Date:18/12/2002 URL: http://www.thehindu.com/2002/12/18/stories/2002121800561000.

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The Parliament attack case

THE PARLIAMENT ATTACK case has concluded in a dramatic fashion with the special court finding all the four accused guilty and upholding most of the charges the prosecution had levelled against them. Of the four, three two Jaish-e-Mohammed militants, Shaukat Hussein Guru and Mohammed Afzal, and the suspended Delhi University lecturer, Syed Abdul Rahman Geelani have been convicted under the Prevention of Terrorism Act (POTA), the first persons to be held guilty under the legislation, which was passed amidst controversy by a joint session of Parliament in March this year. The special court judge has held them guilty of conspiring with the five slain terrorists to capture Parliament House, take the MPs present hostage and kill a select few such as the Prime Minister and the Home Minister thereby upholding the broad outline of the conspiracy as detailed by the prosecution. One of the striking things about this case is the speed with which the whole process from chargesheet to conviction has taken place. The attack on Parliament House took place a little over a year ago and since the special court framed charges only this June, the trial proceedings have been over in less than six months. Even if a part of the reason for the swiftness owes to the circumvention of time-consuming legal procedures that POTA makes possible, the overall sense of urgency in reaching a judicial conclusion has been unmistakable and has played an enormous role in hastening the proceedings. The fact that so many witnesses were heard and so many documents were sifted through in this period is a testimony to the scorching judicial pace set by the court. If cases can be disposed of so quickly, then there is no justification for the criminal justice system in India to shamble along at such an excruciatingly sluggish pace. The commitment to hastening the delivery of justice must be irrespective of considerations that are related to the high-profile nature of the case or the degree of official interest in it. It was widely believed that the prosecution's case had become much more difficult when the case encountered an unexpected snag. The special court had admitted transcripts of incriminating telephone conversations as evidence but this was overruled by the Delhi High Court which held much to the embarrassment of the prosecution that the transcripts could not be used in the case as the police had failed to follow the procedures laid down under POTA for tapping phones. It was by tapping telephones that the police unearthed the conspiracy and the transcripts had seemed very important, if not vital, for the success of the prosecution's case under POTA. Apparently, the special court judge, S. N. Dhingra, felt there was sufficient evidence in the confessional statements and other incriminatory facts unearthed by the police to find the accused guilty of most of the offences they were charged with.

The fact that the judge has upheld the prosecution's case substantially is reflected in the fact that only two offences under POTA membership of a terrorist organisation and possessing the proceeds of terrorism have not been maintained. While both Guru and Afzal played a direct role in assisting the fidayeen to launch their attack on Parliament, the involvement of Geelani is relatively somewhat tangential. Even so, all three have been found guilty of offences where the maximum penalty is death, something which the prosecution has sought. What remains now is for the special court to pass the sentence on the four accused in this case which has excited considerable interest and a fair amount of criticism about the manner in which the police conducted the investigation and the manner in which they attempted to legitimise the tapped telephone transcripts. It took those accused in the Rajiv Gandhi assassination over a decade to receive final justice. This is still an appeal away in the Parliament attack case, but it will be reached in much less time. Copyright 2000 - 2009 The Hindu

Date:09/12/2002 URL: http://www.thehindu.com/2002/12/09/stories/2002120905541200.htm Back Opinion - News Analysis

Few straight answers yet

By Anjali Mody NEW DELHI DEC. 8. The December 13 attack on Parliament was considered the most audacious terror attack in India. It was an attack at the heart of Indian democracy, we were told, a sign that the enemy would stop at nothing. In the surcharged atmosphere after December 13, 1,00,000 Indian troops were positioned on the border in preparation for war. Yet, almost one year later, there are few straight answers about the attack, apart from the fact that it happened. The five men who conducted the attack are dead. According to the authorities, they were Pakistani nationals. Four other Pakistani nationals, including Jaish-e-Mohammed (JeM) `commander' Ghazi Babi, are proclaimed offenders. But four Indians, a Delhi University lecturer, a pregnant housewife, her businessman husband and a former JKLF militant were accused of conspiring, with the dead, to wage war against the state, assassinate elected leaders, and terrorise the Indian people. Ignored by a disinterested media the trial of these four persons has been conducted at a pace unprecedented in the history of the Indian judiciary. The trial, at the special POTA court of Justice S.N. Dhingra in New Delhi, took less than six months, including court recesses. In the course of the trial over 90 witnesses were heard; hundreds of documents, half-a-dozen mobile phones, intercepted telephone calls, a laptop, explosive substances and a television interview were examined as material evidence. The Delhi police special cell investigated the case.

