The many faces of nationalism
You want proof that the sun exists, so you stay up/All night talking about it. Finally you sleep/As the sun comes up.
Jelaluddin Balkhi ‘Rumi’
ON 13 December 2001, the entire country watched the attack on the Indian Parliament on their TV screens. We all saw the bloodied faces of the five attackers killed by our security forces. The country went into a state of shock. No one questioned the government’s story that the attack was the handiwork of Pakistan-based terrorists belonging to the Lashkar-e-Toiba and Jaish-e-Mohammad. The media, in a willing suspension of disbelief, published whatever the police and investigating agencies put out.
The police completed its entire investigation in a record time of one week and quickly arrested four people – three Kashmiri men and a Sikh woman – for helping the five deceased attackers. The main accused, Mohammad Afzal, from the start cooperated with the police and led them to the hide-outs of the five attackers and the shops from where they had purchased mobile phones, cash cards and chemicals for making bombs. He also confessed to being a part of the conspiracy.
The Special Branch organised a press conference on 20 December at the Lodhi Road Police Station and produced Mohammad Afzal before the national media. In full view of the nation, Afzal confessed to being a part of the conspiracy to attack the Parliament. One effect of this ‘media trial’ was that the public no longer felt the need for a ‘judicial trial’. Since everyone in the country knew who had attacked our Parliament, where was the need for formal proof.
The media trial also served a political purpose. The government stood vindicated in the world arena with the international community finally forced to admit that India was a victim of cross-border terrorism. Troops were amassed on the India-Pakistan border, war seemed imminent and there was even talk of nuclear bombs.
In the midst of this war against terrorism, the government arranged a joint meeting of the two Houses of Parliament to pass the Prevention of Terrorism Act. It would require rare courage for anyone to question the efficacy of POTA a few weeks after the attack on Parliament. It would be blatantly anti-national and unpatriotic. And thus India joined the war against terrorism.
In the Delhi University the ‘ultranationalist’ forces demanded that the services of S.A.R. Geelani, a lecturer at Zakir Hussain College and one of the four accused of being a part of the conspiracy to attack the Parliament, be terminated. They said there was no need to wait for the trial to begin. After all, even respectable newspapers had carried screaming tabloid style headlines that Geelani had confessed to being a part of the conspiracy. Besides, he was a Kashmiri Muslim and taught Arabic. What more proof could anyone want of his complicity in the conspiracy?
The media of course did not carry any report of the fact that despite use of torture by the police to extort a confession, Geelani had refused to admit to his guilt. No one questioned the Special Branch’s blatantly false claims that Geelani had made a confession.
In the midst of this environment of prejudice and hatred, a group of Zakir Hussain College teachers worked quietly but consistently to oppose the forces of fascism and prevent Geelani’s services from being terminated. Some Delhi University teachers came together to address issues arising out of Geelani’s trial. A few visited Geelani in jail, even though they did not know him personally. Others fought long and hard to win support of the teachers unions. Unfortunately, the unions even hesitated to issue a statement demanding a fair trial for a member accused of a terrorist act.
There was a small group of citizens, including veteran socialists, civil liberties activists and democratic Indians who were deeply concerned over the fact that the new anti-terrorist law made it virtually impossible for any accused to prove his innocence. And they believed Geelani when he said he was innocent.
The challenge before this small but committed group of Indian citizens was how to turn public opinion – to make people aware of the dangers of convicting people merely on the basis of police suspicion, without a fair trial, and to create a climate where the life and liberty of a fellow citizen could not be sacrificed at the altar of national chauvinism. This appeared an impossible task even when some of the country’s most prominent citizens formed themselves into the All India Committee for the Defence of S.A.R. Geelani.
We will leave it to history to judge whether Geelani and the other three accused were given a fair trial in the designated court. In the defence committee’s view the judge, S.N. Dhingra, made no effort to mask his prejudice, forcing teachers of Delhi and Jawaharlal Nehru University to write an open letter to the Chief Justice of the Supreme Court to ensure a fair trial for Geelani.
The designated court sentenced Geelani and two of his co-accused to death even as Navjot was given five years. A mob burst crackers outside the courtroom to celebrate the event. The members of the Special Branch, in pressed suits and polished shoes, could not stop smiling; they had become national heroes.
At the time it seemed virtually certain that an innocent citizen would hang. Could there be any greater shame for a country that called itself the largest democracy in the world? The trial exposed how easily patriotism could be twisted to serve the needs of those who wanted fascism to triumph in this country, my country.
