The vanity of 13/12 ‘truth-telling’

“Everyone is entitled to their own opinions”, the American politician Daniel Patrick Moynihan — among others — is credited with having said, “but not to his own facts.”

Muhammad Afzal Guru’s execution on Saturday morning — a grim spectacle, where the Indian government disgraced itself by denying his family a last meeting, or a dignified burial — has set off perhaps the most serious debate on the death penalty India has ever seen. Legal experts have cast no small doubt on whether Guru received a fair trial; whether his guilt was proved; whether his death penalty was legitimate. These debates engaged some of India’s finest legal minds for months, both on the side of the state and defence. The Supreme Court’s word is not, and ought not to be, the final word. Indeed, the deep ambiguities that surround Guru’s case are in themselves compelling argument to rethink the death penalty.

In her article in The Hindu, however, Arundhati Roy makes claims that far transcend this debate. In her reading of events, Guru is “a victim of torture, blackmail, extortion. In the larger scheme of things he was a nobody. Anyone who was really interested in solving the mystery of the Parliament Attack would have followed the dense trail of evidence that was on offer. No one did, thereby ensuring that the real authors of conspiracy will remain unidentified and uninvestigated”. Political parties and the media, she asserted, “all colluded to do something terribly wrong”.

Back in 2006, in her introduction to a collection of essays on the 13/12 trial, Ms Roy insisted Guru had been “plucked out of thin air” and transplanted into the centre of the ‘conspiracy’ as its kingpin. She had no doubt the investigation and trial threw up evidence of state “complicity, collusion, involvement”.

Errors of the first kind

Is there actual evidence that 13/12 is a macabre plot, in which the criminal justice system and judiciary are implicated? Ms Roy builds her case around what can, at best, be described as parts of the evidence, cherry-picked for polemical effect. For example, Ms Roy raises questions over how police investigators chose to apprehend Guru in the first place. “They said”, Ms Roy notes, “that S.A.R. Geelani led them to him. But the court records show that the message to arrest Afzal went out before they picked up Geelani”. In Ms Roy’s view, this lends weight to the claim that Guru was framed.

In fact, a quite different conclusion can be arrived at. In paragraph 78 of his judgment, Additional Sessions judge S.N. Dhingra arrived at the conclusion that Mr. Geelani and Afsan Guru were probably taken into custody by the police after 8 p.m. on December 14, 2001 — some 14 hours before their arrest was legally recorded. Put bluntly, Mr. Geelani and Ms Afsan were in illegal custody when the Delhi Police sent its message seeking Guru. This illegal detention was criminal — but doesn’t suggest the existence of a sinister mystery over the timing of Guru’s arrest.

Ms Roy has pointed to several other potential flaws in the evidence the prosecution used during the trial. She notes, for example, that a laptop seized from Guru was not properly sealed. However, Ms Roy omits to record that the Supreme Court discussed this issue at some length, concluding that a defence expert witness’ testimony did not “substantiate the point of criticism about the possible tampering of laptop nor does it make a dent on the findings of the experts examined by the prosecution”.

This may not be a conclusion Ms Roy agrees with; the defence most certainly did not. Yet,she cites no evidence, compelling or otherwise, to dispute the judges’ appraisal of expert testimony.

Less excusable is Ms Roy’s censoring of facts that sit ill with her account. She asserts, for example, that Guru lacked legal representation “at the most crucial stage of a criminal case”. However, she omits mentioning that Supreme Court judges P. Venkatarama Reddi and P.P. Naolekar heard extensive arguments on the quality of Guru’s legal representation in the trial court — and concluded that they found “no substance in this contention”. The judges examined precisely what proceedings took place during every period when Guru was unrepresented, and concluded that they did not include substantive, adverse proceedings.

This judicial determination will — and ought to be — subjected to continued critical scrutiny but there is nothing to show the judicial system was blind to Guru’s legal rights.

Ms Roy’s account in The Hindu of suspicions about the investigation isn’t, understandably, exhaustive. Guru, for example, claimed he had been instructed to carry out the plot by a Jammu and Kashmir Police officer, Davinder Singh. His supporters argue the police officer was never investigated. Prosecutors, however, say there was nothing in the evidence they found — which, after all, stood repeated judicial scrutiny — on an allegation they believe was intended to mislead.

Error of the second kind

The larger assertions Ms Roy makes, based on her selective reading of evidence, are even less grounded in the real world. “Based only on Afzal’s confession”, she claims, “the Government of India recalled its Ambassador from Pakistan and mobilised half a million soldiers to the Pakistan border”.

In fact, there’s a fairly persuasive body of evidence that tells us just who carried out the attack — and why. In testimony to Pakistan’s Senate in 2003, former Inter-Services Intelligence chief Lieutenant-General Javed Ashraf Qazi called on his nation to “not be afraid of admitting that the Jaish was involved in the deaths of thousands of innocent Kashmiris, bombing the Indian Parliament, Daniel Pearl’s murder and attempts on President Musharraf’s life”.

Pakistani scholar Muhammad Amir Rana, in a 2004 book, noted that the Jaish-e-Muhammad had initially taken responsibility for the operation but later retracted “under pressure from various agencies”. Independent journalists like Amir Mir have held the Jaish responsible for the operation; scholars like Peter Chalk and C. Christine Fair have arrived at much the same conclusion.

Few of these facts were unknown to anyone who followed the Jaish-e-Muhammad at the time — least of all to governments either in India or the rest of the world.

Grave truth

Precisely how easy it is to deduce conspiracy from incomplete evidence ought to be clear from the case of Mohammad Yasin Fateh Mohammad, who, Ms Roy noted in her essay, was identified by Thane’s then-Police Commissioner S.M. Shangari as one of the Parliament attackers. Mohammad had earlier been handed over to the J&K Police by the Thane Police, Ms Roy noted.

Had she bothered to consult public documents, a somewhat less categorical reading of Mr. Shangari’s testimony might have suggested itself. Mohammad, a resident of Allahabad — a small town that lies between Rahim Yar Khan and Bahawalpur, in Pakistan’s Punjab — was shot dead by the police while allegedly attempting to escape from custody. So were two other men held with him — 22-year-old Faislabad resident Mohammad Tayyab Niaz and 24-year-old Mohammad Afzal Shahid. These killings were, quite possibly, extrajudicial executions but they took place between December 19, 2000 and February 13, 2001. Mohammad was in a grave in January, 2001, 11 months before 13/12.

Ms Roy is right on one key issue: we are still far from knowing the full truth of 13/12. It is likely that many of the unanswered questions might resolve themselves if Pakistan were ever to arrest Jaish-e-Muhammad chief Maulana Masood Azhar — currently living, in some luxury, in his Bahawalpur home. Nothing in recent experience — witness the 26/11 case — suggests this will happen.

Perhaps the most damaging vanity of journalists, as well as political pamphleteers of a certain kind, is the certainty that there is something called the “full truth”. There is a reason, after all, that each year’s crop of historical journals publish appraisals of everything from 17th century riots to the Vietnam War. The ground beneath Ms Roy’s seismic claims, however, is shaky — to say the least.