On December 11, less than one year from the date of the attack, the court will decide on the innocence or guilt of the four on charges for which the maximum punishment is death. The four accused are: Syed Abdul Rehman Geelani, lecturer in Arabic at Zakir Hussain College, Delhi University, Afsan Guru/Navjot Sandhu, daughter of a retired railway official and wife of a Kashmiri businessman, Shaukat Hussain Guru, a former Delhi University student and now a member of the Sopore Apple Market, and Mohammed Afzal, a former JKLF militant who in 1995 laid down arms and attempted to re-enter mainstream life. According to the chargesheet, the four are members of the JeM which, acting on the instructions of Ghazi Baba, planned the attack on Parliament. The prosecution's case is that the conspiracy involving Afzal, Shaukat, Geelani and Afsan came to light after they recovered a set of mobile phone instruments and slips of paper from the dead terrorists. The call records of these telephones showed calls to telephone number 9811489429 which allegedly belonged to Afzal. This phone's call record showed calls to 9810081228 and 981157350, belonging to Geelani and Shaukat. A telephone tap was placed on both these numbers. As Geelani's had a subscriber account they were able to get his address. They placed his house, in New Delhi, under surveillance on December 13 and 14 and arrested him on December 15. Geelani, the prosecution said, led them to the home of Afsan and Shaukat. And Afsan gave them the whereabouts of her husband and Afzal. They were arrested on the same day in Srinagar, allegedly with a laptop and Rs. 10 lakhs. Following the arrests Afzal led the police to his `hide-outs' from where they recovered explosive substances and also to the shops from where he had made purchases to assemble the explosives. Police also took Shaukat, who had no role in the recoveries, with them to each of these sites. At these places police identified Afzal and Shaukat as the men involved in the Parliament attack, and the landlords of the property and the shopkeepers then positively identified them as the men they had seen. Police also recorded confessions by Afzal and Shaukat in which they admitted their guilt and implicated Geelani and Afsan. Neither Geelani nor Afsan made confessional statements. The prosecution argued that the confessional statements taken in conjunction with the material evidence revealed a conspiracy involving the four. This was the crux of the prosecution's case, and was widely publicised in the days after the attack. In fact, even before the police recorded Afzal's statement they presented him to the media before whom he made what appeared to be a complete public confession. This was apparently an open and shut case. The defence, however, has argued that the case throws up more questions than it presents answers. The first crucial link in the chain, Afzal's alleged telephone, was found to have been in use many weeks before he purchased it. All the four accused have challenged the police version of their arrests. Shaukat retracted his confession. Evidence was shown, in court, to have been tampered with. The evidence contradicted police statements. Afzal denied that he had made statements implicating Geelani or Afsan. The High Court pronounced as inadmissible, under POTA, the taped telephone intercepts which the prosecution relied on as corroborative evidence. Copyright 2000 - 2009 The Hindu

Date:09/10/2006 URL: http://www.thehindu.com/2006/10/09/stories/2006100901901000.htm

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Opinion - Editorials

Clemency for the right reasons

The issue of exercising presidential clemency and commuting to life imprisonment the death sentence passed on Mohammad Afzal in the December 13, 2001 Parliament attack case which took a toll of nine lives, not counting the five terrorists killed by the security forces has proved to be extremely divisive. It has pitted those who favour a hard line on terrorism against those considered soft, and politicians and groups in Kashmir against much of the rest of the nation. Yet if Afzal deserves a life sentence rather than death by hanging, it is because the death penalty is abhorrent under any circumstances. To plead for clemency alleging a flawed trial or pointing to incensed Kashmiri sentiment is to miss the point. First, it is clear that he was convicted after a fair trial, with the judiciary from the trial court through the high court to the Supreme Court concurring on both his guilt and his sentence, even while two others were acquitted. Critics of the Afzal verdict have made it out that he did not have proper legal representation; that the evidence against him was not direct but only circumstantial; and that as he did not actually take part in the attack or mastermind it, he should have been given a lesser sentence. These issues were examined at length by the Supreme Court, which found that he was adequately represented. Even after disregarding his confession to the police, the apex court found enough circumstantial evidence of his being a key conspirator who played an active role in the attack. This role included the purchase of mobile phones for the terrorists; being in contact with them in the minutes before the attack; arranging accommodation for them and staying with them; and purchasing vehicles and explosive material for the attack. As for the nature of the offence, the court found it to be "a terrorist act of gravest severity" and "a spectacle of the rarest of rare cases," warranting the death sentence. The argument rooted in Kashmiri sentiment also seems to be on shaky ground. It is a measure of the peculiar circumstances in Jammu & Kashmir that even mainstream political parties in the State think nothing of identifying themselves with a convicted terrorist and pleading his cause. Yet going by such considerations would be subversive of the fundamental principles of the rule of law and setting a dangerous precedent. For any group or region could use its collective voice and muscle to bale out anyone convicted by a court. The Hindu has, for some decades now, been calling for the abolition of the death penalty and this consistent editorial position will naturally be valid for Afzal's case as well. After surviving a constitutional challenge, the death penalty is now supposed to be