I felt a deep, burning shame when I heard how members of the Special Branch had urinated on Afzal and Shaukat, the lower court judge mocked the pregnant Navjot, and the jail authorities prevented Geelani from offering Namaz last Id. What greater proof of our dehumanization than when a man condemned to death is denied even his right to worship. Surprisingly, the National Human Rights Commission did not react. The media indulged in defamation with impunity, throwing all journalistic ethics to the wind. Political parties committed to democratic and secular values of our Constitution did not raise their voice against the denial of fair trial to the four accused; they did not react even when an attempt was made on Geelani’s life in the jail. All this in the name of nationalism.
Geelani heard the death sentence on 18 December 2001. When asked for his reaction, he responded quietly, calmly, with great dignity and political clarity: ‘By convicting innocents you cannot suppress feelings. Peace comes with justice. Without justice there will be no democracy. It is Indian democracy that is under threat.’
The death sentence for Geelani shocked the people in Kashmir and they declared a bandh for three days. Hundreds in Kashmir sent postcards to the Home Minister and the National Human Rights Commission demanding a fair trial for Geelani and the other three accused, insisting that if only Geelani got a fair trial he would be acquitted. In the rest of the country too people demanded a fair trial, even if ambivalent about Geelani’s innocence.
The media neither supported this campaign nor reported on its growing momentum. For them it was not news that more than 50,000 postcards had been sent from right across the country demanding a fair trial. Apart from the three universities in Delhi, we got support from the university community in West Bengal. The All Bengal University Teachers Association, representing nine universities, passed a resolution in Geelani’s support. With the help of our website, pamphlets, posters, meetings and alternative media in regional languages we reached more than a hundred thousand people. The campaign also got the support of individuals and organizations abroad – from Amnesty International to Noam Chomsky.
The fact that Ram Jethmalani, senior counsel and former Union Law Minister, offered to defend Geelani pro bono greatly boosted our campaign. Ram Jethmalani argued with passion and conviction. He told the High Court judges hearing the case that Geelani did not get even a moment’s fair trial in the lower court, that he had taken up the case because he was morally convinced that Geelani was innocent and there was no evidence against him.
The campaign for Geelani’s release, along with Ram Jethmalani’s passionate defence, succeeded in getting Geelani’s acquittal.
The acquittal of the 34 year old Delhi University lecturer was hailed as a triumph of Indian democracy. Newspapers across the country carried editorials proclaiming that justice had been done. For some the judgement reflected the competence and independence of our judiciary. Others, who had lost hope in Indian secularism in the aftermath of the Gujarat riots and the rising tide of communal prejudice, felt that the judgement of the Delhi High Court had vindicated their faith in Indian secularism. Still others felt that the judgement reflected the vibrancy of our democratic institutions.
There were those who read the news of the acquittal with an indescribable happiness, similar to the one when we encounter a miracle. Friends who had lost touch with me for more than 15 years called to express their joy. In a manner of speaking, the judgement is a miracle. How many of us really believe that a Kashmiri Muslim sentenced to death for conspiring to attack the Indian Parliament can be acquitted, even if absolutely innocent?
And then our ‘patriotic’ celebration seemed to have been abruptly sullied by a statement made by Geelani at a press conference immediately after his release from jail. Instead of praising Indian democracy, or at least the judiciary, he expressed concern about the politicization of our courts and the criminalization of the police. Also that a lasting solution to the Kashmir conflict could emerge if only the aspirations of the people of Kashmir were taken into account. He added that he wanted to help other prisoners, especially the Kashmiris in Tihar jail, who had been denied a fair trial.
It is true that a few thought Geelani’s statement reflected a rare courage. Even at the press conference his colleagues, including senior professors, endorsed his statement by clapping and cheering. But there were many others who felt he was being rash and foolhardy by making such statements, especially since the police had already announced that they would appeal to the Supreme Court against his acquittal. Geelani’s supporters advised caution and self-restraint. Other friends advised him to return to normal life, begin teaching and resume research.
Many who advised caution were worried not only about Geelani’s personal safety but that the Kashmiris may draw wrong conclusions from his statement. Kuldip Nayar, one-time Emergency victim and a prominent voice of democratic India, reflects this opinion. Writing in The Indian Express on 4 November 2003, Nayar castigated Geelani: ‘For Geelani to mix the Kashmir question with the attack is to politicize a heinous crime… I hope Geelani’s statement does not become grist for the propaganda mills. A favourable ground for talks between Deputy Prime Minister L.K. Advani and the Hurriyat is being prepared.’
