Review Article

December 13th and the Attack on Indian Democracy

Ujjwal Kumar Singh

Nirmalangshu Mukherji, December 13: Terror Over Democracy. New Delhi: Promilla and Co. Publications and Bibliophile South Asia, 2005, xvii + pp. 378 Notes, Annexures. Rs. 690 (hardback).

Political trials have at different historical moments provided a theatrical display of affirmation of power, and the terrain where the ambivalent relationship between rule of law and democracy is played out. In contexts of transition from authoritarian to democratic regimes, trials have become part of the process of transition, aiming to arrive at the ‘truth’ about past wrongs, so as to restore the ethical and moral strength of the body politic. In regimes deficit in democracy viz., colonial regimes that have to compensate for being non-representative, or even functioning democracies that have to continually garner consent, government according to the rule of law becomes the basis of legitimacy. The ideology and practice of colonial governmentality was shaped by the compulsions of holding together a vast and heterogeneous empire and of ruling without representation. The allusion to a norm of ‘rule of law’ provided the moral basis of rule, yet the colonial character or rule required that the norm be hedged in with ‘legal exceptions’ corresponding to a state of emergency. Ruling with exceptional powers, with the state exercising the sovereign power of deciding when an emergency requiring exceptional measures occurs, has continued to be a feature of modern governments. The sovereign can, however, now lay claims to speaking on behalf of the people. The proliferation of extraordinary laws, in large numbers of countries today, and the manner in which they are justified, shows how democracy can actually be implicated in the process of legitimation. In an international context in which armed interventions are taken in the name of democracy and freedom, the notion of the rule of law becomes increasingly more complicated and unsettled, and at the same time, much more difficult to contest. As the events following September 11 worldwide, and in the case of India especially since December 13, ‘the authentic threat of terrorism’ is often exploited ‘as a window of opportunity for intolerable actions’, so much so that it becomes possible to accept and even promote the massive erosion of people’s rights, the framing of repressive legislation, and the subversion of principles of due process and fair trial.

In his work ‘Terror over Democracy’, Nirmalangshu Mukherji takes up this difficult task by examining the manner in which the December 13 trial unfolded amidst a ‘manipulation of fear’ orchestrated by the government, the police and investigation agencies, and the media. In the process, while trial of the case under an extraordinary law, Prevention of Terrorism Act (POTA) came to be seen and accepted as redemption of state sovereignty, and a manifestation of the ‘desperate attempt by the people for survival’, the ‘truth’ about December 13 remained shrouded and hazy. The book consciously and expressly addresses itself, therefore, to the right of the people to know what actually happened, and the need to extricate from the manipulated fear, and brush aside the web of partial truth spun around the case. The author puts together therefore, alongside his own examination of the case and its trial, a range of published and unpublished material as annexures. Together with Noam Chomsky’s foreword essay, the collection provides a unique opportunity for the reader to access primary case material including the chargesheet filed by the prosecution and confessional statements of the accused which together constitute the official story of the case, court records like statements of the accused under section 313, deposition by Geelani’s wife and an appeal for justice by Afzal’s wife, extracts from the Special POTA court and the High Court judgements in the case, and their meticulous and thorough critique in reports by civil rights groups like the People’s Union for Democratic Rights (PUDR), articles by lawyers who had painstakingly followed the case, statements by Delhi University Teachers and Noam Chomsky who had rallied behind a beleaguered colleague in his struggle for justice and fair trial. The fact that all this material, which is otherwise not easily accessible has been made available to the reader, is by itself commendable. Moreover, a discerning reader can dip into each of these, independently identify the contradictions and gaps, see the credibility of the alternative perspective on the case offered by the author and join him in the quest for truth and justice.

