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India Ditches Iran and Nonalignment

NEW DELHI - By voting for a Western-sponsored resolution at the International Atomic Energy Agency (IAEA), meant to reprimand Iran, India has signaled the collapse of its long-standing policy of nonalignment.
Capping recent agreements signed with the United States on military and civilian nuclear cooperation within an increasingly closer "strategic partnership" with it, this constitutes the greatest shift in New Delhi's foreign policy since independence from colonial rule in 1947.
"By taking this disgraceful step, India is indicating that it has become a camp-follower of Washington," said Gulshan Dietl, a West Asia expert at the School of International Studies at Jawaharlal Nehru University here.
The resolution of the IAEA board of governors came at the end of a week of hectic lobbying and manipulation in Vienna and other major capitals of the world, centered around a draft prepared by Germany, France, and Britain or EU-3, a group that claims to have been playing a mediatory role between the U.S. and Iran.
Iran insists that its nuclear activities are entirely peaceful and within the rights and obligations defined by the Nuclear Nonproliferation Treaty (NPT). The IAEA has not held Iran to be in substantive breach of the NPT, only of not disclosing everything about its uranium enrichment history.
But the U.S. claims that Iran is bent upon developing nuclear weapons and wants it hauled up before the United Nations Security Council for possible sanctions.
The final resolution is a modified version of the EU-3's original draft. It falls short of referring Iran to the Security Council. But it prepares the ground for doing so while citing Iran's history of "concealment" of its nuclear activities, and the IAEA director general's report on them. It asks Iran to stop all activity related to uranium enrichment.
Further, it says that Iran's "noncompliance" with NPT safeguards and the IAEA's statute "gives rise to questions that are within the competence of the Security Council," given its responsibility for maintaining "international peace and security."
The resolution furnishes the basis for the next logical step, of referring Iran to the Security Council and mounting coercive pressure on it to dismantle its nuclear program.
The motion was passed 22:1, with 12 countries abstaining. Venezuela was the only state in the 35-strong IAEA board of governors to oppose it. Among those who abstained were Russia, China, Brazil, Mexico, South Africa, and even Pakistan.
The U.S. is triumphant over the passage of the resolution and has expressed its gratitude to India for helping out. Iran is outraged and has condemned the resolution as "illegal and unacceptable."
India's decision to vote with the U.S. was taken even before Prime Minister Manmohan Singh's visit in mid-September to France and the U.S., where he met President George W. Bush. The Hindu newspaper disclosed on Sept. 17 that New Delhi had already decided to vote in that manner if it came to the crunch.
After the resolution, the crisis over Iran's nuclear activities is likely to worsen. This takes the wind out of the sails of New Delhi's argument that it voted for the resolution because it expands the room for diplomacy to resolve the crisis and because it avoids an immediate reference to the Security Council.
Strangely enough, India has entered a number of caveats and reservations about the resolution. India is opposed to "Iran being declared as noncompliant with its safeguards agreements" and does not agreed that the "current situation could constitute a threat to international peace and security."
"These objections pertain to the very substance of the motion and warranted at least abstention from, if not opposition to, the vote," says Hamid Ansari, India's former ambassador to Iran and a West Asia expert, who has closely followed the IAEA's debate on Iran.
Yet, India went along with the "yes" vote on the plea that it had persuaded the EU-3 to modify its original tough resolution; since its concerns were addressed in the toned-down motion, it would not have been proper to abstain.
"But that original resolution was a mere ploy," says Ansari. "The EU-3 knew it wouldn't go through and sprang the already preferred milder draft at the last minute, thus forcing a vote in which India would break ranks with a number of Nonaligned Movement [NAM] countries such as South Africa, Brazil, and Malaysia, the current chair of NAM."
Adds Ansari, "The EU-3 was no longer acting independently, but as a surrogate of the U.S. So India ended up as the surrogate of a surrogate, demeaning its policy of independence. This speaks of poor diplomacy with respect to NAM, as well as a confused foreign policy."
For decades, NAM acted in unison at the IAEA. Now, it stands split, with countries like Peru, Ghana, and Ecuador joining hands with the U.S.-EU while Malaysia, South Africa, Mexico, Brazil, which have been proactive in NAM, abstained.
"The Indian vote," says Dietl, "militates against the national interest and will greatly lower India's global stature and credibility. If India could stab a friendly country like Iran in the back, despite its close economic and political relations with it, it won't be trusted by many other developing countries."
India's vote is likely to jeopardize a grand project it is currently negotiating: an Iran-India gas pipeline passing through Pakistan. This enjoys wide domestic support and has been seen as the key to promoting peace and prosperity in the South Asia-West Asia region, as well as opening a conduit to energy-rich Central Asia.
The Manmohan Singh government's decision has come under spirited attacks domestically both from the left and the right. The Left sees it as "betrayal" of the legacy of solidarity with the "nonaligned and developing countries" and succumbing to U.S. pressure. The Left, a crucial ally of the ruling United Progressive Alliance, led by the Congress party, says the resolution "virtually" converts India into a U.S. ally and camp-follower.
The right-wing, pro-Hindu Bharatiya Janata Party (BJP) too has opposed India's decision to vote for the EU-3 resolution in Vienna and accused the government of "surreptitiously" making a major foreign policy shift.
Jaswant Singh, who served as foreign minister during the BJP's years in power from 1998-2004 said the government was "spreading confusion on important policy matters impinging directly on national security."
Singh said there was now a serious question mark on the proposed gas pipeline from Iran, especially because the government has refused to spell out whether "it stands or not."
A former senior official of the National Security Council, under the BJP dispensation, said he feared that "the vote [at the IAEA] will decrease India's bargaining power vis-à-vis the U.S. and generate anti-India suspicions in China."
India strenuously denies that the vote in Vienna is linked to its eagerness to get the U.S. Congress' approval for a far-reaching nuclear cooperation deal it signed in July with Washington. However, The New York Times and other newspapers have reported that the U.S. explicitly made such a linkage and told Singh in mid-September that India "must choose" between Iran and the U.S.
India's concern to have its nuclear weapons status normalized has become an obsession. "This is driving New Delhi to try to gatecrash into the global nuclear order based on the NPT, although it is not even a signatory to that treaty," argues Dietl.
"All in all, the Vienna vote is a remarkably bad bargain, and announces India's capitulation to the U.S.," Dietl said.

