Selective Justice in Tahiliyani’s Terror Court

By NM Sampathkumar Iyangar

Special terror court judge ML Tahiliyani must be the happiest man on earth today. During a hectic year of high-pressure work, he has been hearing politically the most explosive court case in the short post-colonial history of the Sub-continent. The onerous task over, he deserves a blissful vacation during summer, having already secured a meteoric rise. He can look forward to be rewarded with plump postings in future, by whichever regime comes to power, for the ‘loyal’ service rendered to the government.

The sense of relief Tahiliyani must be experiencing could be nothing less than that of Gujarat’s POTA judge Sonia Gokani after she wrapped up the Akshardham massacre case. Two suicide bombers had managed to kill over 30 people and injure near 100 in what was publicized as a crazy strike to take revenge for the state-sponsored pogrom in 2002. Sonia too dispensed ‘justice’ after a fast track trial held in high security prison, with access barred to ‘outsiders’, including media.
Everyone is aware that it was irrelevant what sentence Tahiliyani passed on the main accused, presented as the only surviving member of the suicide squad, supported by a meticulously manufactured propaganda in media. For a trained and indoctrinated “baby-faced terrorist”, it should make no difference whether he got death sentence on four counts and life on five counts or the other way round.

Also immaterial is that the judge acquitted the Muslim youths, presented by prosecution as key conspirators. The verdict is sure to go to the higher courts and rot for decades. Even the acquitted ones will continue to rot in jail on one pretext or the other, a routine occurrence in India. They may as well get eliminated in one of those farcical encounters that await youngsters branded as terrorists for demanding equal opportunities to excel.

Gokani and Tahiliyani: Tahiliyani was, however, not as unabashed as the ‘honourable’ judge of Gujarat. Gokani had readily bought the entire prosecution story, without batting an eyelid. She convicted all the denizens presented by cops as culprits, sentenced two of them to gallows and awarded jail sentences from 10 years to life-imprisonment. She never stopped to ask if the suicide bombers could have been assigned the job by someone else. And why the conspiracy, supposed to have been hatched in occupied Kashmir and Saudi Arabia to take revenge for Gujarat pogrom, should target the particular temple. It belonged to one of the bitterly feuding fragments of the extremely wealthy Swaminarayan sect, enjoying heavy political clout.

In contrast, it came as surprise that Maharashtra’s Tahiliyani rejected the cock and bull story implicating two co-accuseds. Faheem Ansari and Sabauddin Ahmed had been made out to be the only Indians involved in the conspiracy. The two had been picked up in 2008 in Lucknow, long before the incident. Script-writers employed by security agencies had worked hard to frame up the Muslim youths in the 26/11 carnage. The forces had killed all the bombers except Ajmal Kasab, failing to capture them alive - a practice that has become commonplace in India with obvious motives. Tahiliyani tore into the evidence presented - some scribbled maps planted on the accused, observing, “Google maps are better than this” and declared the framed up duo as “blemish-free.” Interestingly, Sonia Gokani had no qualms to accept even more laughable evidence submitted to damn the suspects.

However, Tahilyani, like Gokani, never thought it fit to inquire into every other plausible motive behind the attack. He apparently endorsed the charges made by the public prosecutor Ujjwal Nikam who  attacked Kasab for two hours, describing him as “worse than a wild beast... Kasab is a killing machine... and the orders for this machine came from Pakistan.” But, he seemed to discount possibilities of “still worse wild beasts and killing machines” holding high positions in India. That the state chief minister was swiftly moved away from limelight and the central home minister had to be unceremoniously sacked, obviously to cover up something sinister, never crossed Tahiliyani’s head.

Dubious Proofs: The selective justice of Tahilyani was limited to only the two Indian co-accused who were acquitted of all charges due to lack of evidence. Tahiliyani did not insist on clinching evidence, however, with respect to the alleged “cross-border conspirators”, including Hafiz Saeed and Zakiur-Rahman Lakhvi. He had no hesitation to buy ‘proofs’ submitted by the prosecution on their role. “The 20 wanted accused were involved in hatching the conspiracy and preparations and training of the 10 terrorists,” the judge said on the remaining co-accused who could not even be produced in court.

Accepting the ‘handler’ theory forwarded by the Indian government, the judge simply ignored the fact that Hafiz Saeed had to be set free after Lahore High Court quashed Pakistan government’s action of imprisoning him. The government, quivering at the arrant threat of military action from the behemoth across the border, had framed him, based on ‘dossiers’ from New Delhi. The upright judiciary, however, would not bend to deny fundamental rights to the citizen, based on the ‘hearsay’ evidence provided to them. The Pakistani Supreme Court too saw no reason to intervene, despite repeated threats of war from India.

