My Seditious Heart

by Arundhati Roy

  In his Statement of the Accused (which, unlike the confession, is made in court and not police custody), Afzal says: “I had not identified any terrorist. Police told me the names of terrorists and forced me to identify them.”20 But by then it was too late for him. On the first day of the trial, the lawyer appointed by the trial court judge agreed to accept Afzal’s identification of the bodies and the postmortem reports as undisputed evidence without formal proof. This baffling move was to have serious consequences for Afzal. To quote from the Supreme Court judgment, “The first circumstance against the accused Afzal is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. On this aspect the evidence remains unshattered.”

  Of course it’s possible that the dead terrorists were foreign militants. But it is just as possible that they were not. Killing people and falsely identifying them as “foreign terrorists,” or falsely identifying dead people as “foreign terrorists,” or falsely identifying living people as terrorists, is not uncommon among the police or security forces either in Kashmir or even on the streets of Delhi.21

  The best known among the many well-documented cases in Kashmir, one that went on to become an international scandal, is the killing that took place after the Chhittisinghpura massacre. On the night of April 20, 2000, just before US president Bill Clinton arrived in New Delhi, thirty-five Sikhs were killed in the village of Chhittisinghpura by “unidentified gunmen” wearing Indian Army uniforms.22 (In Kashmir many people suspected that Indian security forces were behind the massacre.) Five days later the Special Operations Group and the Rashtriya Rifles, a counterinsurgency unit of the army, killed five people in a joint operation outside a village called Pathribal.23 The next morning they announced that the men were the Pakistan-based foreign militants who had killed the Sikhs in Chhittisinghpura. The bodies were found burned and disfigured. Under their (unburned) army uniforms, they were in ordinary civilian clothes. It turned out that they were all local people, rounded up from Anantnag district and brutally killed in cold blood.

  There are others:

  October 20, 2003: The Srinagar newspaper Alsafa printed a picture of a “Pakistani militant” who the Eighteenth Rashtriya Rifles claimed they had killed while he was trying to storm an army camp. A baker in Kupwara, Wali Khan, saw the picture and recognized it as his son, Farooq Ahmed Khan, who had been picked up by soldiers in a Gypsy (an SUV) two months earlier. His body was finally exhumed more than a year later.24

  April 20, 2004: The Eighteenth Rashtriya Rifles posted in the Lolab valley claimed it had killed four foreign militants in a fierce encounter. It later turned out that all four were ordinary laborers from Jammu, hired by the army and taken to Kupwara. An anonymous letter tipped off the laborers’ families who traveled to Kupwara and eventually had the bodies exhumed.25

  November 9, 2004: The army showcased forty-seven surrendered “militants” to the press at Nagrota, Jammu, in the presence of the general officer commanding Sixteenth Corps of the Indian Army and the director general of police, Jammu and Kashmir. The Jammu and Kashmir police later found that twenty-seven of them were just unemployed men who had been given fake names and fake aliases and promised government jobs in return for playing their part in the charade.26

  These are just a few quick examples to illustrate the fact that in the absence of any other evidence, the police’s word is just not good enough.

  The hearings in the fast-track trial court began in May 2002. Let’s not forget the climate in which the trial took place. The frenzy over the 9/11 attacks was still in the air. The United States was gloating over its victory in Afghanistan. Gujarat was convulsed by communal frenzy. A few months previously, coach S-6 of the Sabarmati Express had been set on fire and fifty-eight Hindu pilgrims had been burned alive inside. As “revenge,” in an orchestrated pogrom, two thousand Muslims were publicly butchered and more than one hundred and fifty thousand driven from their homes.27

  For Afzal, everything that could go wrong went wrong. He was incarcerated in a high-security prison, with no access to the outside world, and no money to hire a lawyer professionally. Three weeks into the trial, the lawyer appointed by the court asked to be discharged from the case because she had now been professionally hired to be on the team of lawyers for S. A. R. Geelani’s defense. The court appointed her junior, a lawyer with very little experience, to represent Afzal. He did not once visit his client in jail to take instructions. He did not summon a single witness for Afzal’s defense and barely cross-examined any of the prosecution witnesses. Five days after he was appointed, on July 8, Afzal asked the court for another lawyer and gave the court a list of lawyers whom he hoped the court might hire for him. Each of them refused. (Given the frenzy of propaganda in the media, it was hardly surprising. At a later stage of the trial, when senior advocate Ram Jethmalani agreed to represent Geelani, Shiv Sena mobs ransacked his Mumbai office.)28 The judge expressed his inability to do anything about this and gave Afzal the right to cross-examine witnesses. It’s astonishing for the judge to expect a layperson to be able cross-examine witnesses in a criminal trial. It’s a virtually impossible task for someone who does not have a sophisticated understanding of criminal law, including new laws that had just been passed, like the Prevention of Terrorism Act, and the amendments to the Evidence Act and the Telegraph Act. Even experienced lawyers had to work overtime to bring themselves up to date.

