A case for a public inquiry

December 13: Terror over Democracy, by Nirmalangshu Mukherji, with a "Foreword Essay"by Noam Chomsky, Promilla & Co. in association with Bibliophile South Asia, 2005

A RECENT book has raised many unasked and unanswered questions about the attack on India's Parliament House over three years ago.

At about 11.30 a.m. on 13 December, 2001, a white ambassador car car with a VIP red light and a `Home Ministry' sticker entered the premises of Parliament. While parking in a slot reserved for the Vice President's car and attempting to reverse, it hit the main car in the Vice President's cavalcade. In the commotion that ensued, five armed men got out of the car, started shooting indiscriminately and attempted to run towards the Parliament building. In the exchange of fire that ensued, which lasted about half an hour, five terrorists and 14 others including security forces and a were killed. Twith more injured. Within a day, a conspiracy was unearthed. Afzal, a surrendered militant, Shaukat Guru, his cousin who was a fruit vendor, and Geelani, a lecturer of Arabic in a Delhi college, were accused of conspiracy, and of assisting the five armed men who had stormed the premises of Parliament. Afsan Guru, Shaukat's wife, was charged with having knowledge of the conspiracy, since the conspirators had met at her house. Mobile phone numbers recovered from the bodies of the slain men were cited as the source that led the investigators to the conspirators. Afzal's alleged confession to a police officer especially, as also Shaukat's, were said to have implicated all the accused. The Special Court Judge Shri S.N. Dhingra convicted them all, and sentenced the three men to death and life imprisonment on various counts, including conspiracy to wage war, while Afsan Guru was gives 5 years' rigorous imprisonment and fine for "concealment of existence of design to wage war against India." On appeal, the Delhi High Court found no case made out against Geelani or against Afsan Guru and acquitted them. The state, Afzal and Shaukat have appealed against the High Court decision before the Supreme Court.

The courts had before them a series of allegations, a range of accused, and certain skeins of evidence, and the task before the courts was to pronounce on the probable guilt or possible innocence of the accused. A court, will not, and is not expected to, concern itself with aspects that are not directly relevant to the case of the accused before it. So, many questions will inevitably, and predictably, remain uninvestigated in the court's docket. The five dead men will not speak in court; for criminal cases are closed when the accused person dies. Did they belong to the Jaish-e-Mohammad and the Lashkar-e-Toiba as was quickly claimed? Were they Pakistanis? The Judge in the Designated Court averred that they were indeed Pakistanis, since no Indian had claimed them. But it holds true too that no one from Pakistan claimed them either. Union Mr. Advani, as Home Minister, had tendered as evidence in Parliament that "the dead men looked like Pakistanis" (cited at page 43). But, like Nandita Haksar and Kumar Sanjay Singh asked in an article in Seminar, how does a Pakistani look? "Does Mr. Advani look like a Pakistani? Musharraf like an Indian? We need Toba Tek Singh to decide." So, we don't really know if it is yet a premise, not a fact.

Was it an act of war? Or was it a terrorist act? Or perhaps a protest employing extremist methods? We do not know. But, on the presumption that it was an act of war, the troops were massed along the border, Indian and Pakistani soldiers stood eyeball-to-eyeball for nearly a year, with losses of life and livelihood mounting up through that time. Also, because "the clouds of war with our neighbour loomed large for a long period of time" and "the nation suffered not only an economic strain but even the trauma of an inhuman war", the High Court even enhanced the sentence of life imprisonment to death for the offence of waging war, conspiratorially.

Yet, as Nirmalangshu Mukherji's book December 13: Terror over Democracy reminds us, the fact is that there has never been a public inquiry into the attack on Parliament House. When we consider that the Members of Parliament had had a narrow escape, it is difficult to understand why no one, neither in the ruling coalition, nor in the opposition, thought there should be an immediate and deep-digging inquiry. Nirmalangshu suggests that it is the climate of fear that clouded judgment and rendered a rational response irrelevant. This determined the part that the media played in reporting, and suppressing, elements of the investigation.

OVER three years later, when Nirmalangshu revisits the attack and its aftermath, he finds that the media had a considerable influence on the prejudice that grew against the accused, which prematurely stilled many questions. May be the most inexplicable abdication by the media was witnessed on December 20, 2001, when, a day before Afzal allegedly made a confession to a senior police officer, ACP Rajbir Singh paraded him before the media. "By then, "as Nirmalangshu writes, "Afzal was projected by the police as the principal link between Jaish-e-Mohammad and Lashkar-e-Toiba commanders in Kashmir and the terrorist operation in Delhi. During the parade, Afzal admitted to his active participation in the conspiracy" (page 18). In the course of this interview where he implicated himself, he expressly exonerated Geelani. Rajbir Singh shouted at Afzal telling him that he was not to say anything about Geelani. Then, he turned to the media representatives before him. The principal correspondent of Aaj Tak who was present, and who said in his deposition nearly 10 months later: "Rajbir had requested not to telecast the line stated by the accused about Geelani. So when this interview was telecast on 20 December 5 p.m. that line was removed but when this was rebroadcasted (sic) in our programme 100 days after attack this line has not been removed and is in the interview". This deposition is in the file of the court, acting as a confession of the media's complicity with the police, until at least for 100 days after the attack, and, by then, the damage had been done. This parading of an accused, which vitiated every rule of law and legitimate practice, went unchallenged. The High Court found not a shred of evidence to link Geelani with any conspiracy. Yet the media connived at creating a monster of intrigue out of the man. There are shades of labelling, branding and stereotyping in this episode.

