The Special POTA Court's judgment sentencing to death three of the four accused in the Parliament House attack case raises concerns about the strategies adopted to tackle terrorist attacks.
WHEN the Special POTA Court Judge S.N. Dhingra pronounced the death sentence against three of the four accused in the case relating to the attack on Parliament House on December 13, 2001, a section of lawyers present inside the courtroom shouted, "kill them, they are terrorists." Outside the court, members of the Shiv Sena burst crackers. In a way, it was a fitting summation to `nationalist' emotions that were associated with the first case to be tried and taken to the conviction stage under the Prevention of Terrorism Act.
On December 18, 2002 the Special POTA Court awarded the death sentence to S.A.R. Geelani, lecturer at the Zakir Hussain College in Delhi, Shaukat Hussain Guru, former student of the Delhi University, and Mohammed Afsal, a militant who laid down arms in 1995, for offences under Section 3(2) of POTA (indulging in terrorist acts leading to deaths) and Section 302 of the Indian Penal Code (murder). The three were convicted for conspiring to commit terrorism and acts of treason.
Dismissing the plea of leniency made on behalf of Afsan Guru, wife of Shaukat Hussain Guru, who was convicted on the lesser charge of concealing knowledge of the conspiracy, the court sentenced her to five years' rigorous imprisonment and a fine of Rs.10,000. Judge Dhingra said that he felt that "she deserved no leniency". Making no reference to the fact that she was pregnant at the time of the conspiracy, the Judge said that though it was beyond doubt "that she was having a difficult choice of going against her husband, she had to give priority to the nation and society".
THE case is important for several reasons. The government has proved that it dealt strictly with "terrorists who struck at the heart of Indian democracy". More important, the case has shown how the government has chosen to deal with acts of terror under the assumption that all people arrested by the police are guilty. Unfortunately, as the trial progressed, the question of dealing with terrorism at the expense of a crackdown on civil liberties was relegated to the background.
The emotions generated by the attack and the case took an ugly turn when the motives of the counsel appearing for the accused were questioned and they were accused of being `anti-national'. In fact, an effigy of the lawyer representing the accused was burnt. Sima Gulati, counsel for Geelani, said: "It is not that we want to protect terrorists. If found guilty, the accused should be given the severest of punishment. But one cannot bypass the rule of law and facts when fighting against terrorism." Commenting on the judgement, Sima Gulati said: "At several places the court relied on conjectures. It was being hoped that matters would be viewed on the basis of evidence with the presumption of innocence rather than the opposite." Nitya Ramakrishnan, counsel for Afsan Guru, said that the court "added to the fund of the prosecution material". After hearing the judgment, Geelani said: "By convicting innocents, you cannot suppress emotions. Peace comes with justice. Without justice there will be no democracy; it is Indian democracy that is under threat."
Among the convicted persons, the instance of Geelani might be a pointer to what can happen to ordinary people caught in the vortex of a state battling terrorism. The charge-sheet filed by the police against him shows that no arms, ammunition or any incriminating evidence was found during the search of Geelani's house. The only piece of evidence that the prosecution had against Geelani was an intercepted telephonic conversation. (Geelani received the call on his cellphone on December 14, 2001.) The prosecution argued that in the course of the conversation, made in the Kashmiri language, between Geelani and his half brother, he supported the attack on Parliament House. The defence, which got the conversation transcribed from film-maker Sidharth Kak and trade union leader Sampat Prakash, claimed that the prosecution got the context of the conversation wrong. It said Geelani was discussing a marital row with his younger brother and not the attack. During arguments, the defence brought it to the attention of the court that the police had hired a fruit vendor educated only up to Standard VI to translate the conversation. Pointing out that the fruit vendor had translated the tape after listening to it two or four times, the defence said that he had said that the conversation did not have any English words. However, the tape, which was played in the court, contained English words.
The Judge chose to believe the prosecution witness on the grounds that "language is not monopoly of the educated and elite class". The judgment said: "A person educated up to Class V or VI may be knowing his mother tongue much better than a graduate or post-graduate who, after acquiring knowledge of English, starts forgetting his mother tongue and can speak only in Hinglish, Chinglish or Kasinglish." The Judge held that a careful hearing of the tape revealed that Geelani had supported the attack when told his brother, "this is necessary in between". The Judge noted: "The subsequent advice given by his brother also means he should keep quiet and now he should relax or take it easy. The question-answer and the advice given by half brother to Geelani prove that the question was not about a quarrel between husband and wife but about the attack in Parliament."