  The case against Afzal was built up in the trial court on the strength of the testimonies of almost eighty prosecution witnesses: landlords, shopkeepers, technicians from cell-phone companies, the police themselves. This was a crucial period of the trial, when the legal foundation of the case was being laid. It required meticulous, backbreaking legal work in which evidence needed to be amassed and put on record, witnesses for the defense summoned, and testimonies from prosecution witnesses cross-examined. Even if the verdict of the trial court went against the accused (trial courts are notoriously conservative), the evidence could then be worked on by lawyers in the higher courts. Through this absolutely critical period, Afzal went virtually undefended. It was at this stage that the bottom fell out of his case, and the noose tightened around his neck.

  Even still, during the trial, the skeletons began to clatter out of the Special Cell’s cupboard in an embarrassing heap. It became clear that the accumulation of lies, fabrications, forged documents, and serious lapses in procedure began from the very first day of the investigation. While the Delhi High Court and Supreme Court judgments have pointed these things out, they have just wagged an admonitory finger at the police, or occasionally called it a “disturbing feature,” which is a disturbing feature in itself. At no point in the trial have the police been seriously reprimanded, let alone penalized. In fact, almost every step of the way, the Special Cell displayed an egregious disregard for procedural norms. The shoddy callousness with which the investigations were carried out demonstrates a worrying belief that they wouldn’t be “found out,” and if they were, it wouldn’t matter very much. Their confidence does not seem to have been misplaced.

  There is fudging in almost every part of the investigation.29 Consider the time and place of the arrests and seizures: The Delhi police said that Afzal and Shaukat were arrested in Srinagar based on information given to them by Geelani following his arrest. The court records show that the message to look out for Shaukat and Afzal was flashed to the Srinagar police on December 15 at 5:45 a.m. But according to the Delhi police’s records, Geelani was only arrested in Delhi on December 15 at 10:00 a.m.—four hours after they had started looking for Afzal and Shaukat in Srinagar. They haven’t been able to explain this discrepancy. The high court judgment puts it on record that the police version contains a “material contradiction” and cannot be true. It goes down as a “disturbing feature.” Why the Delhi police needed to lie remains unasked—and unanswered.

  When the police arrest somebody, procedure requires them to have public witnesses for the arrest who sign an ar
rest memo and a seizure memo for what they may have “seized” from those who have been arrested—goods, cash, documents, whatever. The police claim they arrested Afzal and Shaukat together on December 15 at 11:00 a.m. in Srinagar. They say they “seized” the truck the two men were fleeing in (it was registered in the name of Shaukat’s wife). They also say they seized a Nokia mobile phone, a laptop, and one million rupees ($20,100) from Afzal. In his Statement of the Accused, Afzal says he was arrested at a bus stop in Srinagar and that no laptop, mobile phone, or money was “seized” from him.

  Scandalously, the arrest memos for both Afzal and Shaukat have been signed in Delhi, by Bismillah, Geelani’s younger brother, who was at the time being held in illegal confinement at the Lodhi Road Police Station. Meanwhile, the two witnesses who signed the seizure memo for the phone, the laptop, and the one million rupees ($20,100) are both from the Jammu and Kashmir police. One of them is Head Constable Mohammed Akbar (Prosecution Witness 62) who, as we shall see later, is no stranger to Mohammad Afzal, and is not just any old policeman who happened to be passing by. Even by the Jammu and Kashmir police’s own admission they first located Afzal and Shaukat in Parimpura Fruit Mandi. For reasons they don’t state, the police didn’t arrest them there. They say they followed them to a less public place—where there were no public witnesses.

  So here’s another serious inconsistency in the prosecution’s case. Of this the high court judgment says “the time of arrest of accused persons has been seriously dented.” Shockingly, it is at this contested time and place of arrest that the police claim to have recovered the most vital evidence that implicates Afzal in the conspiracy: the mobile phone and the laptop. Once again, in the matter of the date and time of the arrests, and in the alleged seizure of the incriminating laptop and the one million rupees ($20,100), we have only the word of the police against the word of a “terrorist.”

