What Does Mohammad Afzal Know?

19 October, 2006

Prof. A. P. J. Abdul Kalam
Hon’ble President of India
Rashtrapati Bhawan
New Delhi-110001

Respected Sir, 

After the High Court judgment of October 2003 in the Parliament attack case, many individuals comprising The Committee for Inquiry on December 13 felt that very serious questions remained unanswered. Thus, after studying the judgment and the relevant documents carefully, the Committee was formed in March 2005 to bring out the truth, ensure justice and protect the rights of the accused in the parliament attack case. We hold that the judgment of the Supreme Court in August 2005 has vindicated many of the concerns raised by us. 

The Committee strongly condemns terrorist acts by fundamentalist outfits; these are serious attacks on civil society and its democratic institutions. However, the Committee agrees with Mr. Kofi Annan that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism. The task is not easy, but it must be undertaken for democracy to function. 

Since its inception, our Committee has been following the Parliament attack case with diligence. It released a book on the topic, December 13: Terror over Democracy, written by one of its members. A copy of the book is enclosed. We have also released press statements, have made several appeals to you and the National Human Rights Commission on a variety of grave concerns that arise from a close study of the case. After the Supreme Court judgment we also appealed to the members of Parliament, with supporting documents, to institute a Parliamentary inquiry into the entire episode. We are enclosing some of the relevant representations, documents and more recent literature for your kind perusal. 

In the light of our studies, we strongly object to the decision by the Sessions Court that Mohd. Afzal, accused in the Parliament attack case, is to be hanged on 20 October 2006. The hanging will not only be a travesty of justice, it will have far-reaching consequences for peace, secular fabric of the country and the ability to address the menacing problem of terrorism. Our objections are as follows. 

(A) As to the capital punishment given to Mohd. Afzal by the Supreme Court of India, we wish to make the following observations: 

1. The Court did not find him to be a member of any terrorist organization. In fact, he surrendered to the Border Security Force in Kashmir in 1993 and, as noted by the Courts, he had been in regular contact with the security agencies since. 

2. Mohd. Afzal did not take part in the attack on the Parliament of India. Since the Court set aside his confession obtained by the police under POTA as unreliable, the story of conspiracy described therein and relied upon by the High Court does not apply to him. Therefore, even if the criterion of rarest of rare cases applied to the actual attackers and the mastermind(s) of the operation whoever they are, it does not apply to Mohd. Afzal.

3. Mohd. Afzal had virtually no legal defence in the trial court. A junior lawyer was appointed amicus by the trial court against the wishes of Mohd. Afzal. The lawyer neither engaged in any meaningful cross-examination nor produced any witnesses in support of his client.

(B) As to whether Mohd. Afzal is guilty of the charges, we wish to point out that the judgment of the Supreme Court was based entirely on circumstantial evidence produced by the Special Cell of the Delhi Police. We note the following about this agency:

1. As noted, the Supreme Court set aside Mohd. Afzal’s confession obtained by the Cell. There is clear indication in the judgment that the confession was secured by force.

2 Earlier, the High Court had observed that the Cell had fabricated crucial documents and had kept people in illegal confinement to force them to sign papers.

3. As various human rights organizations and citizen’s groups have repeatedly reported to you and the National Human Rights Commission, the Cell is notorious for illegal arrests and false encounters.

We find it to be a travesty of justice that a person is found guilty and awarded the capital punishment solely on the basis of evidence produced by this investigating agency. 

(C) Our understanding of the Presidential powers under Article 72 of the Constitution of India is that, apart from examining the legal soundness of the judgment, the President of India is empowered to examine extra-judicial circumstances that might have adversely influenced the judicial proceedings, and over which the judicial proceedings have no control. This aspect is fully argued in the enclosed article in Economic and Political Weekly (October 7 2006). 

To take one example out of many, the Supreme Court had justly set aside the confessional statement of Mohammad Afzal as unreliable. Once the Court set it aside, it no longer formed evidence against Mohammad Afzal. However, the Court did not and can not inquire into the extra-judicial significance of its act. 

As we have repeatedly pointed out, the confessional statement contained the only story of the conspiracy and the planning to attack the Parliament. This story has been widely publicized for over four years as the truth by the media and the lower courts. Mohammad Afzal was made to tell this story in front of television on 20 December 2001. Subsequently, a film was made by Zee TV based on this story. Since the government did not produce any other evidence, we may presume that this story also formed the basis of the war-effort during 2001-2. Since the Supreme Court set aside the confessional statement, the entire story falls apart. 

Who then masterminded the attack on Parliament? On what basis was the country taken close to a nuclear war? Who is responsible for this massive fabrication? According to the Supreme Court, just six persons are involved: the five attackers, and Mohammad Afzal. Since the attackers died on the spot, Mohammad Afzal is the only living witness to the episode, according to the Court. What does Mohammad Afzal know? Understandably, the Court was not assigned the task of answering these questions. However, an examination of these issues has direct bearing on the post-judicial review of the case. Under Article 72 the President of India is empowered to initiate such examination. 

(D) The Parliament attack case is a test case for the functioning of civil institutions of India. Given the series of omissions and irregularities listed above, there is a genuine grievance that justice has not been meted out in this case. The hanging of Mohd. Afzal will only help perpetuate the grievance and further polarize communities. Needless to say, it is likely to affect the peace process in Kashmir so earnestly undertaken by thegovernment. Further, given the gravity of the brutal attack on Indian Parliament and that the country was taken very near to a nuclear conflict with Pakistan, the people of India have a right to know what exactly happened, who were the masterminds, how the attack was planned and the security breached.
We, therefore, appeal to you to not only set aside the punishment given to Mohd. Afzal but also to facilitate a Parliamentary inquiry into the entire episode.

With regards 

Ali Javed, Reader, Delhi University 
Tripta Wahi, Reader, Delhi University

Convenors 

Enclosures: 
Copy of December 13: Terror over Democracy
Copy of appeal to the Members of Parliament with supporting documents
Copy of earlier petition to the President on the functioning of the Special Cell, Delhi Police
Copy of booklet containing letters from Mohammad Afzal
Copy of article "Should Mohammad Afzal Die?", EPW, 17 September, 2005
Copy of article "Last Chance to Know What Really Happened", EPW, 7 October, 2005