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India's Nuclear Albatross

New Delhi deluded itself that it scored a coup by signing the July nuclear deal with Washington. It must now confront the bitter truth: `normalising' its nuclear weapons status will entail erosion of its policy independence in different fields. The crisis over Iran's nuclear programme is the starkest example.
When Prime Minister Manmohan Singh embarked on his mid-September visit to the United States, he must have desperately hoped that he would not be confronted with an "either you are with us or your are against us" choice from Washington over joining the U.S.' escalating effort to isolate Iran and have its nuclear programme referred to the United Nations Security Council for possible sanctions. He must have also hoped that President George W. Bush would somehow delink the Iran issue from the commitments he made in the July 18 nuclear deal to make an exception for India in the matter of loosening the nuclear control regime.
The hope can only be called desperate because the signals emanating from Washington in recent weeks were loud and clear. The U.S. would be insistent that India join it in its confrontation over Iran. Secretary of State Condoleezza Rice made the point explicitly on September 9 when she said: "Now we need leadership on this. The European Union-3 [the United Kingdom, France and Germany] led on this issue. The United States supported the E.U.-3... But Iran needs to get a message from the international community that it is a unified message. And by this I mean not just the E.U. and the U.S., but also Russia, China and India."
Recent reports in the U.S. media unmistakably pointed to the connection Washington would make between the nuclear accord with India, and the "responsible" role that India must play on such global issues as the U.S. considers important. The debate in a U.S. Congressional Committee over the Indo-U.S. nuclear deal, in which Representative Tom Lantos targeted India's "pro-Iran" stance, highlighted this.
Just a few days earlier, Foreign Secretary Shyam Saran had "reiterated" India's stand on Iran with "no ambiguity": Iran, he said, should adhere to its international obligations. Any questions about Teheran's nuclear programme should be resolved through discussion, not confrontation. (The Hindu, September 10). This was a subtle shift from India's oft-stated position that the International Atomic Energy Agency has found no evidence that the Iranian uranium enrichment programme has a weapons component; and that Iran has every right to enrich uranium for peaceful purposes subject to its obligations under the Nuclear Non-Proliferation Treaty (NPT).
In New York, Manmohan Singh faced a choice, or what has been called the "litmus test", to demonstrate the independence and principled basis of India's foreign policy. If and when pressed by Bush, would he defend Iran's right to enrich uranium, in keeping with the stand of the Non-Aligned Movement (NAM) group in the IAEA's Board of Governors, or cave in to the U.S. in some measure?
Manmohan Singh's response was equivocal. He reiterated India's "consistent" and "principled opposition" to any kind of nuclear proliferation and said Iran must fulfil all its international obligations and commitments. According to Saran, he indicated India's preference - to let "diplomacy" produce a "consensus" in the IAEA. India would "constructively" contribute towards finding a "consensus".
This obviously did not satisfy the U.S. administration, which takes a dim view of what it regards as India's "demurring". According to senior officials quoted in The New York Times ("India Balks At Confronting Iran, Straining Its Friendship With U.S.", September 15), the U.S. does not want the IAEA Board to take its decisions by "consensus". It is keen to change the IAEA's decision-making procedure, by pressing for a majority vote. "With India's help, they can obtain a majority vote... to refer Iran to the Security Council," the officials said.
The message given to Manmohan Singh was that India has "to make a basic choice". An official said: "Indians are emerging from their non-aligned status and becoming a global power, and they have to begin to think about their responsibilities." Washington believes India "is in the middle between the West and Iran, with which it has tried to foster a close relationship". "In effect," reports The Times, "Bush administration officials say India must now choose who is the best partner to meet its surging energy needs - Iran with its natural gas resources, or the West with its ability to help in developing Indian civilian nuclear power."
India's position on the Iran issue is shot through with anomalies, four of which are noteworthy. First, the U.S. is prejudiced against Iran. It has demonised Iran since the Islamic Revolution of 1979, regardless of its changing domestic realities; just as Iran emerged from the shadow of Ayatollah-style extremism, Washington declared it a "rogue state". The U.S. has now unilaterally decided that Iran is - like Iraq under Saddam Hussein - acquiring nuclear weapons. It wants to act unilaterally and is threatening multilateral agencies with irrelevance if they do not fall in line. It would be tragic if India were to legitimise U.S. unilateralism.
Second, not even a remotely plausible case has been made that Iran has nuclear weapons or, that its nuclear programme is military. True, Iran hid a part of its programme from international eyes for many years. But it has opened it to the IAEA since 2003, when it "temporarily" suspended enrichment preparations and activities as part of a negotiated deal with the E.U.-3.
The IAEA has repeatedly given Iran a clean chit. Its recent reports conclude that the traces of enriched uranium detected two years ago at Iranian facilities are attributable to equipment imported from Pakistan. Inspections have found no evidence of Iran running a clandestine nuclear weapons programme. But the U.S. dismisses these conclusions and ignores Iran's cooperation with the IAEA.
Independent assessments suggest that Iran may be five to 10 years away from acquiring nuclear weapons capability. A recent report by the London-based International Institute for Strategic Studies estimates that Iran would need more than 10 years to build an industrial-scale centrifuge plant at Natanz. At the moment, Natanz is basically a "pilot plant", with a relatively small number of centrifuges. India is being pressed to disregard these facts.
Third, India has failed to differentiate itself adequately from the inconsistent position of the E.U.-3. The E.U.-3-Iran talks started off well. Both sides made, and improved on, offers. The E.U.-3 offered political, economic and nuclear cooperation with Iran, as well as security guarantees. Iran agreed to suspend its nuclear programme and place it under the IAEA's inspections.
Things changed when Iran's presidential election was announced and Mahmoud Ahmadinejad, a supposed "hardliner", emerged as a contender. While waiting for his installation, the E.U.-3 missed the agreed deadline (July 31) to propose a promised improved deal with Iran. The E.U.-3 had prepared a package on the assumption that the "moderate" Ali Akbar Rafsanjani would win the election. When he lost, the E.U.-3 hardened the deal's terms, ignoring Iran's broad domestic nuclear policy consensus, which cuts across "moderate-extremist" lines. The E.U.-3 demanded that Iran permanently renounce uranium enrichment.
Iran refused, arguing that no self-respecting state could permanently surrender a right available to it under the Non-Proliferation Treaty (NPT) and international law. Iran suspected that the E.U.-3 were "playing into the hands of the U.S.", and decided to resume conversion of uranium oxide into uranium hexafluoride gas at Isfahan. (The gas is meant to feed enrichment centrifuges at another facility, in Natanz. Iran has not started enrichment yet.) The Iran-E.U.-3 talks collapsed.
In early September, the IAEA reported that Iran had produced seven tonnes of uranium hexafluoride. This gave the U.S. an opportunity to raise its anti-Iran campaign to a high pitch. The E.U.-3 caved in to U.S. pressure to have Iran referred to the Security Council. The IAEA alone can make that reference. (Its Board of Governors is scheduled to meet on September 19, three days before this column is being written.) The E.U.-3's record casts doubts on the quality of the "consensus" that might emerge. Yet, India is putting all its eggs in the "consensus" basket.
Fourth, the IAEA is divided on the Iran issue. About two-thirds of its 35-member Board - including Brazil, South Africa, Pakistan and India, besides 11 other non-aligned countries - are reluctant to refer Iran to the Security Council. Russia and China are even more reluctant. The NAM group, currently headed by Malaysia, forms a solid bloc in the Board and acts unanimously. Its stated position is that Iran has a `right' to enrich uranium for peaceful purposes. Malaysia declares this right as "basic and inalienable".
It is hard to fault the NAM position - irrespective of one's stand on the desirability and sustainability of nuclear power. So long as the NPT exists as an international treaty, legal rights and obligations under it cannot be revoked. Legally, it is equally futile to argue that Iran has plenty of oil/gas and will not need nuclear power. Russia and the U.S. too have plenty of oil or gas, but no one questions their substantial nuclear power programmes on similar grounds.
India thus risks splitting the NAM group in the IAEA by pleading for a bogus "consensus". Matters will worsen if India toes the U.S. line. This will have serious consequences. The Iran issue has become a symbol of Third World defiance of unreasonable Western pressure. India will be on the wrong side of the divide.
India may not face a critical test over its stand on Iran just yet. On available indicators, the U.S. has not managed to gather enough support in the IAEA Board to win a vote on Iran. It is likely to delay discussion beyond September 19. Rice admits as much: "The world is not perfect in international politics. You cannot always get a 100 - per cent solution." But this test could come very soon. Washington seems determined to force the issue. It is even examining the possibility of an armed attack on Iran.
The respected U.S. magazine, The Nation, has reported: "Bush has given the Defence Department approval to develop scenarios" for an attack "if Teheran proceeds with uranium-enrichment activities viewed in Washington as a precursor to the manufacture of nuclear munitions." According to The American Conservative, U.S. contingency plans may use conventional and even nuclear weapons against over 40 targets in Iran.
The present situation is similar to what happened in 2002-03 over Iraq. The international community did not favour invading Iraq. The U.S. mounted an energetic campaign to mobilise opinion in the Security Council for a "second resolution" authorising military intervention. Despite its efforts at bribery and coercion, it could not get the required support of two-thirds of the Council's 15 members. It was not just France, Germany, Russia and China, but even small states like Cameroon, Angola, Chile and Pakistan that did not yield. Yet the U.S. went ahead and invaded Iraq.
The real issue is this. What will India do if confronted with a division in the IAEA? Will it behave like the refuseniks of 2003 and chart out an independent, dignified course? Or will it abandon all principle and abjectly capitulate to U.S. pressure, as many "realists" (read, defeatists) in our strategic community are urging it to do in the name of "strategic partnership" and a "historic" nuclear deal with the U.S.?
Besides principle, does India set any store by relations with a friendly country like Iran, with which it has important economic, especially energy, transactions, which are likely to grow with the Iran-Pakistan-India gas pipeline project to the collective benefit of all three nations? Does it take regional economic integration seriously, or merely pay lip-service to it? Does India see itself a part of the developing world and the non-aligned concept, or does it delude itself that it has graduated - despite its appalling poverty, and its rank of 127 in the Human Development Index - to the Big League led by a hegemonistic America in search of a global Empire?
Another question arises. Indian supporters of the nuclear bomb claimed that nuclear weapons would help India expand its room for independent manoeuvre in global politics. The opposite has happened. India's effort to get its nuclear status accepted and "normalised" has drawn it into awkward compromises with the Great Powers, especially the U.S. India has had to offer a bargain to Washington in which it would become a "partner" or friendly power - within a deeply asymmetrical relationship. Partnership is no free lunch. The dominant power will lay down the terms of "partnership" and "responsibility"; the subordinate power must contortedly strive to adjust to the terms, sometimes at enormous harm to its interests in some field or other.
Besides, the U.S. is not the kind of power that practises parity or even equitable consultation with its allies. It treats them with disdain, contempt, even hostility - remember Donald Rumsfeld's dismissive remarks about "the old Europe" after France and Germany deferred to the democratic urges of their peoples and refused to join Iraq's invasion?
India's search to maintain and extend its nuclear weapons status will make it extremely vulnerable to all kinds of pressure from the U.S. Right now, the pressure is centred on Iran: choose between Iran with its natural gas, or the West with its nuclear power. As The New York Times reported: "Administration officials have warned India that if it fails to cooperate on Iran, the civilian nuclear energy agreement ... could be rejected by Congress."
However, Washington can, at any time, threaten to block or suspend the implementation of the nuclear deal, or cite resistance from Congress, to drive unequal bargains on trade, agriculture, intellectual property, services, foreign investment. There is not even a remotely reasonable or credible assurance that India can successfully resist such pressure, or indeed that it wants to do so.
As this column has argued right since the Pokhran-II tests, nuclear weaponisation was a historic blunder and a remarkably bad bargain. It has eroded India's security, lowered its global stature, damaged its credibility and turned its image from a pro-disarmament force to a cynical, hypocritical power. It has distorted internal social priorities, and promoted militaristic and macho ideologies. It will also impose huge economic burdens as the nuclear weapons programme proceeds apace. To this must now be added the burden of the July 18 "historic" nuclear bargain, which has further raised India's vulnerability. The need for undoing and reversing Pokhran-II has never been more urgent.