  The seizures continued: The seized laptop, the police said, contained the files that created the fake home ministry pass and the fake identity cards. It contained no other useful information. They claimed that Afzal was carrying it to Srinagar in order to return it to Ghazi Baba. The investigating officer, assistant commissioner of police Rajbir Singh, said that the hard disk of the computer had been sealed on January 16, 2002 (a whole month after the seizure). But the computer shows that it was accessed even after that date. The courts have considered this but taken no cognizance of it.

  (On a speculative note, isn’t it strange that the only incriminating information found on the computer were the files used to make the fake passes and ID cards? And a Zee TV film clip showing the Parliament building. If other incriminating information had been deleted, why wasn’t this? And why did Ghazi Baba, chief of operations of an international terrorist organization, need a laptop—with bad artwork on it—so urgently?)

  Consider the mobile phone call records: Stared at for long enough, a lot of the “hard evidence” produced by the Special Cell begins to look dubious. The backbone of the prosecution’s case has to do with the recovery of mobile phones, SIM cards, computerized call records, and the testimonies of officials from cell phone companies and shopkeepers who sold the phones and SIM cards to Afzal and his accomplices. The call records that were produced to show that Shaukat, Afzal, Geelani, and Mohammad (one of the dead militants) had all been in touch with each other very close to the time of the attack were uncertified computer printouts, not even copies of primary documents. They were outputs of the billing system stored as text files that could have been easily doctored and at any time. For example, the call records that were produced show that two calls had been made at exactly the same time from the same SIM card, but from separate handsets with separate International Mobile Equipment Identity numbers. This means that either the SIM card had been cloned or the call records were doctored.

  Consider the SIM card: To prop up its version of the story, the prosecution relies heavily on one particular mobile phone number—9811489429. The police say it was Afzal’s number—the number that connected Afzal to Mohammad, Afzal to Shaukat, and Shaukat to Geelani. The police also say that this number was written on the back of the identity tags found on the dead terrorists. Pretty convenient. Lost Kitten! Call Mom at 9811489429.

  It’s worth mentioning that normal procedure requires evidence gathered at the scene of a crime to be sealed. The ID cards were never sealed and remained in the custody of the police and could have been tampered with at any time.

  The only evidence the police have that 9811489429 was indeed Afzal’s number is Afzal’s confession, which as we have seen is no evidence at all. The SIM card has never been found. The police produced a prosecution witness, Kamal Kishore, who identified Afzal and said that he had sold him a Motorola phone and a SIM card on December 4, 2001. However, the call records the prosecution relied on show that that particular SIM card was already in use on November 6, a whole month before Afzal is supposed to have bought it. So either the witness is lying, or the call records are false. The high court glosses over this discrepancy by saying that Kamal Kishore had only said that he sold Afzal a SIM card, not this particular SIM card. The Supreme Court judgment loftily says, “The SIM card should necessarily have been sold to Afzal prior to 4.12.2001.”

  Consider the identification of the accused: A series of prosecution witnesses, most of them shopkeepers, identified Afzal as the man to whom they had sold various things: ammonium nitrate, aluminum powder, sulfur, a Sujata mixer-grinder, packets of dried fruit, and so on. Normal procedure would require these shopkeepers to pick Afzal out from a number of people in a test identification parade. This didn’t happen. Instead, Afzal was identified by them when he “led” the police to these shops while he was in police custody and introduced to the witnesses as an accused in the Parliament attack. (Are we allowed to speculate about whether he led the police or the police led him to the shops? After all he was still in their custody, still vulnerable to torture. If his confession under these circumstances is legally suspect, then why not all of this?)

  The judges have pondered the violation of these procedural norms but have not taken them very seriously. They said that they did not see why ordinary members of the public would have reason to falsely implicate an innocent person. But does this hold true, given the orgy of media propaganda that ordinary members of the public were subjected to, particularly in this case? Does this hold true, if you take into account the fact that ordinary shopkeepers, particularly those who sell electronic goods without receipts in the “gray market,” are completely beholden to the Delhi police?

