Unanswered questions are the remains of the day

After the December 13, 2001 terrorist attack on Parliament, the government said it was an attack on India’s sovereignty, and those involved would be shown no mercy.

On December 16 — barely three days after the attack — the police presented Mohammed Afzal, his cousin Shaukat Hussain, and S.A.R. Geelani to the media along with a stunningly detailed brief that was in sum the prosecution’s case.

Within six months, Mohammed Afzal and the others, including Shaukat’s pregnant wife Afsan, went on trial on charges of conspiracy to commit acts of terror and waging war against the state.

Anyone conversant with how this case was prosecuted will admit that where Mohammed Afzal was concerned there was a presumption of guilt. He had nothing that amounted to legal representation. The lawyer first appointed to represent him admitted as evidence — without consulting him — documents that were used against him in court. She withdrew from the case prior to the trial to represent another accused.

While the three others were represented by some of India’s sharpest legal brains, Mohammed Afzal’s case was mediated by an amicus curiae who, far from fairly representing his case, was at best inarticulate and at worst actively hostile to him. This left Afzal, a man with no knowledge of the law, to make interventions and cross-examine witnesses himself. At the end of this process, he was sentenced to death.

In the High Court, the lawyer who claimed to represent Afzal entered a plea for death by lethal injection should the death sentence be confirmed, something that Afzal, expecting to live, had never discussed. Despite all this, the Supreme Court, reaffirming the death sentence in 2004, asserted that he was adequately represented.

Of the three accused of conspiring with Afzal, Afsan Guru and S.A.R. Geelani were acquitted by the High Court within a year, and Shaukat Hussain was sentenced to 10 years on the lesser charge of concealing knowledge of a conspiracy. He was released early for good behaviour.

But Mohammed Afzal was killed. And those who decided to kill him failed to ask questions that needed to be asked, questions that still need answers.The trial court knew on record from Mohammed Afzal that he had been a member of the JKLF and surrendered in the early 1990s. As a surrendered militant, he marked regular attendance at a camp maintained by the shadowy Special Task Force in Kashmir. He had been detained at the camp on more than one occasion. In short, he was a man that the security forces in Kashmir knew intimately. He also said that two key persons connected to the case — Mohammed (who was killed in the Parliament attack) and Tariq (whom the state claims has vanished) — were first introduced to him at the STF camp. A question that was never asked, and therefore never answered, was how was it that the security forces did not know of Afzal’s movements, associations and plans, given that they kept close tabs on him, picking him and holding him in illegal custody whenever they chose.

During the trial, the police presented contradictory versions of the arrests. Documents produced as evidence in court showed that the Srinagar police had recorded the time of Afzal’s arrest as several hours in advance of when the Delhi police say they had information about his whereabouts and had messaged Kashmir. The Public Prosecutor claimed, outside court, that the Srinagar police also had independent information from India’s central intelligence agencies. Why this was never raised in court is another question that should be answered. Was the Public Prosecutor lying or was there information about the attack that the state withheld, while pursuing its case against Mohammed Afzal?

There were no witnesses against Mohammed Afzal. Those said to be his co-conspirators were acquitted (Geelani, Shaukat and Afsan), died (Mohammed) or vanished (Tariq). Indeed, a close examination of the case would suggest that he was a witness against himself. He made confessions and willingly led the police to the places and people he had visited. The only other evidence against him are telephone instruments and SIM cards that the police claim to have recovered from him at the time of his arrest, different depending on which police jurisdiction was involved. Besides, one SIM card had been in use before it was sold to him. How different courts interpreted this makes fascinating reading and raises questions about why the case for Afzal Guru’s death was pursued with so much zeal.

On Saturday morning, a man was hanged who was not guilty beyond reasonable doubt. Mohammed Afzal died without his case ever being heard properly, turning on its head the idea that the rule of law, due process and justice are embedded in the Indian system.

(Anjali Mody is a writer. In 2002, as a correspondent for The Hindu, she covered the Parliament attack case trial.)