INDIAN SUPREME COURT VERDICT IN 2001 PARLIAMENT

C O N F I D E N T I A L SECTION 01 OF 03 NEW DELHI 006213

SIPDIS

E.O. 12958: DECL: 07/27/2015
TAGS: PTER PGOV PREL PHUM KJUS IN PK
SUBJECT: INDIAN SUPREME COURT VERDICT IN 2001 PARLIAMENT
ATTACK AVOIDS MAJOR KASHMIRI BACKLASH

Classified By: PolCouns Geoff Pyatt for Reasons 1.4 (B, D)


1. (C) Summary: The Indian Supreme Court upheld the death
sentence for Mohammad Afzal, reduced a death sentence to 10
years imprisonment for Shaukat Hussain, and acquitted Navjot
Sandhu (aka: Afsan Guru),and SAR Geelani (of whom three are
Kashmiris) in connection with the spectacular December 13,
2001 attack on Parliament. Our contacts in the counter
terrorism community say there is "no doubt" that all four
were involved in the conspiracy, yet some were acquitted
because much of the evidence against them was ruled
inadmissible in court, even on flimsy grounds. Separatist
Kashmiris branded the guilty verdicts as "tyranny" and called
for a well-observed general strike in Srinagar on August 8.
Hard-line Hurriyat leader Syed Ali Shah Geelani used the
rally to reiterate his uncompromising position in addressing
over 30,000, including many from Afzal's home town, who
attended one of the largest Srinagar demonstrations in many
years. The court verdict found the middle path: security
hawks were mad that three escaped the gallows, while some
radical Kashmiris were mad that one did not. Politically, it
was an astute -- if not courageous -- verdict. The court
pulled its punches to close a dark chapter in India's long
fight against terror while avoiding inflaming Muslim
sentiments. End Summary.

Background: Three Escape, One will Hang
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2. (U) On August 4, the Supreme Court upheld the death
sentence for Afzal, commuted the death sentence of Shaukat
Hussain Guru, and acquitted Geelani and Sandhu (Shaukat
Hussain's wife) for their roles in the 2001 terrorist attack
on India's parliament. The four suspects, three of whom are
Kashmiris and one of whom is a Delhi University professor --
were arrested in December of 2001 and found guilty in
December 2002. Three were originally arrested under the
Prevention of Terrorism Act (POTA),but all were eventually
tried under the Indian Penal Code for "waging war against
India." Professor Geelani appealed the case to the Delhi
High Court, and, in a surprise decision, the court acquitted
Geelani and Afsan but upheld the death penalty against the
other two. Following the High Court's ruling, the Delhi
Police appealed the decision to the Supreme court, resulting
in the August 4 final verdict.

Security Contacts: Guilty, POTA or Not
--------------


3. (C) Executive Director of the South Asia Terrorism Portal
Ajai Sahni believed all were guilty of conspiracy in the
Parliament attack, but that strict evidentiary rules kept
vital wiretap information out of the courts. Asked if the
results would have been different if POTA legislation were
still in place, as suggested by BJP leaders, he answered that
it would not have made a difference. Sahni argued that
special legislation, such as the Terrorist and Disruptive
Activities Act (TADA) and POTA, has not been successful in
getting convictions, especially in conspiracy cases.
"POTA-like legislation is not as all-powerful as people
think. The first conviction under TADA was in 2001, 12 years
after the start of the insurgency in Kashmir," observed
Sahni. He claimed that by the end of 2004, there were only
64 convictions under TADA, mostly on weapons charges, and not
a single conviction with a death penalty. (Comment: These
numbers disagree with what we hear from human rights
activists, who estimate 1000 convictions under TADA. End
Comment) He asserted that BJP complaints that the removal of
POTA allowed Geelani and Sandhu to be set free are groundless.

A Dreadful Court System
--------------


4. (C) Incredible backlogs, strict rules of evidence and a
judiciary that is unwilling to try terrorist cases out of
fear of reprisal has hog-tied the Indian legal system, Sahni
lamented. He highlighted that a recording of Geelani
justifying the attack was found inadmissible, solely because
the prosecution mislabeled the duration of the tape.
Discussing the overall legal system in Kashmir, he stated
that judges are not willing to try terror cases out of fear
of reprisal. The judges often tell police officers not to
bring terrorist cases to court and to solve them "by other
means," he reported. This unofficial policy leads to
encounter killings. However, he noted that in relation to
the size of the conflict in Kashmir, the number of encounter
killings is actually quite low.

Human Rights Activist: The Correct Decision
--------------


5. (C) Director of the Asian Center of Human Rights Suhas
Chakma welcomed the decision to acquit Sandhu and Geelani,
stating that there was never enough evidence to prove they
were involved. He commented that the HR community would
protest the death sentence for Afzal only on the grounds that
they believe the death penalty is morally wrong. He noted
the rumor among lawyers associated with the case that Afzal's
lawyer did not "do his homework," and might have won the case
with better effort. However, he contradicted this by saying
many HR observers acknowledge that Afzal was involved in
planning the attack and were not surprised by the verdict.

Kashmiri Media: Some Anger, but Overall Indifference
-------------- --------------


6. (C) Kashmir-based reporter Izhar Wani of the Asia Free
Press told us on August 8 that the strike protesting the
Supreme Court verdict called for by both moderate and
hard-lined Hurriyat groups, was well-observed and that
schools, businesses, and government offices remained closed
all day in Srinagar Editor Tahir Mohi-ud-din of the Urdu
language periodical Chattan noted that hard-line separatists
called the decision a "tyranny" and said a hard-liner like
Hurriyat leader Ali Shah Geelani had capitalized on the
verdict to rouse his supporters and repeat the litany of
complaint against India. However, he predicted that the
anger would soon fizzle as people went back to their daily
lives. He concluded that it "is hard to judge the people's
true sentiments by the strike." Wani noted that many people
from Afzal's hometown of Sopore attended Geelani's August 7
rally in Srinagar but "in general, people are indifferent,"
and many believe that Afzal was involved and were as a result
not surprised by the verdict.

Comment: Court Takes Middle -- not Courageous -- Path
-------------- --------------


7. (C) The extent to which the August 8 strike in Srinagar
was widely supported by both moderate and hard-line factions
of the Hurriyat demonstrates that the plight of the four
accused still resonates in the Valley. However, attempts to
use the verdict to fuel further unrest in the area will
likely be unsuccessful, as Kashmiris go back to their
day-to-day lives. A ruling handing down death sentences to
all four risked inflaming communal tensions, yet, sparing all
also risked outraging the general public across India.
Closing its eyes, perhaps, to what it knew to be true, the
court took the middle path, thereby attempting to end a dark
chapter in India's long battle with terrorism and pour oil on
troubled waters in the Kashmir valley. End Comment.
BLAKE