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Part III

Settling the Kashmir Dispute

The next step is to make the talks more inclusive, by bringing in elected leaders and civil society

Yesterday I received an email response from an Indian Express reader in Pakistan, Shaukatullah Khan, to my piece of September 21, ''Whither the Peace Process?'' Shaukatullah accused me of ''toeing the line'' of the Indian Government by talking about CBMs without discussing the settlement of the Kashmir dispute. ''People in Pakistan will not fall in the trap of pulling on the cord of peace process and endless negotiations lest our nukes be rusted,'' he concluded darkly.
The reason why I have not discussed possible settlements in these pages (though I have in various other fora, including a book) is, first of all, that Prime Minister Singh and President Musharraf have already indicated the broad contours of a settlement based on making the LOC ''irrelevant.'' How this goal is to be achieved and what the details of a lasting settlement should be are matters that need to emerge out of wide-ranging consultations with, and between, India, Pakistan and the people of the former princely state of Kashmir. Attempts to preempt that process through the public space of OpEds could be counterproductive. As it is we South Asians are endemically suspicious. If the political actors in this peace process are considered to be following a prearranged plan they will fear loss of credibility, and their political will, which is never as strong as we in the public wish, is likely to weaken further.
This is not to say that there should be no discussion of a settlement. Without such a discussion many in Kashmir will doubt that India and Pakistan are serious in their pursuit of peace - and many in Pakistan will accuse General Musharraf of buckling under pressure.
But we need to distinguish between what should be discussed in private, between the leaders and their back channel envoys, and what should be debated in public. We are still in the stage of unfolding a peace process, when substantial discussion of a settlement has taken place between Prime Minister Singh and President Musharraf, and presumably between the Hurriyat and President Musharraf, but is yet to take place between the Hurriyat and Prime Minister Singh.
The peace processes that result in a lasting solution generally conform to a pattern. In stage one there are secret negotiations between the concerned governments, separatist leaders and armed groups, in which the key elements of a settlement are broadly agreed. These are followed by a comprehensive cease-fire and cessation of all hostilities, including hate speech.
In stage two the focus shifts to concrete confidence-building measures, such as reduction of troops, release of political prisoners and punishment of human rights violations, in tandem with more visible political negotiations for a settlement in which all the different parties are involved. Civil society support is critical at this point; it provides both a public constituency for reform and acts as a control on politicians seeking advantage.
Stage three is when the parties unveil a comprehensive and detailed settlement, including the disbanding and rehabilitation of militias, and begin to implement the peace agreement.
The Kashmir peace process has not followed this pattern. We have taken some elements from stages one and two, without completing either. There is no cease-fire, and whatever secret negotiations there are with armed groups have not yielded fruit. Without a full cessation of hostilities the measures we are taking from stage two, such as troops' reduction and prisoner releases, are bound to be partial and reversible.
To begin public discussion of a comprehensive settlement at this point will only compound the muddle. Worse, it might narrow the options for a settlement. At present, the armed groups have a veto over the peace process - they can always resort to violence to disrupt or end it. They will have the same kind of veto over a comprehensive settlement if negotiations towards one take place without a cease-fire.
Moreover, we have just begun to widen the talks' process so that the political elements amongst the separatists, such as the Hurriyat, gain over the military elements that continue to oppose peace. Here the next step is to make the talks more inclusive, by bringing in elected leaders and civil society, in order that discussions towards a settlement have wide public support.
India and Pakistan messed up the autonomy option by making it conditional, and negotiating it in the context of violence. Neither country can afford to repeat this mistake. If they muddy the options that are available today, Kashmir could go the route of Chechnya or Palestine, both eventualities to be devoutly shunned.
In this context, India has another quick decision to make. The deadline for a Congress takeover in Kashmir is fast approaching. I hold no brief for the Mufti government, but continuity can be important when there is a critical peace process underway. I do hope the pros and cons of a takeover are being carefully weighed by our Prime Minister.
(Concluded)
The writer is a trustee of the Delhi Policy Group and Professor at Jamia Millia University.

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Part II

The View From Srinagar

Over the past six months Srinagar has begun to move into a post-conflict stage

It seems odd to talk about Srinagar when there is such an important meeting underway in Delhi, a ''heart to heart'' between Kashmiri leaders from all regions of the former princely state. But this meeting's impact will be judged from Srinagar, and my own sense is that its potential to impact favourably is large.
Over the past six months Srinagar has begun to move into a post-conflict stage. The difference is palpable. There are far fewer checkpoints, and these are manned by local police and CRPF. The army is far less visible - except at night, when the hilltops ringing Srinagar glitter with the light from army barracks. Though the city still empties of its local residents at nightfall, it bustles until then. On a late July afternoon, the Mughal and Shalimar gardens were bursting with flowers and people to enjoy them, and Dalgate was, at 11 p.m., packed with tourists, the restaurants were lit, and I even heard music playing.
This is, however, only one side of the story. I was there a couple of weeks ago, when the Prime Minister's talks with the Hurriyat took place. The local press coverage was considerable, and optimistic, but the public reaction was more mixed. Most people still doubted the sincerity of the Indian and Pakistani leadership, as well as the unity of their own - and they have reason to do so.
At the same time that the Prime Minister held talks with the Hurriyat, the Jammu and Kashmir government charged Srinagar's fundamentalist firebrand, Asiya Andrabi, under the Public Safety Act. Andrabi had been earlier arrested, along with other women colleagues, for roughing up a woman dining with her husband, as part of her drive to rid the city of brothels. There were no protests at her arrest on common criminal charges - but when the government used the PSA against her, Srinagar went on strike. Most people concluded that this event revealed that the India-Hurriyat talks were only ''for show,'' though some accused unnamed spoilers of deliberately undermining the peace initiative by the Hurriyat.
It appears that the blunder was inadvertent - the recently appointed police chief acted in an excess of zeal, without considering whether the PSA was appropriate or assessing the potential public damage his charges might do to the nascent peace process with the Hurriyat. But the damage was done - the effect of the India-Hurriyat talks was severely reduced.
This is not the first time that the right hand has undermined the left in Kashmir. I was in Kashmir for an ''intra-Kashmiri dialogue'' in July, with participants from all the different regions of Jammu and Kashmir, including Azad Kashmir, Gilgit and Baltistan. The day after our conference began, militants took over the central cable system, closed down all the entertainment channels and substituted a text that said ''we apologize to our subscribers for their loss of entertainment, but we had to do this in protest against the killing of three innocent boys in Kupwara by the security forces''. That afternoon two militants got into the Lal Chowk shopping complex, which was soon surrounded by security forces, in an encounter that only ended two days later (which was when cable TV was restored too).
''This militant attack is being done to discredit our meeting,'' one Azad Kashmir participant said to me. At the time I thought he was exaggerating - ours was a low profile civil society meeting but now I am not so sure. The battle for Kashmiri hearts and minds has entered a new phase in which the peacemakers are gaining ground over the naysayers. The question is, how do we help the peacemakers defend and expand their space, while preventing the naysayers from using violence to disrupt the peace process?
It is in this context that the present meeting in Delhi gains salience. First of all, it brings together diverse and, until now, warring leaders from the different parts of Jammu and Kashmir. To have Farooq Abdullah, Abdul Ghani Bhatt and Sajad Lone at the same table, discussing a peace process proactively instead of combatively is in itself a huge confidence booster that all shades and sections of Kashmiri opinion will be part of the consultations for a lasting settlement. It is also an enormous step for the Hurriyat to say, as Mirwaiz Umar Farooq did, that elected political leaders and civil society must be involved in talks as well.
The problem is that these meetings are all taking place this side of the LOC. When will there be an intra-Kashmiri - or an India-Pakistan-Kashmir - dialogue in Muzaffarabad, Lahore or Islamabad? Is it possible to tackle the issue of violence without having such meetings on the other side of the LOC? From Sardar Qayoom Khan's remarks it appears that Pakistan is beginning to recognize this need, but cautiously. Chief Minister Mufti Sayeed, Mehbooba Mufti, and Farooq and Omar Abdullah have all been invited to Pakistan. Not quite a conference, but it is another step on our slow road to peace...
The writer is a trustee of the Delhi Policy Group and Professor at Jamia Millia University.

