament, with ACP Rajbir Singh, the investigating officer, directing the filming from just outside the frame.

In the Supreme Court, the defence arguments were made by legal luminaries Ram Jethmalani (Geelani), Shanti Bhusan (Shaukat and Afsan) and Sushil Kumar (Afzal Guru). The defence argued that the confessions were forced, that is, extracted by torture. In fact, it is on record that the accused complained that they were made to sign on blank papers with the police filling in the details. Having heard the arguments, the Court found them “plausible and persuasive”. Yet, the Court decided curiously not to enter into these “probabilities”. Nevertheless, it did set the confessions aside because the police had failed to observe even the minimal safeguards granted in the otherwise draconian POTA: securing a lawyer for the accused, informing relatives, etc. Thus, although the action of the Supreme Court did put a mild mark of illegality on the Delhi police, it stopped short of directly indicting the police for forced extraction of crucial evidence.

The Court agreed that there was no valid reason why the confessions were not obtained before a magistrate under the regular section 164 of the Criminal Code (Supreme Court Judgment, SCJ, p.148). During the hearing, the Court observed that confessions under POTA could be needed only in those exceptional circumstances, such as operations in remote areas, in which a judicial magistrate may not be easily available. The case under discussion, in contrast, was handled in New Delhi. Actually, as I have argued elsewhere, it can be convincingly inferred from the fact of violation of safeguards itself that the confessions were involuntarily extracted. Even then the Supreme Court refused to deliberate if the confessions were forced. To be sure, there was no legal compulsion to do so once some basis had been found to set the confessions aside as admissible evidence; period. But there is a lingering unease as to why a stronger statement against the confessions was not made.

Theoretically, it is plausible to view the powerful defence arguments as raising a dilemma. On the one hand, it would have been rather difficult to rely on the confessions any further without convincing refutation of arguments presented by the defence—an arduous task. On the other, if the confessions were rejected on the basis of defence arguments, then it would have seriously injured the rest of the prosecution’s case, as we will see. Setting the confessions aside on technical grounds thus offered a way out of the dilemma.

Indeed, it is seriously questionable if this crucial piece of evidence should have been set aside on technical grounds alone. Both the trial court and the High Court had ignored these violations. Relying on the confessions, the High Court had awarded death sentence to Afzal since “the nation suffered not only an economic strain but even the trauma of an imminent war” (High Court Judgment, HCJ, para 448). As detailed by both the lower courts, the confessions were the only source from which the nation learned the details of the conspiracy as it was planned by terrorist organisations in Kashmir and elsewhere. It does seem counter-intuitive to set this critical evidence aside on mere technicalities. Just what was the problem? As noted, the Court did not have to answer this query. Nevertheless, one possible answer could be as follows.

When someone is arrested on criminal charges, the statement of the accused is recorded by the police to begin investigation. These “disclosure” statements thus lead the police to the evidence. Disclosure statements by themselves are not admissible as evidence; the entire chain from disclosures leading to circumstantial evidence is. The trouble with the confessions in the parliament attack case was that they matched the disclosure statements of the accused almost verbatim. Forced extraction of the confessions would have raised the possibility that the disclosures were similarly forced. That would have been problematic.

Having argued that the confessions were forced, senior counsel Shanti Bhusan asked in the Supreme Court that, if the disclosures were genuine, then why would the police take recourse to forced confession with almost identical content? If the disclosures were also forced, then it would have raised the grim possibility that the circumstantial evidence that the disclosures had supposedly ‘led’ to was comprehensively manipulated, as Sushil Kumar observed. The chain of distrust would have led from the confessions to the circumstantial evidence via the disclosures. In plain words, if the disclosures were illegal, there would have been no basis for the conclusion that the police was ‘led’ to the circumstances. If the police failed to explain how they reached the circumstances, a natural inference would be that the circumstances were planted. As it so happened, the Supreme Court did not find it necessary to pursue this line of thinking from the rejection of confessions to doubts about circumstantial evidence furnished by the police.