He added that Geelani’s ‘only claim to fame was the police case against him which it could not prove in the court.’ Such ‘democratic minded’ Indians hope that the people in Kashmir would see Geelani’s acquittal as a testimony of the democratic credentials of our country. They think that the Kashmiris will forget their history and bitter experience of the past decades only because a High Court acquitted an innocent Kashmiri against whom there was not an iota of evidence in the first place and who had been condemned to death by a POTA court.
It is undeniable that the two High Court judges who acquitted Geelani, Justice Usha Mehra and Pradeep Nandrajog, showed rare courage and integrity. The acquittal of Navjot was simpler because there is no constituency that could make political capital out of her release. But we need to take a closer look at the High Court judgement in order to analyze how far it helped open up space for future democratic struggles for fair trial of accused in cases of terrorism.
The judgement by Justice Pradeep Nandrajog raises many vital questions. The most important relates to the role of media trials. The judge has held that media trials do not vitiate the trial itself because, unlike with a lay jury, propaganda or adverse publicity does not influence professional judges. In this he seems to echo the Supreme Court judgement in the Zee News case. Therein, the defence lawyers for the Parliament accused had managed a stay from the High Court restraining the broadcasting of a Zee TV film entitled December 13. Though the film claimed to be based on the chargesheet, it in fact made allegations against Geelani that went far beyond the prosecution case. The Supreme Court, however, vacated the stay on grounds that judges could not be influenced. It failed to appreciate how such films are responsible for creating a climate of fear and mistrust. Today, even post acquittal, Geelani cannot get a house on rent. His children find it hard to lead normal lives.
Though Justice Nandrajog was bound by the Supreme Court judgement on the question of what effect media trials have on judges, there was also the question of police organizing media conferences. The judge made observations against the practice of allowing the media to interview the accused persons when they are in police custody under orders of the court. But neither did he lay down any guidelines, nor did he pass any strictures against the policemen who organized the press conference and forced Afzal to incriminate himself in full view of the national media. The judge did not even reprimand the senior officers who denied any knowledge of the press conference in the court, on oath.
The 392-page judgement contains many observations on the disturbing trends in police investigation. The judge asked whether there was a breach of statutory safeguards during investigation? If yes, the consequences thereof? After a detailed examination of the facts, the judge found that the ‘prosecution stood discredited qua the time of arrest of the accused, S.A.R. Geelani.’ He also found that the arrest memos had been forged. The police forged documents, lied on oath, failed to follow even basic rules of criminal procedure and violated the letter and spirit of the Indian Constitution. Despite all this, the Delhi High Court failed to pass any strictures against the police officers of the Special Branch.
Perhaps the weakest part of the judgement is that the judge did not make any adverse observations against the Designated Judge, S.N. Dhingra who showed his hostility and prejudice against the accused by routinely denying their counsel the right to cross-examine the prosecution witnesses. Further, he behaved like the prosecution by cross-examining defence witnesses and the accused when they gave their statements to the court.
At best the High Court has created only partial space for further struggles to protect people who are similarly framed. It does not restrain the media from irresponsible reporting, nor the police from using the media in the war against terrorism, unmindful that in the process the police acquire powers without being accountable. They seem to have the power to violate rules, regulations, procedures, laws and even the Constitution – with impunity. The media failed to point out that one of the officers in charge of the investigation is accused of being involved in false encounter deaths in Delhi and another is in Tihar jail on corruption charges. If such policemen have power of life and death over citizens, the future of our democracy is bleak indeed.
Even those who campaigned for Geelani’s acquittal are now hesitant to address the uncomfortable questions which have arisen in the course of the trial of the four accused of conspiring to attack the Parliament, questions which have a bearing on our future as a democratic country. We knew that the trial would raise such questions, which is what prompted us to form the All India Defence Committee for S.A.R. Geelani. We were aware of defending more than the civil liberties of an individual citizen. We were expressing our concern about the erosion of civil liberties in the name of national security and war against terrorism.
The acquittal has raised even more questions, but few seem to be willing to publicly debate them. It seems that we are satisfied that the Delhi High Court has redeemed our faith in the judicial process, that we should not expect anything more from this system. Rather, we should just celebrate the miracle and Geelani should get back to normal life.
Has our society become so dehumanized as to lose its capacity to feel moral outrage for a human being who has been wronged? I have watched Geelani right from the time he stepped out of the jail gates. He has not had a minute’s reprieve. The media has not stopped vilifying him. Even when he sent a rejoinder, at least one paper refused to publish it and an advertisement had to be inserted giving Geelani’s clarification. He is expected to step out from months of solitary confinement where he was denied access to books, walk into class and start teaching for three to four hours every day.
