A case for inquiry

Nandita Haksar critically evaluates the trial courts judgment in the December 2001 Parliament attack case.

NANDITA HAKSAR, a lawyer committed to the protection of human rights and exposure of the states wrongs, has rendered high service by writing this book. Two grisly episodes await full exposure. The Bharatiya Janata Party (BJP) regime tried to profit by their timely occurrence. The Chattisinghpura massacre in Kashmir was attributed to the militants. The victims, Sikhs mostly, rejected that story. A Jalandhar-based human rights body exposed its falsity. It was the work of surrendered militants performed, significantly, on the eve of President Bill Clintons visit to India. The Americans did not buy the story either.

The other episode is the attack on the Parliament building on December 13, 2001. In its wake followed massive deployment of troops on the Line of Control and the border with Pakistan. The exercise was called off months later after huge amounts had been spent and the armour had suffered. A trial followed in which one of the accused, S.A.R. Geelani, a respected teacher at Delhi University, was acquitted. The author was one of his defence counsel. Another accused, Mohammed Afzal Guru, was sentenced to death. The sentence was upheld by the Supreme Court in a judgment couched in language so intemperate as to rob it of the quality of a judicial pronouncement.

The book comprises the authors letters to the Prime Minister and many others of which the one to her former law teacher, Professor Upendra Baxi, is the most instructive. She tears the trial courts 296-page judgment to pieces. Judge S.N. Dhingras pronouncement was widely criticised. The state alleged that the crime was inspired by the Lashkar-e-Taiba and Jaish-e-Mohammed supported by the Inter-Services Intelligence (ISI). However, Dhingra noted: No evidence has come on record that any of these three accused persons belonged to or professed to belong to terrorist organisations Jaish-e-Mohammed or Laskar-e-Toiba. I therefore, consider that Section 20 of the POTA [Prevention of Terrorist Activities Act] is not made out against them.

Obscenely enough, the execution of Afzal Guru now figures high on the agenda of the BJP. His disclosures could be damning.

But the book is not about the trial as such. It is about the mindset of many in our country who readily assume guilt once the state proclaims a man to be a traitor to the country. The electronic media are particularly culpable in whipping up such emotions. Mohammad Afzal was produced before the national media and forced to incriminate himself. However, he made it a point to tell the media that Geelani was not involved in the conspiracy. Two mediapersons who were present at the conference appeared as defence witnesses for Geelani, Manoj Pande of The Times of India and Shams Tahir Khan of Aaj Tak. Shams told the trial court that when Afzal mentioned Geelani, the Investigating Officer, ACP Rajbir Singh, shouted at him and told him that he had been told not to mention Geelani. The police officer requested the media not to report or broadcast that part of Afzals statement exonerating Geelani. The police officers hold on Afzal in full view of TV cameras reveals a relationship of Afzals submission to the police. In an open letter to Law Minister Jana Krishnamurthi, Amnesty International, on the eve of the trial on July 8, 2002, expressed concern that media coverage of the arrests and concerning the person of Abdul Rehman Geelani during the pre-trial period has been extremely prejudicial to his case and that the Government of India has not taken any steps to halt this.

Judges who stray from the record and make assertions of a political nature do not help the cause of justice. If they are so worked up themselves, how detached could their judicial assessments be? Sessions Judge S.N. Dhingra said: Lt. Gen. (retd.) Hamid Gul, who was the Director General of the ISI in the late 1980s, used to claim that keeping the Indian security forces bleeding with the help of the jehadis was equivalent to the Pakistan Army having an extra division at no cost to the Pakistani exchequer. Gen. Pervez Musharraf, Pakistans present military director, and other officers of the Pakistani military intelligence establishment share this belief. How did he know that? He even took judicial cognisance of the U.S. war on terror.

In a case like this, the people are entitled to know the whole truth and that, as two Judges pointed out, can emerge only in an inquiry, not in a trial. A number of persons were falsely charged with grave offences pursuant allegedly to a conspiracy to create mayhem in Bhiwandi in May 1970. They might well have been convicted. But Justice D.P. Madon as Commission of Inquiry inter alia on the causes of the riots insisted that the evidence be led before him. It was exposed before him as a police frame-up. The case was withdrawn. Justice Y.V. Chandrachud made similar observations as Commission of Inquiry after the Deen Dayal Upadhyaya case had ended. A criminal trial is not a probe or inquiry into the truth about the occurrence. It is about the culpability or innocence of persons charged with specific offences. A commission of inquiry can probe into the whole truth. No such commission will be appointed. The time is come for lawyers and retired judges of eminence to analyse the entire record in the case plus press reports and report their findings to the nation.