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India the developing world's top arms buyer

India: India has emerged as the leading buyer of conventional arms among developing nations in 2004, beating China into second place, despite nearly 40 per cent of its population of more than 1.2 billion living below the poverty line.
According to the US Congressional Research Service, possibly the most comprehensive assessment of global weapon sales, India has bought weapons worth $5.7 billion.
It was also the developing world's largest weapons purchaser over the 1997-2004 period covered in the report, sealing 10 per cent of all such arms deals.
China overtook India for the period 2001-2004 on the back of a big increase in defence spending and modernisation, especially of its navy, but Delhi was back on top last year.
In an ambitious attempt to become a regional superpower and project diplomacy through military means, India has in the past three years contracted to buy a conventional arsenal including a Russian aircraft carrier, Israeli airborne early warning systems, Russian frigates and a range of sophisticated US equipment for its newly raised special forces.
In early September the Indian navy finalised a $3 billion contract with France for six conventional submarines to bolster its reach and power projection.
The navy also advanced negotiations with the US to acquire eight to 12 refurbished maritime reconnaissance aircraft worth more than $2 billion.
The Indian air force, meanwhile, is reviewing proposals for a multi-billion-dollar contract for 126 combat aircraft and the Patriot anti-missile defence system, while the army is re-evaluating plans to acquire 1,200-1,500 howitzers over the next decade in a deal valued at more than $3 billion to standardise its nearly 200 artillery regiments.
The Indian army is the third-largest in the world after China and Russia.
The navy also began constructing a 37,000-ton aircraft carrier locally, while all Indian naval yards are full with orders, building warships to reinforce the fleet.
India is also constructing 150 multi-role Russian Sukhoi 30 fighters under licence and will soon begin making Russian T90 S main battle tanks locally, having bought 310 of them three years ago for around $800 million.
Israel has risen swiftly up India's weapon sales charts, providing it with $2.76 billion worth of arms over the past three years, making Tel Aviv the second-largest supplier of military equipment to Delhi after Russia.
Shortly after Delhi and Tel Aviv formalised diplomatic relations in 1992, Israel clinched contracts for three Phalcon airborne warning and control systems or Awacs for $1.1 billion, and also hardware and missile upgrades.
Tel Aviv is also supplying the Indian military with drones and satellites to "weaponise" space and, with a range of missiles valued at around $900 million each year since 2002, comparing favourably with the $1,500 million defence business India conducts annually with Moscow.
Britain, too, has joined in this bonanza with 66 Hawk jet trainers worth more than $1.65 billion.
The US military-industrial complex, backed by the White House, is also exercising influence to fight its way into an Indian defence market that seeks to upgrade and replace more than 70 per cent of its arsenal of Soviet-era and Russian weaponry.

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Part I

Whither Peace Process?

The obviously bumpy meeting between Prime Minister Manmohan Singh and President Musharraf in New York has many analysts worried. Why did President Musharraf bring up Kashmir in the context of UN resolutions instead of discussing the peace process between India and Pakistan? More worryingly still, why did he push for troops' reduction in Baramulla and Kupwara, both areas of heavy militant presence, not to mention infiltration routes - is he continuing to support the militant groups on one hand, while talking peace with India on the other? Or is there a context to all this that we do not know?
An immediate explanation for President Musharraf's conduct could be Afghanistan. Pakistan is under pressure to prevent Taliban attacks from the NWFP during the Afghan elections, and a major concession by India would offset domestic anger. This also explains why US Secretary of State Condoleeza Rice asked our Prime Minister to agree to the President's demand for troops' reduction. (Presumably she did not realize the strategic significance of Baramulla and Kupwara for militancy, though she should have suspected something of the sort, having experienced similar tactics).
Yet if President Musharraf was quick to make counterproductive demands in New York, he dropped his demands equally quickly. The conciliatory statements of the Indian and Pakistani leaders following their disagreements suggest a wider context to the New York meeting, that the two countries have moved to the next stage of the peace process - how to fully and finally end the violence in Jammu and Kashmir - but are still in the preliminary stage of negotiating the steps that each will take, and their sequencing. If this is the context, it is a potentially positive one.
The issue of ending violence was always going to be a thorny one, almost as much so as the issue of a lasting settlement. From the first initiatives to get a peace process started in 2000, Pakistan has been reluctant to give up what successive governments considered their only trump card, the militant groups fighting in Kashmir. In the past two years, however, Pakistan has inched towards reducing support for militants. First there was the cease-fire on the LOC in 2003, then acceptance of India's fencing in 2004-5, and most recently an active discouragement of cross-border infiltration.
India's initiatives to end violence have kept pace with these changes. It took some time for the security forces to accept the need for reform - indeed it is only this year that counterinsurgency operations have been downsized, partly due to better intelligence. But once reform started, it has been pursued. There is, finally, a sustained effort to stop human rights abuses by security forces. Earlier this year, the Indian government made a first reduction in troops, which was supposed to be followed by further reductions once a cease-fire with militant groups was agreed. That is yet to happen.
Why is it so difficult to get a cease-fire - at least with the Hizbul Mujahideen, who previously entered cease-fire talks, most memorably in 2000? A political strategy was carved out, that the Hurriyat would seek a cease-fire from the militant groups, in fact this was one of the purposes of the Hurriyat's visit to Azad Kashmir and Pakistan. But the Hizbul has proved difficult to win, perhaps because its leader, Syed Salahuddin, wishes a political role of his own, independent of the Hurriyat, or perhaps because Pakistan still fears to give up its "military option" entirely.
On the Indian side, too, we have heard little support for a cease-fire, which really is puzzling given that it is only after violence ends that hearts and minds can be won. What prevents the Indian government from saying that they are willing to offer the militant groups a cease-fire, via the Hurriyat, Pakistan or any interlocutor they choose? They could reassure the Hurriyat that the offer will not undermine them.
In the meantime, India could interpret President Musharraf's New York demands more liberally. The Indian government has already begun to redeploy the military out of highly populated areas, and security is now being handed over to the Kashmir police and Central Reserve Police Forces. These are key CBMs which could be made more of, for example by citing them as signs of India's sincerity in the peace process. To do so will give both the Hurriyat and Pakistan a boost - and it will begin to plug a worrying gap that is emerging. Political and humanitarian talks have finally gotten off the ground, but negotiations for an end to violence are less visible. For the peace process to be irreversible the two need to go in tandem.
The writer is a trustee of the Delhi Policy Group and Professor at Jamia Millia University.

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Will the next summit succeed?

