Lessons in a verdict

The Supreme Court's judgment in the Parliament House attack case reveals that efficient investigation within the existing legal framework, and not the use of a harsh law like the Prevention of Terrorism Act, is the best way to counter terrorism.

V. VENKATESAN in New Delhi

THE judicial course of the case relating to the attack on Parliament House in New Delhi on December 13, 2001, has come to an end with the Supreme Court delivering its verdict on August 4. The Bench, comprising Justices P. Venkatarama Reddi and P.P. Naolekar, confirmed the death sentence imposed on Mohd. Afzal, the main accused, who is a surrendered militant in Jammu and Kashmir. It acquitted Shaukat, Afzal's cousin and co-accused, of the charges of conspiracy, but held him guilty under Section 123 of the Indian Penal Code (IPC) for concealing knowledge of the conspiracy even though he did not face this charge during the trial. It also confirmed the Delhi High Court's acquittal of S.A.R. Gilani, an Arabic teacher in a Delhi college, and Shaukat's wife Afsan Guru.

The Special Cell of the Delhi Police invoked the Prevention of Terrorism Ordinance (POTO) against the accused on December 19, 2001. The Supreme Court dismissed the argument that the police delayed invoking POTO in order to circumvent the requirements of Sections 45 and 52 of POTO. Section 45 required the police to obtain orders from a competent authority to intercept communications, which could be used as evidence against the accused, while Section 52 listed procedural safeguards to be followed when a person was arrested under POTO.

In the absence of POTO, the police obtained permission from the Joint Director, Intelligence Bureau, as per the requirements of the Indian Telegraph Act, to monitor and tap the mobile phones of Afzal, Shaukat and Gilani from December 14, 2001. The interception of their telephonic conversation led to the arrest of the accused. Thus, the key arrests in the case were made under the normal law of the land, rather than under POTO, which was replaced by the Prevention of Terrorism Act (POTA) in March 2002.

The prosecution claimed that on December 19, 2001, the provisions of POTO were invoked after due consideration of the material collected, and upon getting definite information about the involvement of the Jaish-e-Mohammad, a banned terrorist organisation. Yet, at no stage during the investigation, trial or the hearing of the appeals by the High Court and the Supreme Court did the prosecution throw light on the links between the JeM and the accused. No wonder that all the three courts - the trial court, the High Court and the Supreme Court - chose to be silent on the larger conspiracy behind the attack.

The Committee for Inquiry, comprising eminent intellectuals from all walks of life, pointed out that Afzal, as a surrendered militant, was under the surveillance of the Special Task Force of Jammu and Kashmir. How could such a person mastermind and execute such a complex conspiracy? it asked. But the basic issue was the inability of the police to prove the involvement of the JeM.

Afzal's confession to the Deputy Commissioner of Police was recorded under Section 32(1) of POTA, which makes it admissible as evidence in the trial. The Bench held that as the prosecution had not complied with the procedural safeguards under POTA, Afzal's confession did not appear true and voluntary, and was, therefore, unreliable.

The Supreme Court, however, found Afzal guilty on the basis of circumstantial evidence. Afzal knew who the deceased terrorists were and identified their bodies; he had made frequent contact with Mohammed, one of the terrorists, over telephone. The discovery of the hideouts of the terrorists, the recovery of various incriminating articles, proof of purchase of materials to make explosives, and the recovery of the laptop used by the terrorists from Afzal were all cited as providing clear circumstantial evidence against him.

The Bench concluded that the circumstances established beyond reasonable doubt that Afzal was a party to the conspiracy and had played an active part in the various acts done in furtherance of the conspiracy. But the Bench did not find any circumstantial evidence to establish his membership of a terrorist gang or organisation. Such membership was a factor that was used to invoke the provisions of POTO against the accused.

More important, the Supreme Court confirmed the death penalty under ordinary laws and not under POTA. The Bench found Afzal guilty under only Section 3(3) of POTA, for conspiring to commit the terrorist act. The maximum punishment for this under POTA is life imprisonment, and the Bench awarded that sentence to him. However, it disagreed with defence counsel that the provisions of the IPC could not be invoked against Afzal just because he was found guilty under POTA. In other words, Afzal was guilty of conspiring to commit the terrorist act as well as murder. Therefore, the Bench said he was liable to be punished under Section 120B read with Section 302 of the IPC.

The Bench agreed with the High Court that the evidence on record did not bring out a high level of consciousness qua S.R. Gilani in the conspiracy. Gilani was known to Shaukat and Afzal. Shaukat and Gilani lived in the same locality in Delhi. Gilani played a part at the marriage ceremony of Shaukat and Afsan Guru in 2000. They hail from the same district and were students of Delhi University. The telephonic calls between them, the Bench said, were not a definite pointer of Gilani's involvement in the conspiracy.

However, while referring to the call from Gilani's mobile phone to Shaukat's mobile phone on the intervening night of December 12-13, 2001, the Bench noted that no specific question was put to Gilani on this. The Bench acknowledged that Gilani's defence was that his brother called Shaukat to wish him on that night, which happened to be a festival (shab-e-qadr).

The Bench added that undue importance ought not to be attached to this, having regard to the state of other circumstantial evidence on record. The Bench referred to the telephonic conversation between Gilani and his brother Shah Faizal on December 14, 2001, which was intercepted and recorded on tape. The High Court discarded this piece of evidence on the grounds of inaudibility and as there was room for doubt in view of the discrepant versions of the conversation.

The Supreme Court Bench agreed with this view of the High Court, but added a caveat, which to many seemed unreasonable and even illogical. It said that Gilani rejoiced and laughed heartily when his brother raised the "Delhi event" in the conversation, which it felt was disturbing. The Bench expressed disbelief over his claim that the conversation was in the context of a domestic quarrel. From this, the Bench felt a suspicion could be raised about his knowledge of the incident and his tacit approval of it, particularly because he had lied about his contacts with Afzal and Shaukat. At the same time, it said suspicion, however strong, could not take the place of legal proof, and the court could not condemn him in the absence of sufficient evidence pointing unmistakably to his guilt.

The Bench's move to express this suspicion in the judgment dismayed many observers. Former Attorney-General Soli Sorabjee, in a letter to a newspaper, felt the court had imposed a "civil death sentence" on him. The court perhaps unwittingly harmed Gilani's ability to lead a normal life and pursue his teaching career, after recovering from the trauma of prosecution and conviction by the trial court as a terrorist-conspirator.

In retrospect, Gilani's predicament could be attributed to the abuse of POTA against him and the other accused by the prosecution during the trial. In Afzal's case, for example, the Supreme Court did not approve of his conviction and sentence of death by the trial court under Section 3(2) of POTA, as that section could have been invoked only against actual perpetrators of the terrorist act, whereas Afzal was only a conspirator.

The United Progressive Alliance government at the Centre has repealed POTA with Parliament's approval. The Bharatiya Janata Party, which introduced POTA when it was in government as the major constituent of the National Democratic Alliance, expressed the fear that POTA's repeal would weaken the efforts to counter terrorism. The outcome of the Parliament House attack case, on the contrary, reveals that the answer to terrorism cannot be found in POTA-like special laws. The lesson for the state is not to seek a harsh law, but to make policing and investigation more efficient than what it is today within the existing legal framework.