Trials of Truth

by Pinky Anand

  When Lashkar-e-Taiba’s (LeT) plan started to materialize in 2007, Headley was considered ideal to complete the reconnaissance missions as he was a foreigner and wouldn’t attract too much unwanted attention. With the Rs 15 lakh that was given to him, Headley opened a front office in Mumbai, ostensibly, of an immigration business. Headley had previously used such offices to traffic heroin. In 2007 and 2008, Headley came to Mumbai five times to hunt for locations where the terrorists would carry out the multipronged attack. Despite such direct involvement in the conspiracy, his conviction by American courts was a burdensome affair.

  Likewise, in the context of the 1993 Mumbai blasts, Tiger Memon was one of the prime accused. He smuggled weapons into the country via the sea route and also planned the attack. However, he was never physically caught by the enforcement authorities. The kingpin in most cases is only identified after tracing a long trail of events and evidence. This made his capture next to impossible.

  Laws have to be formulated in a manner which will enable them to, despite a lack of direct evidence, tackle issues that disturb the very foundation of a country. It is necessary for them to take a perspective that perceives the social implications of the offence and values the disposition of the world to eliminate the wrongs against humanity, irrespective of all odds.

  The courts too have to deal with the issue holistically. For instance, many a time, the potential reporting of terrorist acts instils fear in the minds of the general population. Live reporting can even be counterproductive; the 26/11 Mumbai blasts are a case in point, wherein broadcasting of the events made it difficult for task forces to capture the terrorists. It enabled their handlers sitting across the border to guide them, step by step, pursuant to the knowledge gained after watching the news footage. Abu Jundal, the Hindi tutor of the terrorists, told his interrogators that the careless live reporting of the events by certain sections of the Indian media was an advantage to the terrorists and helped foil the attempts of the National Security Guard at rescue. The Supreme Court, in such a situation, rightly pulled up the media for its lackadaisical attitude and affirmed that any effort to defend the behaviour of the TV channels by citing the right to freedom of speech and expression would be incorrect and unacceptable.

  A colonial hangover of criminal jurisprudence is that confessions made before a police officer are inadmissible under the Indian Evidence Act, 1872. As evidence against terrorists is hardly ever gathered easily, confessions are integral to these cases. Therefore, antiterror laws, generally, depending on the backdrop of the type of crime, hold such confessions admissible under the Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA), and the Prevention of Terrorism Act, 2002 (POTA). To refute the veracity of the statement, the accused has to prove that the confession has been obtained from him or her by inducement or threat by a person in authority. The burden of proof is thus shifted.

  Another striking feature of the law in our country is that the nature of bail is intrinsically different in the case of terrorist crimes. An accused terrorist has no inherent right of bail. The Unlawful Activities Prevention Act, 1968, allows detention without filing of a charge sheet for up to 180 days without any provision of bail. Even otherwise, accused terrorists are most unlikely to get bail thereafter, on account of the nature of their crime.

  Global Decimation

  The attacks on the World Trade Centre in New York on 11 September 2001—or ‘9/11’—were the first major terrorist attacks that caught the attention of the entire world due to their sheer massive scale and magnitude.

  In the immediate aftermath of the attacks, al-Qaeda leadership posted videos via Al Jazeera, a Qatar-based broadcasting channel. The channel edited and selected only a few of the videos before broadcasting them. An unhappy al-Qaeda then switched to uploading videos themselves on the Internet. Since then, these organizations have developed their own production houses, producing and disseminating content with high production value.

  Pursuant to 9/11, the world has been divided into, according to the United States, good and evil. This distinction brings forth interventions—even pre-emptive in nature—in the Middle East, the hotbed of terrorism.

  The power game is much bigger than just the al-Qaeda. ISIS, now a global threat, aims to create a Sunni Muslim state. Having claimed responsibility for the suicide bombing in Paris in 2015, the Charlie Hebdo shooting in 2015 and the recent Manchester concert attack of May 2017, among many others, its radical views now very seriously threaten the current state structure and boundaries.