Indo-Pakistan Summit on Wednesday (Sept 14) only succeeded in continuing the talks and saying that terrorism and other impediments will not be allowed to derail the dialogue. There was no word about further agreements. President Pervez Musharraf has put a positive spin on this blankness. One hopes he is right. The Composite Dialogue has failed in its first two rounds. It was expected that this Summit would agree to inaugurate the Third Round. It has not done so. In a way, we are back to square one, if not further behind it.
Let's enumerate the issues that require resolution. One puts them in six boxes. The first is about Kashmir. The second groups Siachin and Sir Creek problems. The third comprises issues connected with water, the offsprings of Kashmir problem that are growing up. The fourth is the nuclear issue all the implications of which are not yet recognised. The ramifications of these weapons are far reaching and if the problem is not defined, debated and resolved, no other settlement will work. It is linked to overall purposes of the two countries: whether they will be friends or enemies will hinge less on Kashmir and more on nuclear weapons. The fifth are questions of free trade, MFN status for India and the rights of Indian goods' to and fro transit through Pakistan. A lot of benefits for all are involved.
Finally, there is free travel and the visa regime between the two. Its importance is seminal. Unless there is free travel for common people of each country in the other's territories, there would be little progress on any issue. In that sense, all issues are inter-dependent though some are more important. Among these are four: free travel, free trade, nuclear issue and Kashmir.
Indications were that the New York encounter would sort out Siachin and Sir Creek. Well, it didn't. Whether the next encounters will or will not resolve is the question. They are easiest to resolve. Everybody knows that a settlement on Siachin had been arrived at and a treaty had been initialed. Sir Creek is also not a grave issue. Would they settle these next time? Let's wait.
As for Kashmir, the assessment is like half full or half empty glass. Pakistan wants a settlement that "satisfies the two countries", though for PR purposes Kashmiris' satisfaction is frequently mentioned. The jointly accepted formulation is "to the satisfaction of the two countries". For Pakistan, Kashmir is a litmus test; it is still for "Kashmir first and other things later". As for a possible Kashmir settlement, Mr. Manmohan Singh has again identified the Red Lines beyond which India will not go: this is redrawing of the present boundaries of Jammu and Kashmir state, i.e. India's sovereignty over the state's parts it controls, cannot be questioned. What may be left is a half-formal and half-informal settlement in separate regions that President Musharraf had indicated at one stage. That Indian Prime Minister has shown annoyance at President Musharraf's mention of Kashmir in his General Assembly speech throws a blindingly clear light on the problem's current status.
Don't forget Kashmir has been a bone of contention for 58 years. Strong vested interests have grown up in both countries leading them to militarise and has set each against the other. The history of three wars and many quasi-wars is militarisation's result. These vested interests work against the India-Pakistan friendship, which would hurt them. Industrial-military lobbies comprise resourceful people with much influence, for they ride on the chariot of patriotism. Unless the common people on both sides determinedly pressurise the two governments to become close friends, the vested interests would always prevent a final settlement. That needs to sink in on both countries.
Nuclear weapons are a misunderstood issue. Two hostile Nuclear Deterrents, confronting each other from such close quarters, cannot permit friendship between India and Pakistan. Period. Nuclear weapons being weapons of attack only, with no defence against them, two such states can never trust each other. So long as the issue is not resolved radically to either make the two deterrents disappear or the relationship should become so close that hostility between the two becomes unthinkable --- such as is the case of France and Britain. Probably, Indian and Pakistani hardliners still believe in the illusion that a dÈtente can possibly prevent the two from going to war and enable political agreements to work.
Well, no such detente has emerged in two years. A certain number of CBMs have certainly been implemented; some more are likely to be. But are CBMs a solution? For the relationship to be so reoriented as to make hostility between the two unbelievable the two sets of Hostile Deterrents will have to disappear; nothing else will work. This issue needs far more debate to notionally define solutions. It is a big issue and surpasses Kashmir in importance.
The fourth set of disputes are again easy if the political will to resolve them pre-exists. If not, they too become a major issue. For Pakistan, water is increasingly being recognised as its Achille's heel. It needs ever more water for irrigation and drinking for an exploding population. The hopeful factor in this is that both countries want to remain bound by the 1960 treaty on Indus Waters. It provides a workable framework to sort out such issues, if necessary by arbitration. Baglihar issue has already been referred to the World Bank for arbitration. But given political will both issues can be resolved.
As for free trade and transit, Pakistan has made Kashmir the fulcrum on which everything turns. If Kashmir is not resolved, Pakistan would not give India MFN status, shun free trade with it, nor grant it transit rights for its trade with Central Asia. This is inconsistent with the need to exploit all economic opportunities. If no trade and no transit for four decades have not forced India to accept the Pakistani viewpoint, another forty years can also be wasted. The question is should Pakistan continue to insist on "Kashmir or nothing"?
This policy has produced no results. It is futile. India refuses to see it as a strong pressure; it is unlikely to submit to Pakistan's wishes. It is profitable for Pakistan to take what is available and feasible. This means mutual enrichment of trading classes. Economic cooperation flows out of free trade and development follows. Sky is the limit for economic cooperation between India and Pakistan, which can easily be extended to the whole of South Asia. Islamabad can unlock trade, economic cooperation and development by giving India the MFN Status and easy transit rights.
Lastly, there is the question of free travel and cultural exchanges between the two peoples. Hitherto both states have restricted visas to only a few on compassionate grounds. The paranoia of intelligence agencies in the two countries needs to be curbed; free travel by people will not undermine either state. The states are well established and strong enough to bear the "threat" of free travel. All civilised countries permit free travel. The Subcontinentals talk of 6000-year-old civilization. But their behaviour belies any respect for their inheritance. Ideally there should be no visas between India and Pakistan. If they become friends, economically cooperate and engage in free trade, free travel and free cultural exchanges nothing injurious can happen and much will be gained. Look at what Nepal and Sri Lanka do. Scope for useful cooperation in culture and media needs no elaboration.

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India, France Settle On $2.98B for 6 Subs

India and France agreed on a final price of $2.98 billion for the licensed production in India of six Scorpene attack submarines, a technology-transfer deal that French companies hope will lead to further military sales, defense and government officials in both countries said. An Indian Defence Ministry official said New Delhi had included an option for the licensed production of a further nine Scorpenes. “The deal opens the way for potential further orders as the Indian Navy seeks to acquire more submarines in its fleet renewal program,” said Pierre Legros, chief executive of Paris-based Armaris, a joint venture of Thales and French shipbuilder DCN.
The Scorpene was competing against the U214 from German yard Howaldtswerke-Deutsche Werft.
A breakthrough on price talks in the week before an official visit to Paris by Indian Prime Minister Manoham Singh allowed French President Jacques Chirac to announce the deal Sept. 12, the Defence Ministry official said. European missile house MBDA will deliver SM39 Exocet missiles as part of the package. An MBDA spokesman declined to give details of that contract, which business daily La Tribune reported Sept. 5 included 36 missiles. India’s state-owned naval yard Mazagon Docks Ltd. (MDL) will build the submarines. “We are very happy to undertake this project, and our shipyard is fully capable to license-produce the French submarines,” said MDL Chairman Ravinder Mohan Bhatia, a retired rear admiral. Armaris assumes overall prime contractor responsibilities for the Indian Navy’s submarine program. The company will supply technical advisers while the first submarine is built and deliver technology, hull elements and combat systems. DCN and Spain’s Navantia hold technical responsibility, with DCN acting as design authority. UDS International, an Armaris subsidiary, will supply the Subtics combat system, comprising Thales underwater sensors, optronics, electronic warfare systems, missile interface and communications. Thales’ contract share is 600 million euros ($733.6 million). The Subtics combat system accounts for half of the contract value, and the remaining half goes to the industrial side, split between DCN and Navantia. The Spanish company will receive 30 percent of the industrial side. MBDA hopes the Scorpene deal will lead to sales to the Indian Army, Air Force and Navy. The Indian deal has spurred inquiries from Saudi Arabia, United Arab Emirates and Venezuela, which are interested in submarines, a European industry executive said. The Indian sale means the Scorpene program is now making money, following sales of two boats each to Chile and Malaysia. Chile may buy a third Scorpene as a replacement.