It is significant that Afzal was a "surrendered militant". A surrendered militant is one who is no longer a militant, but who has chosen to return. He is in the uneasy zone where he is suspect on both sides of the divide. Around 1990, Afzal was attracted to the JKLF (JKLF), as were thousands of other youngsters. He was in Pakistan for about three months, but returned without having received training because he was disillusioned by the internal rivalries he witnessed there. As his wife, Tabassum, wrote in The Kashmir Times of October 21, 2004 (reproduced as Annexure 18): "My husband wanted to return to normal life and with that intention he surrendered to the BSF [Border Security Force]. The BSF Commandant refused to give him his certificate till he had motivated two others. And Afzal motivated two other militants to surrender. He was given a certificate stating that he was a surrendered militant. You will not perhaps realise that it is very difficult to live as a surrendered militant in Kashmir but he decided to live with his family in Kashmir. In 1997 he started a small business of medicines and surgical instruments in Kashmir. The next year we were married. He was 28 years old and I was 18 years old." Then follows a tale of constant surveillance, suspicion, harassment and even extortion and torture by the security forces. "You will think that Afzal must be involved in some militant activities, that is why the security forces were torturing him to extract information", Tabassum writes. "But you must understand the situation in Kashmir; every man, woman and child has some information on the movement even if they are not involved.... Afzal wanted to live quietly with his family but the Special Task Force (STF) would not allow him." The STF has acquired such notoriety that "when Mufti Sayed became the Chief Minister he promised in his election manifesto to disband the entire force," she recounts. And, in Afzal's s.313 statement made to the Magistrate, he says (reproduced at Annexure 5): "Tariq (one of the absconding accused, allegedly a Pakistani) had met me in Palhalan STF camp where I was in custody of STF. Tariq met me later on in Srinagar and told me he was basically working for STF. I also told him that I was also working for STF. Mohammad who was killed in attack on Parliament was alongside Tariq. Tariq told me that he was from Keran sector of Kashmir and he told me that I should take Mohammad to Delhi as Mohammad has to go out of the country after some time from Delhi." Throughout, Afzal claimed that he knew Mohammad, but had no knowledge of the plan to attack Parliament House.

What is the truth? If Tariq was, in fact, spotted in the STF camp, how can that he allowed to go uninvestigated? If Afzal had to report regularly to the STF, how could they not have known anything about the conspiracy? Would cross-border terrorists repose trust in someone who was in regular contact with the STF?

The vulnerability of a surrendered militant is undeniable. Where there is militancy, there are bound to be surrendered militants. Surrendered ULFA, surrendered PWG, surrendered JKLF ... .. their numbers must have grown over the years.

The seriousness of the accusation against Afzal, the reliance on a confession he is said to have made before a police officer, and the paraded confession before the press seemignorance about s blind to the relationship between the surrendered militant and the security forces. If a person under the watchful eye of the STF could be part of a conspiracy to wage war against the state, it would surely warrant a public inquiry. For this is not about the guilt or innocence of one man, but about how a system works and what it means, to democracy and the sovereignty and security of the state.

In the Parliament House attack case, the armed men who attacked Parliament were shot dead. The instigators are allegedly in Pakistan, and so far as is known no serious efforts have been made to have them extradited and tried. Of the four persons charged, two have been acquitted by the High Court for want of evidence. One is a surrendered militant about whom we need to know much more beyond the immediate case, for that may to lead us to further courses of investigation. And the fourth is connected only through the acquitted man and the surrendered militant. We need to be certain that there is no scapegoating, and it would be unfair to ask the court to determine this. The court cannot stray beyond the bounds of the case before it, and we must respect that limitation.

Each of these is individually important to investigate. These parts add up to more than one whole. A public inquiry, which this book convincingly argues as being an imperative, needs to be instituted, before any further damage is done by the lack of knowledge of what happened on that morning of December 13th For, as Chomsky says in his foreword essay: "[T]he people of India should respond constructively to the call for a parliamentary inquiry into what actually happened and its roots. Indian democracy is one of the triumphs of the twentieth century, but a fragile one. The plant has to be protected and nurtured, or it can all too easily wither, with consequences that are sure to be grim."