Circumstantial Evidence

The (quality of) circumstantial evidence produced by the police lends much support to the line of thinking just outlined. Consider Afzal’s alleged identification of the attackers in the morgue. There was indeed an identification memo submitted by the police with Afzal’s signature on it. It is on record that this and some other crucial pieces of evidence were admitted by Afzal’s court-appointed lawyer, Ms. Seema Gulati, before the trial opened. As a result, this evidence was relied upon by all the courts without anyone examining it. It is also on record that Afzal claimed that the police forced him to sign on the identification memo; he had no option since he had been informed that his brother was in illegal arrest in Kashmir. In any case, all that this evidence, if valid, says is that Afzal knew some of those attackers. I return to this point.

If Afzal was to be found guilty as charged for waging a war etc., more circumstantial evidence was needed to link him with elements of the crime itself. Broadly, the evidence fell into three categories:

(1) Afzal’s allegedly active participation in the conspiracy in terms of arranging hideouts, attending group meetings, and the like.

(2) Alleged recovery of car, motorcycles, chemicals and other equipment with prosecution witnesses identifying Afzal as one of the buyers.

(3) Alleged recovery of incriminating material by the police such as a laptop, video equipment, and a mobile handset from Afzal. The recovery of the mobile allegedly established the ‘link’ between Afzal and the attackers.

Insofar as this range of evidence is concerned, the following points may be noted.

(A) Afzal’s face was widely flashed on television before Afzal was ‘taken’ to the places pertaining to (1) and (2) for the public witnesses to identify him. The High Court commented on this aspect with disapproval (HCJ, para 139); so it was on record.

(B) For the police recoveries, no independent witnesses certified them. As noted, this included the mobile handset allegedly found with Afzal.

(C) Shopkeepers as public witnesses were harnessed from markets such as Gaffar market and Naiwalan in Karol Bagh, Gali Teliyan in Tilak market, etc. The trial judge noted in his judgment (para 109) that one of the shopkeepers stated that “Gaffar Market is a grey market, no bills etc. were used, only rough notes are prepared, which are destroyed every evening”. The High Court observed that the shopkeeper selling chemicals “had no documentary proof showing sale to accused Mohd. Afzal nor he had issued any receipt for the money received” (para 62). Similar remarks apply to the murky room-tenancy business in which most of the alleged hideouts were located. The Supreme Court noted that one of the landlords gave false testimony in court obviously under police pressure. These people operate their businesses under close watch and arrangement with the police anyway. How difficult would it be for the police to plant each of the pieces of evidence at issue?

(D) The prosecution produced 80 witnesses. Out of these, just 22 were asked any question at all by Afzal’s lawyer, Shri Neeraj Bansal; in most cases, the interventions were at best cursory and hopelessly inadequate to dig out possible fabrication. Thus, Afzal was compelled to cross-examine witnesses himself in this extremely complex criminal case. The eminent senior counsel Indira Jaising stated, “This he had to do without being provided with copies of the depositions that would have enabled him to point out the inconsistencies. Besides, cross-examination by an accused facing a death penalty is no substitute for cross-examination by a legally trained mind. … A greater mockery of due process of law cannot be imagined.” It is important to note that Jaising made these comments at least a year after the judgment of the Supreme Court.

(E) Afzal’s defence produced no witnesses at all, not even members of his family. Hence, his whereabouts during the alleged period of conspiracy and his alleged meetings with the attackers were not challenged with counter-evidence. In his statement 313 subsequently, Afzal stated three crucial facts: (i) he had rented one small apartment in Delhi to bring his family from Kashmir, (ii) he had left for Kashmir on 12 December, 2001, to bring his family after celebrating Id, (iii) J&K police arrested him alone from Srinagar bus stand. Afzal’s lawyer never met him. So, no attempt was made to verify Afzal’s statement through independent witnesses.

This is just the tip of the iceberg. Brazen violations of law escalate rapidly as we look into more details of the case.

 

 

II

Reliance on Special Cell

All these facts were before the Supreme Court. Since Afzal had virtually no defence, the police had a free hand in presenting tarnished evidence in the court. Importantly, the confessions were no longer available to corroborate this evidence. The credibility of the evidence thus squarely depended on what stand the Court adopted with regard to the investigating agency, namely, the Delhi police. If there were independent reasons to question its credibility in this case, the prospect of massive manipulation would have loomed large.