The court was also to decide on the admissibility of certain types of evidence. One such piece of evidence was the interview given by Mohammed Afsal to the television channel Aaj Tak and The Times of India. In the television interview, a record of which was played in the court, Afsal said that he knew Geelani as a friend but that he (Geelani) did not know anything about the attack. "I never shared any information with him. But one day he told me, `Afsal you are up to some mischief.' That day I came to know that he knew something about me but not from me; he actually knew this from Shaukat. So then to keep him at bay I told him that there were two Pakistanis with me, who I had brought from Kashmir. They basically want to go to UAE [United Arab Emirates]; so to keep him at bay I told him that much." In the interview, when the television reporter asks Afsal about Geelani's involvement, the Assistant Commissioner of Police (ACP) present intervenes and asks Afsal to keep quiet.
Accepting the interview as admissible evidence, the judgment said: "It is settled law that in a conspiracy, only those conspirators are not liable who enter the conspiracy in the beginning. Conspirators may keep on coming and leaving the conspiracy, still each conspirator would be equally liable for the conspiracy." The judgment relied on the prosecution in deciding the conspiracy and stated: "In this case, the entire circumstances proved by prosecution show that initially it was the accused Afsal who was baptised by Ghazi Baba [a `commander' of the militant outfit Jaish-e-Mohammad]. He in turn baptised Shaukat. Shaukat was close to Geelani and it is Shaukat who baptised Geelani for the mission. Ultimately all got together into this conspiracy; that is the reason Afsal thought that Geelani had learnt about his activities from Shaukat. But thereafter they all started working together for the five Pakistani terrorists. Afsal has not stated the time when the knowledge was gained by Geelani. If it had been mere learning and mere knowledge of the accused Geelani, he would not have made a call to the accused Shaukat on midnight of December 12 and December 13, 2001."
In the course of arguments the defence pointed to numerous instances where the police had failed to follow the rules. It also pointed out the "shortcuts" adopted by the investigative agencies to complete their work. One such instance cited was the time when Geelani took the police to Afsan Guru's house, disclosing her whereabouts. The defence had pointed out that his signature does not figure in any of the documents seized in Afsan's house. The defence counsel argued that the prosecution had thus failed to corroborate its conspiracy angle with relevant documents. The counsel also pointed out that though several people were present at the place where Geelani, Afsal and Shaukat Guru were arrested, none was made a witness in the cases. The police did the same things when Afsan Guru was arrested. On this issue, the judgment said: "In view of the prevalent situation in the country, where terrorists are striking at will, blame cannot be put on the police persons as to why they did not procure public witnesses. None shall be ready."
Emphasising that it was the first case to be tried under POTA, counsel for the accused said that all rules under the law should be obeyed. They said that according to POTA it was imperative for the sanctioning authorities to appear in the court to prove that they granted the sanctions to book the case under the Act. The court was to decide on the importance of following these rules as laid out in the Act. The defence counsel pointed out that in this instance the sanctioning authorities, the Lieutenant Governor and the Commissioner of Police, approved the booking of the case under POTA on the basis of notes prepared by the Deputy Secretary (Home) and the Deputy Commissioner of Police (DCP). Moreover, the counsel argued, since the Lieutenant Governor and the Commissioner of Police never appeared in the court nor signed the relevant papers, it was not certain whether they had applied their minds before giving the sanction.
The court disregarded this argument and said in the judgment that the permission given by the Lieutenant Governor and the Commissioner of Police did not suffer from any infirmity. It said that the sanctioning authority's approval of notes prepared by junior officers was the usual mode of working in all government offices. "Whether it was a fit case for grant of sanction or not is decided by Lieutenant Governor or Commissioner of Police by approving or rejecting the note by the application of mind. This is perfectly lawful."
The defence argued that the police had recorded the confessional statement of Afsal and Shaukat Guru using threat and coercion. However, Justice Dhingra did not find this argument plausible. He said: "The fact that when one of the accused, S.A.R Geelani, refused to make the confessional statement before the DCP, his refusal was recorded and he was not compelled to make a confessional statement by the IO [investigating officer] or other police officers lends assurance that the confessional statement of two accused persons [Afsal and Shaukat] were recorded in an atmosphere free from threat and coercion. Had it not been so, the confessional statement of accused S.A.R. Geelani would not have been there."
The Court handed a death sentence to Geelani, Afsal and Shaukat Guru pointing out that they committed the "rarest of rare crime". Reacting to the judgment, Amnesty International said that it was "concerned that the trial of Abdul Rehman Geelani and other two men may have failed to meet international standards for fair trial". Voicing the fears of the convicted persons, it said that the government did not take sufficient care to ensure that the defendants' right to be presumed innocent, the basic aspect of the right to a fair trial, was respected. From the very beginning, the right to a fair trial was the demand of the convicted persons.
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