  None of the inconsistencies that I have written about so far are the result of spectacular detective work on my part. A lot of them are documented in an excellent book titled December 13: Terror over Democracy by Nirmalangshu Mukherji; in two reports (“Trial of Errors” and “Balancing Act”) published by the People’s Union for Democratic Rights, Delhi; and most important of all, in the three thick volumes of judgments of the trial court, the high court, and the Supreme Court. All these are public documents, lying on my desk. Why is it that when there is this whole murky universe begging to be revealed, our TV channels are busy staging hollow debates between uninformed people and grasping politicians? Why is it that apart from a few sporadic independent commentators, our newspapers carry front-page stories about who the hangman is going to be and macabre details about the length (60 feet) and weight (3.75 kilograms) of the rope that will be used to hang Mohammad Afzal?30 Shall we pause for a moment to say a few hosannas for the “free” press?

  It’s not an easy thing for most people to do, but if you can, unmoor yourself conceptually, if only for a moment, from the Police are Good / Terrorists are Evil ideology. The evidence on offer minus its ideological trappings opens up a chasm of terrifying possibilities. It points in directions in which most of us would prefer not to look.

  The prize for the Most Ignored Legal Document in the entire case goes to the Statement of the Accused Mohammad Afzal under Section 313 of the Crimin
al Procedure Code. In this document, the evidence against him is put to him by the court in the form of questions. He can either accept the evidence or dispute it, and he has the opportunity to put down his version of his story in his own words. In Afzal’s case, given that he has never had any real opportunity to be heard, this document tells his story in his voice.

  In this document, Afzal accepts certain charges made against him by the prosecution. He accepts that he met a man called Tariq. He accepts that Tariq introduced him to a man called Mohammad. He accepts that he helped Mohammad come to Delhi and helped him to buy a second-hand white Ambassador car. He accepts that Mohammad was one of the five fedayeen who was killed in the attack. The important thing about Afzal’s Statement of the Accused is that he makes no effort to completely absolve himself or claim innocence. But he puts his actions in a context that is devastating. Afzal’s statement explains the peripheral part he played in the Parliament attack. But it also ushers us toward an understanding of some possible reasons for why the investigation was so shoddy, why it pulls up short at the most crucial junctures, and why it is vital that we do not dismiss this as just incompetence and shoddiness. Even if we don’t believe Afzal, given what we do know about the trial and the role of the Special Cell, it is inexcusable not to look in the direction he’s pointing. He gives specific information— names, places, dates. (This could not have been easy, given that his family, his brothers, his wife and young son live in Kashmir and are easy meat for the people he mentions in his deposition.) In Afzal’s words:

  I live in Sopre [Sopore] Jammu and Kashmir [Jammu and Kasmir] and in the year 2000 when I was there army used to harass me almost daily, then said once a week. One Raja Mohan Rai used to tell me that I should give information to him about militants. I was a surrendered militant and all militants have to mark Attendance at Army Camp every Sunday. I was not being physically torture by me. He used to only just threatened me. I used to give him small information which I used to gather from newspaper, in order to save myself. In June/July 2000 I migrated from my village and went to town Baramullah. I was having a shop of distribution of surgical instruments which I was running on commission basis. One day when I was going on my scooter S.T.F. [Special Task Force] people came and picked me up and they continuously tortured me for five days. Somebody had given information to S.T.F. that I was again indulging in militant activities. That person was confronted with me and released in my presence. Then I was kept by them in custody for about 25 days and I got myself released by paying rupees 1 lakh [one hundred thousand rupees ($2,000)]. Special Cell People had confirmed this incident. Thereafter I was given a certificate by the S.T.F. and they made me a Special Police Officer for six months. They were knowing I will not work for them. Tariq met me in Palhalan S.T.F. camp where I was in custody of S.T.F. Tariq met me later on in Sri Nagar and told me he was basically working for S.T.F. I told him I was also working for S.T.F. Mohammad who was killed in attack on Parliament was along with Tariq. Tariq told me 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 country from Delhi after some time. I don’t know why I was caught by the police of Sri Nagar on 15.12.2001 [December 15, 2001]. I was boarding bus at Sri Nagar bus stop, for going home when police caught me. Witness Akbar who had deposed in the court that he had apprehended Shaukat and me in Sri Nagar had conducted a raid at my shop about a year prior to December 2001 and told me that I was selling fake surgical instruments and he took rupees 5,000/- [roughly $100] from me. I was tortured at Special Cell and one Bhoop Singh even compelled me to take urine and I saw family of S. A. R. Geelani also there, Geelani was in miserable condition. He was not in a position to stand. We were taken to doctor for examination but instructions used to be issued that we have to tell doctor that everything was alright with a threat that if we do not do so we be again tortured.