  In India, too, the situation is not very different. The invasive attack by members of the Jaish-e-Mohammed at the Pathankot air force base in 2016 took advantage of the porous borders of Punjab, and was carried out with the objective of disrupting peace talks between India and Pakistan while simultaneously destroying a military airbase. India claims that an attack of this magnitude could not have taken place without the knowledge of Pakistan’s intelligence agency, the Inter-Services Intelligence, or ISI, and the Pakistan government.

  In such a situation, it is encouraging that the heads of both countries are working hand in hand to defeat the terrorists’ motives. It was reported in news outlets that Prime Minister Narendra Modi cautiously commented, ‘Today, enemies of humanity who can’t see India progress tried to strike at our strategic area, a prominent airbase at Pathankot.’ The Pakistani government condemned the attack in an unprecedented move and arrested the leader of Jaish-e-Mohammed in an effort to show its seriousness about cooperating with India. Such collaboration and harmony is the cornerstone of a terrorism-free world.

  With time, terrorism has become a commonplace and global phenomenon. People from all strata of society—the poor, rich, educated and illiterate—are affected or participating in it. Educated people becoming victims of propaganda shows the alarming proportions the problem has assumed. Engineers and college students adopting radical paths after being subjected to the lure of ISIS propaganda techniques are proof that some people’s perception of the terror outfit’s fundamentalist acts is changing. In such a scenario, there is no denying that the situation is grave and demands immediate global attention and collective cooperation.

  Pointed Guns at Parliament

  A gory case in point is the Afzal Guru—or Parliament attack—case. The national capital witnessed an unprecedented attack on the afternoon of 13 December 2001. Five heavily armed men with massive firepower at their disposal barged into Parliament while it was in session, in a car fitted with a bomb, covered in home-ministry and Parliament security labels. Inflicting numerous casualties en route, the group crashed their vehicle into the then vice president Krishan Kant’s official vehicle and began firing indiscriminately. As recorded by the Delhi High Court, ‘The firepower was awesome. Enough to engage a battalion. Had the terrorists succeeded, the entire building with all inside would have perished. The foundation of the country would have shaken. The act was clearly an act of waging war against the Government of India.’

  The Indian security personnel retaliated, leading to a fierce thirty-minute-long gun battle. Eight security personnel and a gardener were martyred in the attacks. However, all the members of Parliament escaped unhurt. Had the men succeeded in the attack, the iconic Parliament House would have been reduced to ashes and scores of lives would have been lost.

  Two days after the incident, the special cell of the Delhi police found clues from the call detail records of the mobile phones and from the registration of the vehicle used in the attack. These led to the arrest of Afzal Guru, an unassuming commission agent in the fruit business and later an area manager for a pharmaceutical firm. Three others, namely, Shaukat Hussain Guru (Afzal’s cousin), Shaukat’s wife, Afsan Guru, aka Navjot Sandhu, and S.A.R. Geelani, a lecturer of Arabic at Delhi University, were also arrested. A seventeen-day-long extensive investigation proved the involvement of members of the banned militant organization Jaish-e-Mohammed.

  This case is also relevant from the perspective of media interference
in judicial trials. Afzal raised concerns over not getting a fair trial as the media had created a public furore and already declared him a criminal, but his complaint fell on deaf ears. Amidst such allegations of a ‘trial by media’, the special court, presided over by Justice S.N. Dhingra, concluded the trial at lightning speed. In a short span of six months, over 300 documents, eighty witnesses for the prosecution and ten witnesses on behalf of the accused, S.A.R. Geelani, were examined and the sentence pronounced. Afzal Guru, S.A.R. Geelani and Shaukat Hussain Guru were sentenced to death on 18 December 2002.

  The trial was marred by reports of evidence tampering. The two most important pieces of evidence against Guru—a cell phone and a laptop confiscated at the time of arrest—were not sealed. Evidence, when collected, is required to be sealed at the site from where it is obtained, sent for analysis and ultimately stored. In this case, the laptop was accessed after the arrest. However, it was clarified later that it was operated by independent agencies and there was nothing to show that the evidence had been tampered with.