It was already on record that, in this case itself, this agency had committed a variety of illegalities such as false arrest of people, forcing people to sign on blank papers (HCJ, para 21), tampering with phone records (HCJ, para 340), failing to record independent witnesses, etc. If, on top of this, the Court agreed that the confessions were forced, the credibility of the police and, thus, of the disclosures would have completely collapsed. As a matter of fact, the Supreme Court did not state that the confessions were forced, so the grave consequences never materialised.

Suppose, for the sake of argument, that the confessions were forced with the consequences outlined. As Shri Shanti Bhusan submitted to the High Court, “the investigating officials were prepared to forge and fabricate documents against the appellants”. It follows that “the only evidence on which reliance could still be placed by the Court would be evidence totally independent of these investigating officers.” In that scenario, it would have been a stupendous task to rely on the circumstantial evidence anymore, except for one piece.

There was evidence that Afzal indeed accompanied one of the attackers, identified as Mohammad, to purchase the car that was used in the attack; Afzal had signed the receipt memo. In his statement 313, Afzal had admitted this fact as well as the fact of his prior acquaintance with Mohammad; so this piece of evidence was independent of the investigating officers.

Now, the Supreme Court awarded 10 years in prison to Shaukat because, according to the Court, Shaukat concealed knowledge of conspiracy from the law. Shaukat was released in 2011. Under the rather tenuous presumption that knowledge of car-purchase indicates some knowledge of conspiracy which Afzal failed to report to the police, his case would have matched Shaukat’s. Afzal would have been a free man by now.

The trial court and the High Court did not face this problem since they found the confessions to be valid and, hence, corroborating the circumstantial evidence. Even without the corroborative security of the confessions in hand, the Supreme Court basically followed the conclusions reached at the lower courts that the witnesses were not broken by the defence and that, other things being equal (that is, if the defence had failed to produce counter-evidence), the statements of the police stand.

Both the trial court and the High Court relied on the judgment 2000 (vii) A.D. (SC) 613, Government of NCT of Delhi Vs. Sunil, where it was held:

(W)hen a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery.” (Emphasis added).

Similarly, the Supreme Court cited the case of Sanjay v. NCT [(2001) 3 SCC 190]: “the fact that no independent witness was associated with recoveries is not a ground and that the Investigation Officers evidence need not always be disbelieved”. The point is, if the confessions were to be set aside for being forced, and since the contents of the confessions matched the disclosures, there would have been “good reason to suspect the truthfulness of such records” on the basis of the Court’s own reasoning. Then the Court could no longer have relied “on the strength of the statement by the accused” (read, “disclosures”). In other words, the prosecution’s case would have collapsed.

Afzal Must Die

To emphasise, if the Court relied only on evidence independent of the police, even a punishment for life imprisonment would not have been justified on any of the counts. In that hypothetical scenario, the Court would have been compelled to either award a few years’ of imprisonment or to exonerate Afzal altogether, as suggested above. It is not unusual for the courts to turn the verdicts of lower courts upside down. Most recently in Bihar, in a case of massacre involving the Ranavir Sena, the lower court awarded death sentences to 3 people and life imprisonment to 8; the High Court acquitted all of them.

However, in the parliament attack case, the judicial process would not really have ended with the enlightened sentencing just suggested. The due process of law in that case would have extended to indict the Special Cell of Delhi police. As Senior Counsel Shanti Bhusan argued in his submission to the High Court, “the investigating officials have clearly committed offences punishable with imprisonment for life under Section 194 and 195 of I.P.C.” “When such a serious offence has been committed by the investigating officials,” Shanti Bhusan continued, “it is only by having them punished that such fabrication of documents and the giving of perjured evidence can be stopped by the Court.”

In practice, unfortunately, Shanti Bhusan’s just suggestion has been routinely ignored. As a counter-terrorist unit specially designed by the union, the Special Cell forms close relationships with the judiciary, the home ministry and such agencies of the state as the Intelligence Bureau and the Research and Analysis Wing. Even though the notorious character of the Special Cell in falsely framing people had been repeatedly documented leading to summary acquittals at the trial stage itself, no judicial action had ever been initiated against this agency.

However, the parliament attack case differed substantially from other ‘routine’ terrorism cases. The possible scale of fabrication was such that, if acknowledged by the Court, the Special Cell simply could not be left unpunished. The Court of course never acknowledged the grim possibility. So the effect of the Court’s actions was actually opposite of what Shanti Bhusan suggested.