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Pakistan-India:

Don't ditch Iran

India and Pakistan today share an identical experience, something they have very rarely done in the past 58 years. They are both under growing pressure to side with the United States in its escalating diplomatic-political confrontation with Iran, and in particular, to abandon the proposed Iran-Pakistan-India (IPI) gas pipeline. They are also being offered inducements to "sweeten" the coercion.
Pakistan and India should do everything within their power to resist Washington's pressure. This Column argues that not doing so would deeply compromise the interests of their own peoples, besides closing avenues to long-term cooperation between South Asia, and West, Southwest and Central Asia, with all its tremendous potential benefits.
Iran has become a test case for Indian and Pakistani diplomacy, and for the independence of both states' foreign policies. The reason is simple. The US has unilaterally decided that Iran is -- like Iraq was 15 years ago, and again, three years ago-hell-bent on acquiring weapons of mass destruction (WMD). Washington is going all-out to isolate Iran and have its nuclear activities referred to the United Nations Security Council for possible sanctions. The crunch could come next Monday when the board of governors of the International Atomic Energy Agency (IAEA) meets in Vienna. It alone can refer Iran to the Security Council.
There are two differences between the Iranian and Iraqi cases. The US has demonised the Iranian government right since the Islamic Revolution of 1979, regardless of the political changes under way there, especially in recent years. It declared Iran a "rogue state" just as it was emerging from the shadow of Ayatollah-style Islamic extremism.
By contrast, Washington backed Saddam Hussein during the Iran-Iraq war of the 1980s, passed on vital intelligence to him, and condoned his use of chemical weapons against civilians -- before turning against him.
Secondly, the US, with Britain's collusion, built up some sort of a case in 2002-03 that Iraq had, or was about to make, WMD. Most sensible people didn't fully believe this or the sexed-up intelligence on which it was based. They were soon vindicated. Now, even Colin Powell says he regrets having made a false report on Iraq's WMD.
However, not even a remotely plausible case has been made that Iran has WMD or that its nuclear programme has a military component. The IAEA has repeatedly given Iran a clean chit. In its latest reports, it concludes, on the basis of tests, that the traces of enriched uranium detected two years ago at Iranian nuclear facilities are attributable to equipment imported from Pakistan. Repeated inspections have found no evidence that Iran is running a clandestine nuclear weapons programme. But the US dismisses these and the fact that Iran, unlike Saddam's Iraq, has cooperated with the IAEA.
It's perfectly legitimate to enrich uranium for peaceful purposes under the Nuclear Non-Proliferation Treaty and other laws. Iran could of course use enriched uranium for military purposes in the future. But that's a matter of intention. Negotiated ways could be found to prevent Iran from realising that intention. But the US has already pre-judged Tehran's intentions as unalterable, and decided that sanctions are indispensable.
Washington is being profoundly, paranoically, irrational. It has seriously misjudged the international mood. Unlike Saddam's Iraq, Iran enjoys a fair amount of goodwill the world over. It won't be easy to isolate it. Regrettably, Washington is encouraged by the pusillanimity of the European Union-3 (Germany, France and Britain) and the inconsistent approach they showed in their two years-long negotiations with Iran.
In 2003, the EU-3 persuaded Iran to suspend uranium enrichment. Iran also signed the IAEA's tough Additional Protocol that year. But the EU-3 missed an agreed deadline (this past July 31) to propose a political and financial incentives-based deal to Iran. Actually, the EU-3 had developed a package on the assumption that Ali Akbar Rafsanjani would win the presidential election. When he lost, they hardened the deal's terms and demanded that Iran permanently renounced uranium enrichment. Iran refused.
The crisis worsened when the IAEA reported Iran had produced seven tonnes of uranium hexaflouride gas at Isfahan. (The gas can feed enrichment centrifuges at another facility, in Natanz. But Iran has not started enrichment yet.)
The EU is reluctant to refer Iran to the Security Council. So are two-thirds of the IAEA's 35-member board -- including Pakistan and India, besides 13 other Non-Aligned countries. Russia and China are even more reluctant to sanction Iran. Russia is building a nuclear power station at Bushehr and says Iran hasn't violated the non-proliferation regime. The IAEA has always taken decisions by consensus -- which won't be possible on Iran. So the US is pushing for a change in procedure, to voting.
To do this, Washington must split the Non-Aligned Movement group in the IAEA board, currently headed by Malaysia. NAM adopts a unanimous position at the IAEA. It defends Iran's "right" to enrich uranium for peaceful purposes. Malaysia declares this to be "basic and inalienable".
The Iran issue has become a symbol of Third World defiance of bullying by the First World, led by a power that has no intention of disarming its own nuclear weapons. It goes without saying that Iran should not make nuclear weapons. But its legal right to civilian nuclear energy must be defended -- whatever one's reservations about nuclear power as an energy technology, often expressed in this Column.
The US is mounting pressure on India, Pakistan and other states to change their stand on Iran. It has challenged India, with Russia and China, to take the leadership in isolating Iran. It has reportedly offered incentives to Pakistan through civilian nuclear cooperation. Both governments have shown signs of vacillation, especially on the IPI pipeline. India's vacillation became evident during Prime Minister Singh's July visit to Washington, when he questioned the pipeline's feasibility on the ground of high investor risk.
India and Pakistan must stand firm behind Iran and the pipeline -- on principle. They should know that Washington is overplaying its hand and will probably fail at the IAEA board. The nuclear allurements Washington is holding out to India and Pakistan cannot possibly promote economically viable or environmentally sustainable energy paths.
The IPI pipeline makes a lot of sense -- with energy conservation caveats added. It will deliver natural gas at less than half the cost of gas pumped from Turkmenistan. The IPI pipeline is not just an economic project. It will open new political vistas through fruitful cooperation between West and Central Asia, on the one hand, and South Asia, on the other. It will spur closer integration of these regions. Ultimately, it's in such integration that India's and Pakistan's future lies, not in subordinate partnerships with the US.
A final word. The US is already facing enormous difficulties in occupied Iraq. If it attempts a diplomatic-political, and especially military, misadventure against Iran as well, its plans for Empire could come crashing down. Iran is a strong middle power, has a vibrant economy, and the second largest known oil reserves after Saudi Arabia. Culturally, Iran is flourishing. Democracy has imparted some popular legitimacy to its government.
The US will find it hard to humble Iran through coercion. Pakistan and India would be disastrously mistaken to overestimate American power. That's one more reason for standing firm.
The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi

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Should Mohammad Afzal die?

Three judicial pronouncements have been made on the Parliament attack case including the latest Supreme Court judgment. But certain questions are still unanswered: Who attacked Parliament and what was the conspiracy? On what basis did the NDA government take the country close to a nuclear war? What were the roles of the state task force of Jammu and Kashmir and special cell of Delhi police investigating the cases? Given the momentous nature of these questions, for the future of Indian democracy nothing less than a Parliamentary enquiry is necessary to provide the answers.

by Nirmalangshu Mukherji

The Supreme Court delivered its judgment on the case relating to the December 13, 2001 attack on Parliament on August 4, 2005. It acquitted S A R Geelani and Afsan Guru from all charges, and reduced the sentence for Shaukat Hussain Guru, absolving him of all charges of conspiracy. However, it upheld the judgment of the high court in sentencing Mohammad Afzal to death for actively participating in the conspiracy to attack Parliament and waging war against the Indian state. Afzal is characterised as a "menace to the society", whose "life should become extinct" to satisfy "the collective conscience of the society."¹
Within a day, the editorial of a respected newspaper - known for its coverage of issues of rights and justice - commented on this judgment. It took a characteristically human view of the verdicts on Geelani, Afsan and Shaukat. For Afzal, however, the paper joined the judges in speaking on behalf of the "collective conscience of the society": "there is no warrant for any special sympathy for Mohammad Afzal whose role as a conspirator in the Parliament attack case - which has been detailed by the prosecution and confirmed by three courts of law - has been established beyond a shadow of doubt."²
With three of the "estates of democracy" surrounding him, Mohammad Afzal has little chance of escaping the hangman. More significantly, as the noose tightens, Afzal will die in silence. Yet, there is the legislature - the first estate. Is there a case for Mohammad Afzal before the forum of the people?