  The laptop contained incriminating evidence, such as fake home-ministry passes. The Supreme Court relied on this evidence and remarked, ‘It is established from the evidence that the said laptop was used for the preparation of the I-cards, and the I-cards found at the spot on the dead bodies and the MHA [Ministry of Home Affairs] sticker found on the car were those produced from the same laptop. It admits of no doubt that the laptop, which must have been with the deceased terrorist Mohammad and others, came into the custody of Afzal (and Shaukat) soon after the incident on December 13 and such possession has not been accounted for.’

  Afzal’s confession statement to the police was also questioned. The police handcuffed Afzal and called the media to broadcast his ‘confession’ to the world. Such a confession is, however, inadmissible as evidence in the court of law. The assistant commissioner of police, Rajbir Singh, in charge of the case, in his testimony, stated, ‘I allowed the media to interview the accused Afzal in my office under the consent of my senior officer, namely the deputy commissioner of police [DCP].’

  Though access to information is essential for a healthy democracy, when such access invades the judicial process, it attacks the core of the democratic process. The increased invasion of the fourth estate may at times hinder the functioning of the judiciary. However, the high court dismissed the contention that the broadcast of the statement caused prejudice in the minds of judges and the general public. The court noted, ‘There is nothing on record that the atmosphere was not free from threat or inducement.’ Relying on the Supreme Court judgment of R. Balakrishna Pillai v. State of Kerala,1 which held that judges do not get influenced by propaganda or adverse publicity, the high court opined that judges are trained, skilled and have sufficient experience to shut their minds to hearsay or influence from media reports.

  It is interesting to note that the trial court admitted the confession statement. However, the Supreme Court didn’t give any weight to the same as procedural safeguards were not complied with and proceeded on the basis of other evidence. The government passed the Prevention of Terrorism Ordinance (POTO) (later enacted by Parliament as POTA) on 19 December, i.e., after the 13 December attack, and it was applied to this case on a retrospective basis. The POTO/POTA makes confessions made before police officers admissible, but with some safeguards. One of those is the right to counsel, which was denied to Afzal. The second is the right to adequate time for reflection before signing the statement. This was also, in the Supreme Court’s opinion, not provided. Afzal took seven months to refute and then retract his statement. However, the Supreme Court opined, ‘We cannot hold that there was abnormal delay in disowning the confession, the effect of which would be to impart credibility to the confessional statement.’

  Tactics and Finances: Running the Terrorism Business

  The aim of terrorism today has become to grab and hold the world’s attention while making use of psychological tactics to instil fear and threaten international order. We, in our anxiousness and fear, tend to contribute to this by exaggerating their power and strength in our minds. The acts of terrorists are consciously orchestrated so that media houses—print, television and social—publicize the event.

  While a terrorist organization must have followers and a motivational ideology, it must also have a basic structure to feed itself and its recruiters. Adequate finances ensure that its recruiters and their families are cared for and have enough equipment, arms and ammunition to further their cause. Terrorist organizations spend substantial amounts to sustain their influence and govern their troops. According to a report by the Asian Development Bank, maintenance and administration expenses constitute about 90 per cent of al-Qaeda’s total income, whereas only 10 per cent is spent on operational purposes.

  Moving physical cash is a logistical nightmare for these organizations. $1 million (about Rs 7 crore) in $100 bills weighs about 10 kg. To overcome this problem, ingenious ways of transportation are often adopted. After the 9/11 attacks, US federal agents received a tip-off that a Yemeni sheikh was raising money in Brooklyn for al-Qaeda. He had supposedly bragged in recorded chats of having raised $20 million for Osama bin Laden. Allegedly, some of this money was raised in cash donations. The sheikh shipped the bulk cash in cargo vessels. Federal agents later arrested two men at John F. Kennedy Airport in New York in October 2001 and found $140,000 hidden in cardboard boxes alongside jars of honey.