applied only in "the rarest of rare cases," as laid down by the Supreme Court. Yet however grave or gruesome the crime, the taking of a human life by the state under the banner of justice dehumanises society as a whole. The judicial system is not immune to mistakes, and there is always the danger of extinguishing a life in error. That this is not hypothetical has been shown occasionally by DNA evidence clearing a convicted criminal on death row. In a 1930 case in Bihar, five persons were sentenced to death on a charge of murder but had to be released because it was discovered just in time that the case had been totally fabricated by a police officer. The most common argument advanced in favour of capital punishment is that it is qualitatively different from imprisonment and, as all fear death, it is the most effective deterrent. Yet there is little evidence that the death penalty is any more deterrent than imprisonment for life. Indeed, the evidence, if any, supports the opposite conclusion: the period when the death penalty remained suspended in the United States, for instance, did not see any change in the number of `capital offences.' Very often, rather than deterrence, the unstated rationale is retribution and revenge the taking of a life for a life. In the Afzal case, the Supreme Court comes close to echoing such sentiments when it says: "the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender" and he "is a menace to the society and his life should become extinct." Over the past half century, proposals made on and off for the abolition of capital punishment fell through because of the argument that public opinion and the conditions in the country did not warrant such a radical change. Such a line was taken even by the Law Commission when it examined the issue in detail, but that was in 1967. Now, abolition is becoming more and more the international norm, with the whole of Europe doing without it as India found when Portugal allowed the extradition of Abu Salem on condition that he would not be awarded the death penalty. The Government needs to turn the issues thrown up by the latest case into a broader discussion on whether India can retain on its statute book something so abhorrent to human rights as the death penalty and should move boldly towards its abolition. Meanwhile, in the specific case of Mohammad Afzal, the death sentence must be commuted to imprisonment for life. This is indeed a fit case for the use of presidential clemency for the right reasons. The pleading by Afzal's wife and seven-year-old son and his background as a surrendered militant who cooperated with the authorities are reasons sound enough to exercise the executive power of clemency, which may be subject to broad judicial scrutiny but still retains a large measure of discretion. Copyright 2000 - 2009 The Hindu

Date:31/10/2003 URL: http://www.thehindu.com/2003/10/31/stories/2003103100871000.htm

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Opinion - Editorials

Justice done
ALL IN ALL, the Delhi High Court's verdict in the high-profile Parliament attack case will be remembered less for whom it convicted and more for whom it acquitted. In acquitting S.A.R. Geelani, a Delhi college lecturer, and Afsan Guru, wife of one of the accused, the two-member Bench has overturned the controversial and ill-reasoned judgment of the designated POTA court, one that was widely regarded as having made a string of presumptions in favour of the prosecution that had absolutely no basis in law. The case against Mr. Geelani who was convicted and sentenced to death by the Additional Sessions Judge, S.N. Dhingra was ludicrously weak. The lecturer in Arabic was said to have been in contact with the co-accused, Mohammed Afzal and Shaukat Hussain Guru, a fact of no significance by itself and one that Mr. Geelani freely admitted. The prosecution also made much of an intercepted telephone conversation between Mr. Geelani and his brother, which was interpreted in an extremely fanciful manner to suggest that the former was involved in the attack on Parliament House. While holding, and quite correctly, that such flimsy evidence cannot be used to draw inferences against Mr. Geelani, the Delhi High Court has drawn attention to the total lack of evidence against the lecturer in critical areas. For instance, there was no evidence that Mr. Geelani was in touch with any of the five terrorists who were slain in the attack. Moreover, there was absolutely nothing on record to suggest he had a role in arranging hideouts and procuring either arms or explosives used in the conspiracy. While the designated POTA court had absolved Afsan Guru of being a part of the conspiracy, it found her guilty of failing to report it despite having prior knowledge. The Delhi High Court, however, found that there was insufficient evidence even to draw an imputation that she was aware of the conspiracy, thus raising more questions about the disturbing manner in which the prosecution went about its job in its apparent overenthusiasm in cracking this high-profile case. If there is a perception that the Delhi High Court's judgment is a `soft' one, it is mistaken. This is borne out by its decision to enhance the sentence awarded by the designated court against Afzal and Shaukat Guru on one count. The High Court sentenced them to death for the offence committed under Section 121 (waging war against the state) even though the designated court had only imposed a sentence of life imprisonment under this Section. At one level, the Delhi High Court's judgment is a welcome reflection of the strength of the judicial process, particularly its capacity for self-correction. It comes at a time when there are serious anxieties about the increasing abuse of power and disregard for civil liberties in the name of waging a war against terrorism. At another level, the Court's judgment has indirectly exposed how, despite the much-touted safeguards in the Prevention of Terrorism Act, the draconian legislation makes it inordinately difficult for an innocent man to defend himself. The very fact that Mr. Geelani could have been convicted and sentenced to death by one court of law and acquitted on the ground that the evidence "does not even remotely, far less definitely" point towards his guilt by another reveals the inherent danger in the anti-terrorism law that dispenses with the safeguards contained in ordinary criminal procedure. Mr. Geelani's travails lend an additional dimension to the fatal flaws in POTA, which in its short history has already demonstrated that it can be used to fix political opponents and put people behind bars