Confession for the State
The judicial proceedings recorded two occasions on which Mohammad Afzal spoke before the law: his confessional statement before the police and his statement under Section 313 of the Criminal Procedure Code. There was also the "disclosure statement" recorded by the police soon after his arrest. But, disclosure statements by themselves are not admissible as evidence.
In his confessional statement, Afzal narrated the entire conspiracy and the operational details of the attack on Parliament. I wish to draw the attention to the following part of the story of conspiracy.³ It begins with Maulana Masood Azhar, the leader of Jaish-e-Mohammad, based in Pakistan, instructing, at the instance of the Inter-Services Intelligence (ISI), one Ghazi Baba, the supreme commander of the outfit in Kashmir, to carry out actions on important institutions of India. Ghazi Baba directed one Tariq Ahmed to arrange for an operation. Tariq got in touch with Mohammad Afzal and motivated him to join the jehad for the liberation of Kashmir. Afzal met Ghazi Baba and the plan was worked out. It was going to be a joint operation of Jaish-e-Mohammad and Lashkar-e-Toiba. Begin- ning with one Mohammad, Afzal arranged for several militants - Haider, Hamza, Raja and Rana - to bring huge quantities of arms, explosives and a laptop computer to Delhi into pre-arranged hideouts. In Delhi, the team got in touch with Afzal's cousin, Shaukat Hussain Guru, Shaukat's wife Afsan Guru and S A R Geelani, a lecturer of Arabic in Delhi University.
In the beginning, the terrorists kept their options open between the Delhi assembly, UK and US embassies, Parliament and the airport. Reconnaissance was conducted accordingly. However, Ghazi Baba instructed them over satellite telephone to attack Parliament. In a final meeting on the night of December 12, 2001, the militants handed over Rs 10 lakh to Afzal, Shaukat and Geelani for their part in the conspiracy; they also handed over the laptop to be returned to Ghazi Baba.
This story was presented by the police, argued for by the prosecution, propagated repeatedly in full colours by the print and the visual media for the past three and a half years, and ratified by two courts of law. The prosecution's story was transformed into a telefilm by Zee TV. "The film was shown to the then prime minister and then the home minister, and the media recorded their approval of the film", Nandita Haksar reports.⁴ The film was telecast repeatedly before the first judgment on the case was delivered (December 13, p 27 for more).
Apart from Afzal's confessional statement, there was never an iota of independent evidence corroborating the story just sketched (December 13, pp 41-44). Citing "incontrovertible evidence" on the floor of Parliament and holding Pakistan responsible for the attack, the government mounted a massive military offensive that brought India and Pakistan to the brink of war with fingers on the nuclear trigger. Nearly 10,000 crore of rupees were spent and 800 soldiers died in the war effort. Reportedly, over 100 children died and many farmers lost their livelihoods due to heavy mining in the border areas. "After the unfortunate incident," the high court observed, "the clouds of war with our neighbour loomed large for a long period of time," "the nation suffered not only an economic strain, but even the trauma of an imminent war."⁵
The Supreme Court has now set aside Mohammad Afzal's confessional statement in the following words: "All these lapses and violations of procedural safeguards guaranteed in the statute itself impel us to hold that it is not safe to act on the alleged confessional statement of Afzal and place reliance on this item of evidence on which the prosecution places heavy reliance" (SCJ, pp 158-59).
With the confession set aside, the story of conspiracy linking ISI, Masood Azhar, Jaish-e-Mohammad, Lashkar-e-Toiba, Ghazi Baba, Tariq, and the rest, disappears from the judgment of the court. All we learn from the judgment is that five heavily armed men with sundry names attacked Indian Parliament and died, and that Mohammad Afzal participated in the conspiracy (SCJ, p 193). Period. In the two weeks since this judgment, the entire media has failed to mention this enormous fact.
The court's rejection of the confession has two parts. In the first, it mentioned a series of objections raised by the defence which the court found "plausible and persuasive" (SCJ, p 149). However, the court held that "it is not necessary to rest our conclusion on these probabilities," since, in the second part, the court found some direct reasons to set aside the confession. The investigating agency, namely, the special cell of the Delhi police, violated even the minimal safeguards sanctioned under the otherwise draconian POTA. These included the denial of legal assistance to the accused after POTA was introduced in the case, the failure to inform any relative,⁶ taking the accused back to the police custody after the confession, and the failure to give the confessor sufficient time to reflect before the confession (SCJ, pp 150-58). According to the court, these violations themselves have a "bearing on the voluntariness of confession" (ibid, p 158).
Why were all these basic safeguards systematically violated? For an answer, it is worth discussing the "probabilities" which the court found "plausible and persuasive"; they lead us far beyond the restricted legal window through which the court looked at the Parliament attack case. For brevity, we discuss just the issue of the timing of the confession (See December 13, pp 86-90, for more).
The confessions were recorded on December 21, 2001, after POTO was introduced in the case on December 19. As noted, Afzal and Shaukat allegedly made disclosure statements immediately after their arrest on December 15, 2001. Displaying incredible loquacity, both Afzal and Shaukat had apparently poured out everything they knew about the conspiracy. Following the disclosures, the police had already gathered most of the alleged facts of the case before December 19. The confessions themselves did not contain anything that was not already available to the police on independent investigation based on the earlier disclosures (SCJ, p 148). Why then were the confessions, allowed by POTO, needed?
More importantly, "there was no perceptible reason why the accused should not have been produced before a judicial magistrate for recording a confession under the provision of Cr P C" (ibid, p 148; also, p 59). According to the court, the defence held that the accused were "not prepared to make the confession in a court and, therefore, the investigating authorities found the ingenuity of adding POTA offences at that stage so as to get the confession recorded by a police officer according to the wishes of the investigators" (ibid). As noted, the court found this argument "plausible and persuasive".
Until alternative explanations are offered, the following picture emerges. The government wanted to use the 'window of opportunity' offered by the attack on Parliament to go to war against Pakistan (December 13, pp 5-13). After the investigations were virtually over within days after the attack, there was no evidence to link the attack with Pakistan-sponsored terrorism. Hence, POTO was belatedly introduced on the December 19; soon after, the government mobilised its troops. Afzal was made to confess before the media on the December 20 so as to lend credibility to the official confession to follow on December 21. The eminent lawyer Shanti Bhusan suggested that "the police failed to crack the case" as "all the five militants died in the attack". So the police "framed people" in order "to create a conspiracy case" for the government to take the country "to the brink of a nuclear war".⁷
Once POTO was introduced, Rajbir Singh, an assistant commissioner of police in the special cell was made the investigating officer (IO) of the case: "Singh was already under a cloud when the home ministry, then under L K Advani, appointed him to head the investigation into the attack on the Indian Parliament".⁸
The appointment was technically correct, yet one wonders if it was proper to appoint such a junior officer as IO in this immensely complex and sensitive case.⁹ The modus operandi of securing the confession throws light on the issue. With ACP Rajbir Singh as IO, the confession was obtained by the DCP Ashok Chand in the special cell itself. It is not surprising that legal assistance was not offered, no relatives were informed, and that Afzal was taken back to police custody on some pretext. Things stayed within the special cell, no chances were taken. Mohammad Afzal was a pawn in the designs of the state.

