If BJP spokesman V K Malhotra had his way, "action" would be taken under the Prevention of Terrorism Act (POTA) against all those who protest the death sentence just awarded to three of the four accused in the Parliament House attack case. On December 20, Malhotra said: "It is an insult to human rights to protest against those found guilty. [They] do not deserve any sympathy... Human rights are only for human beings, not for terrorists". Those who question the fairness of the judgment aid and abet terrorism so seriously that they too must be punished! This logic is, to say the least, extraordinary.
There have been even more hysterical reactions to the verdict of Special Judge S N Dhingra from the Vishwa Hindu Parishad, Bajrang Dal and Shiv Sena, who celebrated the judgment by bursting firecrackers outside the courtroom. These people clearly think that human rights are some kind of disease, purveyed by a narrow lobby of mentally deranged individuals who are profoundly unconcerned about national security or terrorism's innocent victims.
Nothing could be further from the truth. Human rights are universal, indispensable and irreducible. They apply to everybody -- ordinary citizens, rich, poor, soldiers, police, prisoners, even those accused of terrorism. Nobody, but nobody, can be deprived of his/her life or freedom of expression, conscience or movement except by due process of law and without fair trial. Human rights are about the integrity and dignity of the individual, the core-unit of modern democracy. They are not bestowed upon him/her. They are inherent, intrinsic to human beings. Without them, the entire political system would lose its legitimacy and the nation its meaning.
Human rights are the citizen's sole protection against arbitrary, brute power, and state or private tyranny. Only the powerful can afford to ignore them. Violating them in the name of "fighting terrorism" is to create new injustices. In fact, defending them becomes all the more vital when extraordinary events occur, like a communal carnage, war or terrorist attack. Security concerns cannot be allowed to override respect for human rights. The litmus test of how civilised a society is lies in how maturely, wisely and justly it defends human rights, while punishing wrong-doing.
By this criterion, the judgment in India's first-ever case under POTA is deeply flawed. It is dismaying in the first place that Mr Dhingra pronounced the harshest possible punishment, death, upon S A R Geelani, Shaukat Hussain Guru and Mohammad Afzal -- without establishing their direct responsibility for perpetrating the ghastly act of December 13. Indeed, he held that those who hatch a conspiracy against the state are as guilty as those who actually commit the crime. It is equally distressing that the judge reached his verdict through questionable procedures and on evidence which is open to question and full of holes. This judgment will be seen the world over, and in India, not as proof of the fairness of POTA, but of its excesses, combined with a growing national security obsession. It will make POTA more, not less, controversial.
None of the four brought to trial was convicted under POTA for being a member of a terrorist organisation or for actually participating in an armed attack. They were accused of aiding and abetting terrorist acts in various degrees. Even on the evidence cited by the judge himself, Geelani was peripheral to the conspiracy, and thus less culpable than Guru and Afzal. Yet, all three were sentenced to death. Afsan Guru was given five years for concealment of information regarding a conspiracy to "wage war" against the state. This is tantamount to punishing her for being married to an accused -- although the husband-wife relationship is a "privileged" one, like the lawyer-client's, and neither can be expected to inform on the other. The verdict is not only sweeping. It's flawed on other counts too:
■ It violates an explicit Delhi High Court ruling against admitting telephone call intercepts and records as evidence under POTA. These were proved by the defence to be unreliable and unauthorised. Mr Dhingra overruled that order by questioning the authority of a high court single judge to hear an appeal. But this was not such an appeal; no appeals are permitted against interlocutory orders in POTA. The defence had invoked the inherent powers of a high court to ensure a fair trial. This is not a technical or procedural matter. Without the phone records, the prosecution case would collapse completely.
■ Mr Dhingra substituted or supplanted evidence for the prosecution, beyond what it had proved. Police accounts of the sequence of arrests of the four "conspirators" were mutually contradictory. If Geelani was arrested at 10a.m. on December 15 as claimed, then he couldn't have told the police of Guru's whereabouts in Kashmir leading to his arrest at 8 a.m. that same day! But Mr Dhingra gives his own sequence starting with Geelani's arrest at midnight on December 14! Similarly, he tries to square the circle by reconciling technological impossibilities -- of two different cellphones having the same identity (IMEA -- Instrument Manufacturer's Equipment Identity). Mr Dhingra had earlier been reprimanded by the Supreme Court in the 1997 Kalpnath Rai case for relying on material not on record.
■ The judgment relies on questionable telephone interception records as evidence on how the police traced Geelani -- through a cellphone company -- before arresting him. But the company's first communication to them was sent two days after Geelani's arrest! Mr Dhingra also ignored the fact that cellphones were tampered with while in police custody, and that the authorisation for interception by the Union home secretary, which began on December 13, is dated December 31 and doesn't have retrospective effect.
■ The judge overruled the express mandate of the law on several counts. The recently amended Indian Evidence Act forbids reliance on computer printouts unless these are authenticated by someone who regularly operates the concerned machine. The prosecution could not provide such authentication in respect of crucial cellphone printouts. But Mr Dhingra admitted them as evidence. He also relied on the confession of an accused against a co-accused -- explicitly barred by POTA. He ignored the ruling that there must be a public witness to the arrest and confiscation of material found on the detainee. Equally unfortunately, he admitted a television interview as evidence. This interview -- with Afzal, by select journalists -- was not voluntary, but organised by the police while Afzal was in their custody. Only the inculpatory parts of this material were (selectively) used.
■ The verdict invents its own account of the identity and date of purchase of Afzal's cellphone (98114.89429). According to the dealer, he sold the instrument and its SIM card to Afzal on December 4, 2001. But the cellphone company's records show the phone to have been in use since November 6. Mr Dhingra infers, without evidence, that the dealer must have sold Afzal another SIM card!
It is hard to resist the inference that Mr Dhingra was overzealous, perhaps because he wanted to "deter" terrorism through the harshest possible punishment. He invoked "the rarest of rare" phraseology to describe the Parliament House attack -- to impose the "the rarest of rare" penalties upon three men, all Kashmiri Muslims. The trial, the verdict --and the law under which they took place -- fall considerably short of international standards. Already, the recent refusal of numerous deportation and extradition requests has cast a shadow on the sloppy evidentiary standards used by India's legal and policing systems. As has the other Geelani (Iftikar) case.
The super-fast-track December 13 trial was accompanied by prejudicial media coverage, with the police leaking selective information damning the accused, and without the accused being given a chance to refute those claims. Added to this was a barrage of intemperate political statements on terrorism and its special links with Kashmir and Islam -- duly aired by the media. This further vitiated the climate. The crowning ignominy was the broadcasting of a telefilm by Zee, exclusively based on the premise that the accused were guilty -- before trial!
Thinking citizens who care for the Constitution will also be greatly distressed by the "deterrent" rationale of the death sentence awarded to the three accused. As often argued in this column, capital punishment does not effectively deter crime. Evidence from the world over proves this. More and more countries are abolishing the death penalty. Fundamentally, the death penalty sits ill with the right to life under Article 21. No agency has the right to take away what it has not given. Morally, it is wrong to aim to kill a human being. This is exactly what terrorists do.
The miscarriage of justice has irreversible consequences in the death penalty case. More than 30 people executed in the US in recent years were later found innocent. In India too, all the 26 accused were sentenced to death for Rajiv Gandhi's assassination by the trial court. The Supreme Court acquitted 19 and commuted the sentences of another three. The lesson: we must not let the anti-terrorism fervour get the better of the law and of human rights. Mr Dhingra's judgment must be overturned. Vengeance is not justice.