for indefinite periods. Its use in the Parliament attack case provides another telling reason why POTA should go. Copyright 2000 - 2009 The Hindu

Date:20/12/2002 URL: http://www.thehindu.com/2002/12/20/stories/2002122000161000.htm Back Opinion - Editorials

The death sentences

SHOULD WE LIVE with the death penalty? The sentencing to death of three of those found guilty in the Parliament attack case by the special POTA court is bound to agitate questions about the use and imposition of capital punishment. There are two kinds of issues that the sentencing throws up. First, the narrower or limited one namely, whether the three men (Shaukat Hussain Guru, Mohammed Afzal and S.A.R. Geelani) deserved to receive this harshest of punishments. And second, the more general and wide-ranging one namely, whether there is any place for capital punishment in a modern and civilised society. In his order, the special court judge, S.N. Dhingra, addresses the first question by trying to show why the Parliament attack case falls into the category of the "rarest of the rare cases", or those that warrant the death penalty. While describing those who he sentenced as hardcore terrorists and enemies of mankind, his order also touches on the second issue by providing a general justification for the death penalty: "The punishment in such cases must be a deterrent to others". Mr. Dhingra has made it more than clear why he believes that those he found guilty should be treated with no leniency whatsoever. However, one of the things that the history of capital punishment in this country (as well as many others) has demonstrated is that in highly sensitive or emotive cases, there is no guarantee that justice will not miscarry in the face of social pressures for conviction or the presence of an overzealous prosecution. Moreover, a further problem with the application of the death penalty is that it involves a great deal of judicial discretion; as a result, whether a person is hanged or not depends considerably on the views of a particular judge. For instance, in the Rajiv Gandhi assassination case, the special court in Tamil Nadu sentenced all 26 accused to death. A year later, the Supreme Court commuted three of the death sentences to life and released 19 defendants on the grounds that they were guilty only of relatively minor offences and had already served several years in custody as undertrials. The inevitability of judicial error in a penalty that is (uniquely) irrevocable is one of the truly frightening features of capital punishment. As for the Parliament attack case, the role of at least one of the three sentenced to death the suspended Delhi University lecturer, S.A.R. Geelani seemed somewhat marginal to the overall conspiracy. In fact, none of the three was directly responsible for perpetrating the outrage within the precincts of Parliament House. On this question,

however, the court has adopted a strict construction of the law, having observed that those who hatch a criminal conspiracy to wage war against the nation are equally guilty as the actual perpetrators of the crime. As for the court's general observation that the death penalty acts as a deterrent, it is an argument that is commonly advanced by proponents of capital punishment. However, there is no conclusive empirical basis to the claim that the death penalty puts off or discourages potential criminals. The death penalty continues to apply to a wide range of offences in India even as more and more countries all over the world are turning abolitionist, many of them in law and the others in practice. It is odd that even as the international consensus against the death penalty increases continuously, the scope for applying it has increased in India over the years. The most recent example of this, of course, is the revival of TADA through the passing of POTA, a legislation that was modelled on the lapsed law and is disturbingly similar in many ways. Criminals deserve to be punished and, if their crimes warrant it, with severity. But even harshness has its limits, which are dictated by conceptions of justice and a respect for human life and dignity. And as long as effective alternatives to capital punishment exist, there will always be doubts about its use as an instrument of social policy. Copyright 2000 - 2009 The Hindu