  In the Mumbai terror attacks, the Intelligence Bureau concluded that the LeT had spent Rs 1,17,37,820 on the attacks. Such huge amounts of money come from money laundering, arms proliferation, smuggling of narcotics, and so on. On the other hand, kidnappings, ransom, looting and marauding along with extortion are just some of the ways that ISIS has adopted to supplement their income from oil wells. They have even begun to tax people for money. Many families even choose to trade their children for money. Born into a humble family, with a snack-cart-owner father and labourer brother, Ajmal Kasab couldn’t get much of an education and was a class-four dropout. He spoke a smattering of rough Hindi and no English. Though his father denies it, it is alleged that Kasab’s father sold him to the LeT to support his family. Various sources put the amount paid by the terror group for his participation in the attacks at between Rs 1–2.5 lakh. There are also reports of him living in Okara village of the Punjab province in Pakistan six months prior to the attack. It is alleged by villagers that he took his mother’s blessings before he left for his mission to India.

  Mental and physical training also plays a key role in the commission of terrorist offences. In the context of the 26/11 incident, Kasab and the other members of his group received training from the LeT in using arms and ammunition, marine warfare and marine navigation in Muzaffarabad in Kashmir.

  The young recruits were given psychological training to strengthen their minds and imbibe radical ideologies, and physical combat training to strengthen their bodies. Out of this group of twenty-four men, ten were chosen for the Mumbai mission. The extent of their mental training is seen from the fact that these terrorists are unaffected by their actions. The Supreme Court bench too expressed concern at Kasab’s remorselessness. Kasab’s young age, as highlighted by the amicus curiae to the case, senior advocate Raju Ramachandran, did not affect the decision of the bench, given the nature of the crime. In this regard the bench observed that the ‘only mitigating factor is the appellant’s young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation’.

  Outraged by the attacks, many lawyers initially refused to represent Kasab, thereby delaying his trial. The Bombay Bar Association passed a resolution that none of its members would represent him. Though there was enough prima facie evidence, we, a democratic nation, upheld the values of equity and justice we hold so dear and gave Kasab a proper judicial trial.

  He was charged with murder, waging war against India and oth
er ancillary charges in an 11,000-page charge sheet filed by the Mumbai police. His trial began in May 2009. In an attempt to throw the authorities off their game, Kasab claimed to be only seventeen years old on the first day of the trial and requested to be tried in a juvenile court. Had this request been entertained, Kasab could have succeeded in being awarded a much more lenient punishment.

  Initially he pleaded not guilty before the trial court, but in a turn of events in July 2009, he admitted to his guilt. He emphasized, ‘If I am hanged for this, I am not bothered. I don’t want any mercy from the court.’ Affording him a fair trial, the judge opined that the trial should continue despite his admission of guilt. Alleging that he had been tortured by the Mumbai police, Kasab later retracted his confession statements. He claimed that he had been unjustly arrested and was framed and picked up by the Mumbai police from a beach. He also claimed that he had come to the city to pursue his education and had never seen an AK-47 rifle.

  In March 2010, the trial concluded and Kasab was found guilty of all eighty-six charges and sentenced to death, which was confirmed by the Bombay High Court. The high court recorded: ‘[The confession statement] will show that these terrorists were proceeding via Chowpatty towards Malabar Hill, which was their final target . . . Kasab waged a war against the Government of India, pursuant to a conspiracy which was hatched in Pakistan . . . There is hardly any scope for a person like Kasab to be rehabilitated or reformed.’

  In the appeal, the Supreme Court held:

  In short, this is a case of terrorist attack from across the border. It has a magnitude of unprecedented enormity on all scales. The conspiracy behind the attack was as deep and large as it was vicious. The preparation and training for the execution was as thorough as the execution was ruthless . . . This case has the element of conspiracy as no other case. The appellant was part of a conspiracy hatched across the border to wage war against the Government of India, and lethal arms and explosives were collected with the intention of waging war against the Government of India.