US embassy cable - 05NEWDELHI6213

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, Counter-Terrorism 
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 
--------------------------------------- 
 
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