As mentioned earlier the quest for truth and justice is central to the process of extrication from fear that becomes the breeding ground for monstrous lies. In the first chapter ‘An Attack on Democracy’, the author shows how the fear of a phantom enemy was lodged in the minds of the people, through the concerted efforts of a political regime seeking to sustain its rule and an irresponsible media pandering to the dominant politics of exclusion and played along with the prosecution. While admitting that the attack on Parliament was indeed ‘a terrorist outrage’, the author goes on to argue, and rightly so, that the response of democratic state in such a scenario should have been to help people regain their full confidence in transparent democratic procedures ‘pulling the rug thereby from under the terrorists’. The Indian state, however, like the American state before it, and still others that followed suit, responded by using the event as ‘a window of opportunity for intolerable actions’, including the re-promulgation of the Prevention of Terrorism Ordinance and its enactment in March 2002 in an extraordinary joint session of Parliament. The journey between POTO and POTA was interspersed with the most grotesque and reprehensible manifestation of the fear of the phantom enemy in the pogrom in Gujarat. While the attack on the Parliament came to be associated in the national psyche as an attack on the Indian nation and its people, its trial was prejudged by the Special Cell of Delhi Police, which was investigating the case, in tandem with the public media. Exhibiting what the author calls a ‘willing suspension of disbelief’, the people believed the ‘truth’ of the case as dished out to them in the public display of extra-legal confession by Afzal in a press conference convened by the Special Cell, the various unsubstantiated charges made against Geelani, and the selective reporting, or misrepresentations, or even strategic underreporting that was carried out during the course of the trial. Much of the author’s discussion of the role of the media is confined to reporting before the trial started. The author’s contention about the lack of interest of the media in the case (p. 25) presumably during the course of the trial appears inaccurate. The proceedings in the POTA court were regularly reported in the press, and it needs to be examined whether the prosecution’s version remained the favoured one.

A trial within the framework of POTA is heavily tilted in favour of the prosecution, and burdens the accused and defence with severe legal disabilities. The legal debilitation that law itself imposed was substantially accentuated by the fact that even the few safeguards that were available under POTA, were not adhered to. Moreover, even the basic standards that form the crux of any credible investigation were not followed. In the second chapter ‘Who Attacked Parliament?’ the author illustrates how not only was the investigation shoddy and insincere, the trial itself was biased and unfair. The fast track POTA court (May to December 2002) denied justice to the accused by failing to provide adequate legal defence to Afzal, by especially disadvantaging the defence through a constriction on time for presenting crucial evidence or counter-examining evidences that may have a bearing on the outcome. Eventually, however, the judgement of the POTA court upheld the prosecution case sentencing Afzal, Shaukat and Geelani to death and Afsan Guru to life imprisonment. The case went on appeal to the High Court which delivered its judgement on 29 October 2003, exonerating Geelani and Afsan Guru while sustaining the death sentence of Afzal and Shaukat. What is significant in the entire trial as the author argues is that the ‘truth’ about the attack could be decided only within the framework of the case put forth by the prosecution. Thus, when the courts decided on the validity of the case, the frameworks of justice were not moving beyond what the prosecution put up for examination in the court, to seek an explanation of what actually happened. Given the massive contradictions in the prosecution’s version and the obvious fallibility of evidence, the author argues, that the prosecution’s story is ‘not only likely to be partly false, but false in crucial respects’. Putting forward this alternative perspective, the author argues, that the falsehood of evidence is in fact needed by the police ‘for sealing crucial joints of a preferred conspiracy theory’.

The simplest explanation of the attack, the one put forward by the prosecution, does not hold in the face of careful scrutiny. If its non-sustainability were to be attributed to shoddy investigation, it would still be reassuring, since we would then at least know what happened. Even then, the massive scale of sloppiness and the callous disregard for the rights of the accused, would fail to exonerate the courts and the police. The author, however, rejects the ‘shoddy and callous’ basis for the non-sustainability of the prosecution story, to argue that much of the evidence was in fact concocted and fabricated. Following from this, it becomes obvious that the truth about the attack has remained elusive. Thus, alongside an appeal for fair trial the author builds up a case for transparency and truth, without which justice may not be possible at all. The demand for truth is integral to principles of justice and democracy, and a substantial step forward from the ‘fair trial’ demand.

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