In addition he must look for a new house to rent and deal with the fear and insecurity afflicting his children. They had spent the past two years regularly visiting him in jail, saw him in handcuffs in the court, and they cannot forget the sight of their father at the police station on the night of 14 December 2001. True, never for a minute did they lose hope of his ultimate release. Perhaps children have an inherent belief in justice, in the ultimate victory of good over evil. They waited for the nightmare to end as suddenly as it had begun. But the nightmare has not ended. They do not know why their beloved Abu was wrongfully arrested and can never be sure that it might not happen again – to him or to someone else they love.
The High Court judgement will not restore the lost childhood of Geelani’s children; nor will it restore the faith of other Kashmiris in Indian democracy. As much as the judgement reflects the integrity of two judges, it also reflects the success of our campaign which proves that there is democratic space for struggle in our country. The struggle opened up spaces for us to expose the injustice in one particular incident. But how many innocent Kashmiris languishing in jail can expect such campaigns in their support? How many will be defended by lawyers of the calibre of Ram Jethmalani?
It would only be self-delusion to expect the Kashmiri people to be bowled over by Indian democracy merely because the judges acquitted one innocent Kashmiri after keeping him in death row for nearly a year. However, perhaps our campaign may persuade some Kashmiris that Indians are willing to fight against human rights violations even in the midst of the war against terrorism. But how many of us are willing to confront the real problem, the question of the right to self-determination of the Kashmiri people? Even Geelani’s mild statement that the aspirations of the Kashmiri people must be taken into account if we want a resolution to the conflict aroused so much hatred.
Of course we have a right to celebrate Geelani’s acquittal. It deserves to be celebrated for what it is: a successful struggle for justice in rather difficult times. But the struggle is far from complete, the task ahead is even more difficult than ensuring a fair trial for one individual. Our task is to create a political climate where all issues, including the demand for self-determination in Kashmir, can be fairly discussed. The struggle for a fair trial is a part of that struggle.
The state has not given up its attempts to convict Geelani. The media has not stopped its vilification campaign. It is true the Hindustan Times in its editorial of 31 October 2003 admitted: ‘When the Delhi Police announced that they had come across vital evidence beyond doubt Geelani was guilty, many including this paper, made the mistake of believing them.’ Nevertheless, many of the reports continue to portray Geelani as a guilty man who has escaped through some legal loophole. Why, even Kuldip Nayar thinks the acquittal is a result of the inability of the police to establish their case.
There is no media report that captures the really extraordinary feature of this case: that Geelani, from the very beginning, asked the court to put all the evidence on record. And the prosecution has refused to do so. First, there was the intercepted conversation between his younger brother and him on 14 December 2001. It was the main prosecution evidence against Geelani. The police informed the court that they had started tapping his phone from the night of December 13 to the afternoon of the next day. All the conversations were in a cassette marked C1. These included many conversations between him and other family members in Kashmir. Geelani asked the court on several occasions to put the entire cassette on record. However, the police only produced the 2.16-minute conversation between him and his brother on the afternoon of 14 December 2001.
In the High Court, Geelani filed an application requesting permission to explain each telephone conversation. The prosecution had placed the Airtel record of 521 calls made between October and December 2001. Geelani said the Sessions Court had denied him an opportunity to explain these calls when he made his statement to the court under section 313 of the Criminal Procedure Code. He was willing to do so during the appeal.
Second, Geelani asked the court to arrange a transcript of the conversation by someone conversant with the Kashmiri language. He even suggested that the court appoint an IAS or IPS officer. The Sessions Court refused to direct the prosecution to do so. To date the prosecution has not put on record a Kashmiri transcript of the conversation, even though it claimed that this was the main evidence against Geelani to establish his complicity in the conspiracy to attack the Parliament. Two expert witnesses produced by the defence, Sampat Prakash and Sanjay Kak, put the transcript and translation on record in the court.
Third, Geelani admitted the conversation even though the tape was inaudible. The Central Forensic Lab in Delhi returned a finding that it could not conduct a voice sample test since the tape was inaudible. And yet the prosecution witness, Rashid the vegetable vendor from Azad market, claimed to have deciphered it after hearing it a few times.