Trial by Design
The introduction of POTO also allowed the trial to be held in the designated special court for POTA. The Indian law ministry appointed Shiv Narayan Dhingra as a special judge: "by the 1990s, he was handling cases of terrorism and had earned the name the hanging judge".¹⁰ The trial began in June 2002 in an atmosphere in which the trauma of an imminent war and the smoke from the pogroms in Gujarat hung over the nation, the country was baying for the blood of the accused after a massive propaganda by the police and the media,¹¹ and POTA had become the law of the land.
Very few lawyers were willing to oblige: most "did not want to be associated with the Parliament attack case".¹² Moreover, the special judge ordered a 'fast-track' trial in this immensely complex case. The trial lasted just over five months in which the prosecution presented 80 witnesses. It is hard to see how a fair trial could be accomplished under these conditions.
The defence of Mohammad Afzal, the key figure in the state-sponsored story of conspiracy, suffered the most. With great difficulty, Geelani's defence managed to produce some witnesses; Afzal had none. He had no legal defence in the period between his arrest on December 15, 2001 and the filing of the chargesheet on May 14, 2005; in other words, no counsel had studied the complex case. When he "declined to engage a counsel on his own," the special judge appointed the noted criminal lawyer Seema Gulati, who took charge on May 17 along with her junior Neeraj Bansal (SCJ, p 139).
On June 5, all the defence lawyers agreed not to dispute postmortem reports, MLCs, and documents related to recovery of guns and explosive substances at the spot resulting in "dropping of considerable number of witnesses for the prosecution". The court did not dispute the contention of the defence counsel at the Supreme Court that Gulati "took no instructions from Afzal or discussed the case with him". Taking a strictly legalistic view, the court merely held that the "counsel had excercised her discretion reasonably. The appellant accused did not object to this course adopted by the amicus throughout the trial" (SCJ, p 140). On July 1, Gulati "filed an application praying for her discharge from the case citing a curious reason that she had been engaged by another accused Gilani" (ibid, p 140).
On July 2, Gulati's junior Neeraj Bansal was appointed amicus. Afzal protested against this nomination on July 8 and submitted a list of four senior advocates. Since none was willing to take up the case, Bansal continued as amicus for the rest of the trial. "In capital cases", Ram Jethmalani observed, "particularly those that arouse public prejudice and anger against the accused making it difficult for them to arrange for their own defence, it was the duty of the court to provide adequate defence at state expense". In response, taking a strictly legalistic view, the Supreme Court held that "taking an overall view of the assistance given by the court and the performance of the counsel, it cannot be said that the accused was denied the facility of effective defence" (ibid pp 141-42).
The amicus, Neeraj Bansal, did not even pay a visit to his client: "his presence and participation have caused confusion and prejudice vitiating the trial," Jethmalani observed.¹³ Afzal's wife Tabassum says, "The court appointed a lawyer who never took instructions from Afzal, or cross- examined the prosecution witnesses. That lawyer was communal and showed his hatred for my husband".¹⁴ The Supreme Court held that the "criticism against the counsel seems to be an afterthought raised at the appellate stage" (SCJ, p 139). Where else could it be raised and who could have raised it at the trial stage?
These concerns assume immense significance now that the Supreme Court has sentenced Mohammad Afzal to death on the sole basis of circumstantial evidence admitted in the trial. We must also note that this body of evidence was presented by an investigating agency widely known for false arrests and fake encounters.¹⁵ In the Parliament case itself it is now clear that the special cell tried to frame at least three innocent persons. Earlier, the high court had mentioned the production of false arrest memos, doctoring of telephone conversations and illegal confinement of people to force them to sign blank papers. As we saw, it is evident that false confessions were extracted by force.
This is not the place to study in detail the Supreme Court's handling of the circumstantial evidence against Mohammad Afzal. We will cite just two pieces of evidence to illustrate the general problem.
(1) The court held that Afzal knew the deceased terrorists since he identified them. Afzal also admitted the same in his confession. With the confession set aside, the sole evidence against Afzal is that he identified them in the morgue. The evidence has two parts: the identification memo prepared by the police (PW76), and Afzal's signature against the column 'identified by' in the postmortem report. As for the identification memo, the court relied on it because "there was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo" (SCJ, p 161); in other words, Neeraj Bansal did not object. As for the signatures, the defence counsels decided not to dispute the postmortem reports, as noted. It did not materially affect the other accused, but Afzal is likely to pay with his life for this decision taken without his consent. In his statement u/s 313 Cr P C, Afzal said: "I had not identified any terrorist. Police told me the names of terrorists and forced me to identify" (December13, p 165).
(2) It is a crucial part of the prosecution's story that the police explain how they reached Mohammad Afzal beginning with the site of attack; otherwise, the arrests would seem to be pre-planned rather than based on a chain of leading evidence.¹⁶ The prosecution claimed that the police finally reached Afzal through a sequence of arrests beginning with Geelani, whom the police could trace first because he held a mobile phone registered with the telecom company Airtel. But the letter from Airtel furnishing the call records and Geelani's residential address was dated December 17, 2001; all the accused had been arrested by December 15. How could the police arrest Geelani two days before it got the phone records that "led" them to him? This letter poses other serious problems for the prosecution's case regarding the actual date on which POTO was introduced in the case (December 13, pp 74-86). However, the court did not "consider it necessary to delve further" into this letter since "no question was put to PW35 - the security manager of Airtel" (SCJ, p 30). Further, "none of the witnesses pertaining to the FIR were cross-examined" (SCJ, p 31).
Whatever be the legal merit of the court's judgment on Afzal, the question arises as to whether there is a moral warrant for capital punishment on the basis of a trial like this.

A Surrendered Militant
The question of moral warrant arises from another more insidious direction. Given the involuntary nature of the confession, it is pertinent to reflect on the fact that Afzal agreed to sign the document at all. Was Afzal a free agent during those early turbulent days right after the attack when he was in police custody before and after the making of the confession? Could he afford to refuse the recording of his confession at that stage when he had already done the rounds with the police, allegedly incriminating himself in everything that the police wanted?
These queries are compounded by the fact, as repeatedly noted in all the judgments, that Afzal is a surrendered militant. Afzal was not only supposed to report regularly to the security forces, but was also under their surveillance. How could such a person mastermind and execute such a complex conspiracy? And how could a terrorist organisation rely upon such a person as the principal link for their operation? Did he enter into some arrangement with the security forces to buy his survival? Some dark answers to these questions begin to form when we look at Afzal's statement 313.
The statement 313, unlike confession under POTA, is made by an accused before the court rather than before a police officer; also, this statement is made when an accused is in judicial custody, not in police custody. The special judge of the POTA court recorded the fact that "a surrendered terrorist has to mark his attendance with regular intervals at the STF, J&K" (para 222). "STF, J&K" stands for State Task Force, Jammu and Kashmir, a shadowy counter-insurgency outfit of the state. To our knowledge, this fact is stated only in Afzal's statement u/s 313 Cr P C. With this citation, therefore, the Special Court judgment lend credibility to the statement. Furthermore, there are manifest instances of honesty and truthfulness in Afzal's statement 313. For example, Afzal did not shy away from admitting the possibly incriminating fact that he brought Mohammad from Kashmir and that he accompanied Mohammad when the latter purchased a second-hand ambassador car. When his lawyer attempted to deny this fact during the trial, Afzal intervened to insist that he indeed accompanied Mohammad (SCJ, p 182).
Pursuing the relevant paragraph of this statement then, we learn about the circumstances of Afzal's surrender to BSF in 1993 in detail. Afzal states: he was frequently asked by the STF to work for them; he often paid large sums of money to the STF to avoid and/or escape detention; he was detained as late as in 2000; he was asked to become a special police officer, which is an euphemism for 'police informer'; he met one Tariq in the STF camp; this Tariq was already working for the STF and he wanted Afzal to join the force as well; Afzal was introduced to one Mohammad by Tariq also in the STF camp; Tariq persuaded him to take Mohammad to Delhi from where Mohammad was planning to go abroad (December13, pp 90-92).
A number of disturbing consequences follow. First, Afzal was in close touch with the security agencies throughout the period 1993 to at least 2000. Second, three of the persons allegedly involved in the attack - Tariq, Afzal, Mohammad: the mastermind, the link, the leader of the attack - originated from the STF camp itself. In addition, we now know of a press report from Thane that four terrorists including one 'Hamza' - the same name as one of the terrorists killed in the Parliament attack - had been arrested by the Thane police in November 2000, and handed over to the J and K police for further investigation.¹⁷
Grave, unanswered questions surround the Parliament attack case even after three judicial pronouncements. Who attacked Parliament and what was the conspiracy? On what basis did the NDA government take the country close to a nuclear war? What was the role of the State Task Force (J and K) on surrendered militants? What was the role of the special cell of Delhi police in conducting the case?
It will be a travesty of justice to hang Mohammad Afzal without ascertaining answers to these questions. Given the momentous nature of these questions, for the future of Indian democracy nothing less than a Parliamentary inquiry is needed to address them (December 13, pp 96-103).

Notes

¹ Judgment of the Supreme Court of India (henceforth, SCJ), August 4, 2005, pp 203-04.
² The Hindu, edit page, August 6, 2005.
³ For more details, see my December 13: Terror over Democracy (henceforth, December13), Bibliophile South Asia, New Delhi, 2005, pp 38-41.
⁴ Nandita Haksar, 'Tried by the Media: The S A R Geelani Trial', Crisis/Media: Sarai Reader 04, Centre for Studies in Developing Societies, Delhi, February 2004, p 161.
⁵ Judgment of the high court, Murder Reference 1 of 2003, October 29, 2003, para 448.
⁶ The high court had observed earlier that Afzal's arrest memo was in fact signed by Geelani's brother, Bismillah, while Bismillah was himself in 'illegal confinement' and he was forced to 'sign papers' (judgment of the high court, para 251).
⁷ Tehelka: The People's Paper, October 16, 2004, p 21.
⁸ Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.
⁹ In fact, 'It is indeed surprising thatŠ the investigations were not handed over to the premier investigating agency, the CBI, but to an agency whose capacities are so much in doubt', Trial of Errors: A Critique of the POTA Court Judgment on the 13 December Case, Peoples Union for Democratic Rights, Delhi, February 2003.
¹⁰ Basharat Peer, 'Victims of December 13', The Guardian Weekend, July 5, 2003.
¹¹ See my 'The Media and December 13', Znet South Asia, September 30, 2004.
¹² Nandita Haksar and K Sanjay Singh, 'December 13', Seminar 521, January 2003.
¹³ Written submissions on behalf of S A R Geelani, Murder Reference 1 of 2003, presented by Ram Jethmalani, senior advocate.
¹⁴ 'A Wife's Appeal for Justice', Kashmir Times, October 21, 2004.
¹⁵ For a recent review of the functioning of the special cell, see my 'A Very Special Police', Znet, June 29, 2005.
¹⁶ See December 13, pp 70-80 for a detailed discussion of the murky business of arrest memos.
¹⁷ 'What's In a Name?', Thaneplus, The Times of India, Pune edition, December 26, 2001.

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