To recall, first, the Court set the confessions aside on a technical point without questioning its content; second, in turn, it relied on the chain of evidence produced by the police on the basis of the disclosures; and third, it took a narrow view on the issue of fair trial even though the ‘examination’ of the evidence in the trial court was a “mockery of due process of law” according to eminent legal opinion. While securing a death sentence for Afzal, the framework effectively protected the Special Cell from the charge of massive manipulation. In fact, the Court went beyond Afzal Guru to award 10 years RI to Shaukat on a new charge; also, it cast a “serious suspicion at least” about Geelani’s “knowledge of the incident and his tacit approval of it” with arguments that border on absurdity. As an additional effect then the Special Cell was exonerated from the charge of framing Geelani and Shaukat.

In fact, the framework enforced another serious effect. The parliament attack case was not just a case of massive crime, it had far-reaching political consequences including diplomatic and military offensive against a neighbour, the on-going ‘war on terror’, sensitivities of communities, credibility of the government, democratic functioning of the state, and the like. What the framework did was to transfer the final burden of the case to the rest of the decision-making system to reflect on these considerations if it so desired. This transfer could not take place unless capital punishment is awarded to attract Article 72.

As the text of its judgment attempts to show, the Supreme Court convinced itself that death penalty was warranted in this case on strictly legal considerations that it found viable. Yet the effect was that it did open the way for a full scrutiny of the entire case in all its aspects including whether the Supreme Court was justified in taking the legal view it did. The burden thus shifted to the presidential part of the system. So, in principle, Afzal still had a chance to be free.

Yet the hope, entertained by Afzal, his family and many well-wishers across the world, lacked a grasp of reality. Even though Article 72 makes all options available to the presidential system in principle, as a matter of practice the hands of the system are tied by the very award of death sentence. The system really cannot acquit a person or give him a significantly milder sentence without causing great injury to the credibility of the judicial process. So the only practical options are either to uphold the sentence or to commute it to life imprisonment.

In any case, even if it was theoretically possible for the system to acquit Afzal, it was plainly inconceivable under the circumstances. Not only would the decision have seriously injured the judicial system, it would have dramatically exposed the Special Cell as noted. The last step was not feasible because, according to the senior counsel Shanti Bhusan, a “conspiracy” was “created” to “frame people” to “push” the country to the “brink of a nuclear war” (Tehelka, 16 October, 2004, p.21). This conspiracy, if there was one, could not have been “created” without direct involvement of a host of top functionaries of the government.

For example, it is incredible that a junior ACP of Delhi Police, Rajbir Singh, could have organized Afzal’s ‘confession’ on national television on 20^th of December 2001 without clearance from the home ministry. The government had already virtually declared war on Pakistan based on Afzal’s confession even though, according to Shanti Bhusan, the police “failed to crack the case” as “all the five militants had died in the attack”. The government needed the confession. The “conspiracy”, therefore, must have been planned, if at all, at the highest level of governance. No government can dare to upset such a large chunk of the system without creating a minefield for itself. Particular governments come and go, but the system of governance, the state, remains in place with its personnel. Watching.

This perspective obtained even for the more plausible scenario of commuting Afzal’s sentence to life imprisonment. A commuted sentence would have meant Afzal’s almost imminent release. Having already spent over a decade in prison, and with his impeccable record as a scholar-prisoner, Afzal would have been due for release in a few years.

According to the Supreme Court, Afzal Guru was the only person alive who had direct knowledge of the conspiracy to attack the parliament. As argued above, the Supreme Court erred massively in reaching this conclusion about Afzal’s involvement in the attack. But it is more than likely that Afzal was witness to at least a significant part of the “conspiracy” created by the then government with the Special Cell at the center. As his brief interventions in his statement 313 darkly suggest, Afzal had interesting things to say on this shadowy topic.

In any case then Afzal Guru was destined to die. The only impediment to his hanging was the uncertain situation in Kashmir. Thus, as Kashmir “normalized” and a severe winter tied the residents down to their homes, the politics of the parliament attack case found its most opportune moment. Afzal Guru was hanged on 9^th February 2013 for reasons of state.

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