Fourth, the interception of the conversation was in violation of the procedures laid down under the Indian Telegraph Act and the POTA. Although Geelani’s lawyers did challenge the procedures, they did not make it their main defence. And at the High Court they did not even argue the point.
Fifth, the prosecution failed to produce Geelani’s brother as a witness. If the conversation showed complicity then clearly the younger brother knew of Geelani’s role in the conspiracy. The police told the court that on questioning the younger brother they found he was innocent. Consequently they did not bother to take down his formal statement under section 161 of the Criminal Procedure Code, even for the record.
The Delhi High Court has held: ‘Prosecution had relied upon the conversation between Geelani and his brother in the afternoon of 14th December 2001 and had contended that the talk was incriminating, in that it showed Geelani’s participation in the attack on Parliament House. We had, while discussing the taped conversation, even assuming the prosecution version to be correct, come to the conclusion that there was nothing which could incriminate Geelani as far as the conversation is concerned.’
Finally, the only other evidence against Geelani was his acquaintance with the co-accused. Geelani has never once attempted to deny this, admitting he knew them from well before the period of conspiracy. The Delhi High Court judgement stated that the record of telephone calls between him and his co-accused is the only other evidence: ‘We are, therefore, left with only one piece of evidence against S.A.R. Geelani being the record of telephone calls between him and the accused Mohd. Afzal and Shaukat. This circumstance, in our opinion, does not remotely, far less definitely and unerringly, point towards the guilt of the accused S.A.R. Geelani.’
There was no other evidence against S.A.R. Geelani. He was acquitted not because the prosecution could not produce evidence, but because there was no evidence to produce.
And so the inevitable question: Why was Geelani arrested? Why should the police want to frame an innocent man? Suddenly our usual skepticism about the police dissolves in the face of our suspicions about Kashmiri Muslims. Instead of asking why the Special Branch carried out such a shoddy investigation, we start doubting the innocence of a ‘blameless citizen’ who has been victimized by a ‘corrupt and communal’ police and a ‘prejudiced’ Designated Judge.
Let us examine the facts relating to the actual attack that have emerged in the course of the trial of the four accused in the Parliament attack case, facts which the media has refused to publish, facts that raise uncomfortable questions that must be answered if we want to protect Indian democracy.
At first the government told us that the attack was the handiwork of Lashkar-e-Toiba and Jaish-e-Mohammad and that the five attackers were Pakistanis. Our Home Minister announced in Parliament that they ‘looked Pakistanis’. However, in the course of the trial, not one of the prosecution’s 80 witnesses ever alleged that any of the four accused belonged to any terrorist organization. Even the Designated Court was hard put to find a way of convicting the accused of belonging to any terrorist organization. As for the five men who actually attacked the Parliament, the only ‘evidence’ that they were Pakistanis was that no Indian came forward to claim their bodies.
The main accused, Mohammad Afzal, is a self-confessed surrendered militant – a renegade in the eyes of militants. Besides, he is a surrendered militant of the JKLF, a group that has already laid down arms. Why would a Pakistan-based militant organization trust a renegade, that too of the JKLF, with such an important job? Especially when the man has been working in Delhi for the past ten years and his entire motivation seems to have been money.
Afzal has not denied being a part of the conspiracy to attack the Parliament. He said he brought one of the attackers, Mohammad, from the STF camp (Special Task Force). However, he also insisted that he did not know the other four attackers who were killed during the attack. If he can be sentenced to death on three counts on the basis of his own confession, why can we not believe the other part of his story recorded in the court under section 313 of the Criminal Procedure Code?
We must demand that the government table a full report on the facts relating to the attack on Parliament. We have a right to know who actually attacked our Parliament. Why have we not made this demand? Out of a sense of nationalism? Are matters of national security best left to the state, no matter what its character? Do we seriously believe that this government can bring about a lasting solution to the Kashmir question if only Geelani keeps quiet and we refuse to raise awkward questions?
When we began our struggle for a fair trial for Geelani we were fighting not for an individual but for basic democratic values and principles. By the time Geelani was acquitted, many were convinced that it was also a fight for him as an individual. As one of his colleagues at Zakir Hussain College commented, ‘He has been worth fighting for.’ He has shown exemplary courage, both during his trial and after his release. He relied entirely on our commitment to get him acquitted, a trust based on shared concerns and values. If we ask him to maintain silence, we only betray our country and ourselves.
It is only when we have real democracy in India can we expect others to respect us. We should remember Kalhan’s warning in the Rajtarangni, in the 12th century: Such is Kashmir, the country that may be conquered by the force of spiritual merit but not by armed force.