As for the sole scapegoat in what smacks of a sinister conspiracy to provoke yet another catastrophic war in the region, the court held, “Considering the circumstances, the confession [of Kasab] is found to be voluntary.”

To recall the court proceedings, the confession made by the illiterate accused had made him look like a genius. It made him out to be an expert in project management tools like MicrosoftProject although he had just crossed 20. He was not just a gunman employed by others but apparently could track the mission in minute details! Weirdly, every bit of the ‘confession’ in court precisely matched the 11,000-page chargesheet scripted meticulously by the cops over eight months for the trial.

Immediately after the ‘confession’ in open court, the Special Public Prosecutor termed it as a “victory of truth.” He exulted that he had always maintained that Kasab was a great actor. The judge, however, did not consider him as a ‘great actor’ when he retracted his confession, once again in public!

Gaping Holes: The final Tahiliyani verdict is silent about gaping holes in the prosecution tale. According to the story crafted, higher-ups in Pakistan had sponsored Kashmir-based militants to enter India to commit the heinous terror job -- as if it could have happened without involvement of the higher-ups in India!

A spokesman of JUD, which is accused by Indian rulers as the front of the banned Lashkar group, took strong exception to the naming of Hafiz Saeed and Lakhvi. He recalled: “Right after the Mumbai attacks, Saeed categorically denied any involvement of his organization in a press conference held the next day” and put the record straight: “After careful review and diligent hearings, a full bench of the Lahore High Court decided that all the accusations against Saeed were baseless.”

India’s insistence of making a scapegoat of JUD and its chief -- an injustice that would never be forgiven by the general public -- as the precondition to end hostilities is quite understandable. The government apparently thinks war as the only option to divert frustrated people’s attention from rapidly climbing prices and widening disparity among the population due to lopsided economic policies.

The terror judge has apparently been forgiven by Home Minister P Chidambaram for not convicting the two ‘conspirators’ whom his cops had framed up in the case. Expressing glee at the verdict, he told an obliging propagandist of the regime, “The court has convicted a certain accused. It also acquitted two accused. That shows the independence, fearlessness and integrity of the court.” He gave full marks to the prosecution for securing judicial stamp for the designs of the authorities to keep the peace process with Pakistan in limbo, saying, “A criminal trial can only proceed step by step and within a year, the prosecution has been able to get conviction.”

Triple Integrity: But the truth slipped out of his mouth when he added, “The trial UNDERMINES the fact that India is a country governed by rule of law!” He apparently meant “underlines the fact”. The entire media reported his articulation based on a hand out from PTI, India’s demi-official news agency, without correction. That was because the suave Harvard scholar is known for his command over the English language and could not have missed the difference between ‘underlining’ and ‘undermining’. But, his highly demanding role as virtual War Minister since the Mumbai carnage, it appeared, has taken a toll on his mastery over English. It was apparently another such language error when he confused ‘integrity’ with ‘impotence’.

Actually, the triple ‘integrity’ of the Indian system came out for all to see in the explanation Tahiliyani provided for the rationale to treat the confessional statement as genuine, while trashing the retraction. He said: “The magistrate had given him [Kasab] 72 hours to think about it [his willingness to record a confession]. The HC provides that the accused [who wants to confess before a magistrate] should be given 24 hours. The magistrate gave him much more time!”

Message to Pakistan: Chidambaram then grandly declared, “If the terrorists are apprehended, we will be able to bring them to justice and give them exemplary punishment.” Obviously, it was intended for his enemies, marginalized and downtrodden masses of the country. That they should not bank on the judiciary when branded as “terrorists” and crushed with brute force if they protested against injustice was implicit in the warning.

If at all there was a message to Pakistan in the stern warning --  “The judgment is a message to Pakistan that they should not export terror to India” -- it was this: “Pakistani politicos must take training from Indian counterparts how to make the judiciary dance to the tunes of rulers! Our spineless courts are capable of damning the accused solely based on what was supposed to have been confessed secretly even if he refutes it in court!”

If Pak learns from the great democracy dreaming of lording over the whole region as a superpower, the judges of that country would accept diktats from prosecution just before delivering verdict, even after wrapping up the trial. They would not dare to quash tyrannical actions of the State. They would not sack defence lawyers unceremoniously if they take their job seriously and become an embarrassment to the prosecutor. Junior judges can be made to indirectly pass strictures against higher courts in other countries by naming persons acquitted by them after due process of law!

The author is Ahmedabad-based policy analyst