The Ghost of the Middle Ground

Uncertainty, Ambiguity and the Media Response to Efforts to Secure a Commutation of the Death Penalty for Mohammad Afzal Guru and An Enquiry into the Events of December 13

Shuddhabrata Sengupta, January 1, 2007 (posted earlier on the Sarai-Reader List)
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‘Now is the Winter of Our Discontent made Summer by the Pleasing Light of Television’

At the beginning of each new year, it is customary to take stock of what has happened in the last 365 days, and reflect on options for the future. I don’t want to speak for the entire year (let’s leave the year end newspaper and magazine supplements and the TV round-ups to do that). But I do want to look at this bleak now, the ongoing “winter of our discontent”, especially as it has played out on that hallowed and late, lamented entity called the ‘middle ground’.

This ‘middle ground’ is a territory currently under the occupation of large bastions of the mainstream media in India. It was on the parched soil of the ‘middle ground’ that the beast called public opinion was so eagerly sought to be beaten into shape (or pulp, depending on your point of view) in a daily gladiatorial during the course of the last few months. While this has always been the case, it did come into especially sharp focus ever since the question of the execution of Mohammad Afzal Guru came back on to what is sometimes called the ‘national agenda’ in late September – early October 2006. What began during our brief autumn rapidly gathered momentum as winter set in.

The thick fog that descends on Delhi with the onset of deep winter is a time where plots are laid ‘in deadly hate’, and ‘dangerous inductions, drunken prophecies, libels and dreams’ are aired by means of strategems that have every reason to be called ‘subtle, false, and treacherous’. Had William Shakespeare been writing a draft of Richard the Third in Delhi during an early twenty first century winter, he might have set the bleak iambs of the opening soliloquy in a television studio, and made the actor speaking them wear the pressed suits of a certain variety of senior journalist or news anchor, or the uniform or distinguished plain-clothes attire usually to be found adorning the person of an operative of the special cell of the Delhi police, or the Intelligence Bureau. Perhaps there might even be some actors who could essay both roles (a certain kind of journalist and intelligence operative) with practised ease, because there is so little left nowadays, to distinguish between the two functions. Call it what you will, embodied intelligence, or embedded journalism.

From the snuff-porn footage of the last minutes of a hated dictator’s life, even as a noose is placed on his head, to unexamined admissions of torture on prime time, to lengthy extracts from a confession made under duress in police custody – our television sets and newspapers have brought home to us in the last few weeks – almost daily offerings from a bitter harvest made up of desparate attempts to manage and manipulate our perception of the times we live in. It makes me wonder whether it is the opaque nature of winter fog in Delhi that makes mirages, smoke-screens and other optical distortions so natural a part of our current media landscape? The more you watch it, the more the news from Delhi seems to resemble the city’s weather report. Everything seems a little foggy. You can’t quite make out what you see. And there are lots of fatal accidents.

There is undoubtedly a customary chill in the portents of December in Delhi. In December 2000, the absurd theatre of the now almost forgotten attack on the Red Fort was built on the foundations of a bizarre script. The plot featured a corpse that had undergone a post-mortem identity crisis (the dead Kashmiri ‘terrorist’ called ‘Abu Shamal’ turned out to be a migrant youth from Western Uttar Pradesh). A harvest of mobile phone numbers found miraculously at the scene of the crime written on a slip of paper instantly delivered suspects. An unexplained connection in the form of a link between the prime suspect, ‘Ashfaq’, a Pakistani illegal immigrant, (currently awaiting, like Mohammad Afzal Guru, the execution of a death sentence in Tihar Prison) and a man called Nain Singh, who happens to work as a field officer with the Research and Analysis Wing of the Cabinet Secretariat (and in whose house ‘Ashfaq’ stayed for months)lingered on like an obstinate ghost. In addition there were other now familiar props like identity cards and computers.

[For a thorough, and excellently researched report on the ‘Red Fort Case’, and the many resonances between it and the ‘Parliament Attack Case’ see ‘An Unfair Verdict: A Critique of the Red Fort Attack Judgement’ published by the Peoples Union of Democratic Rights (PUDR) on December 22, 2006. A press release summarizing the main points of this report is available at http://www.pudr.org]

On 13 December 2001, in the now celebrated ‘Parliament Attack’ case, (and in the course of what followed in the last five years) we once again had an attack on a landmark in Delhi laden with symbolic significance, dead men with mixed up identities, identity cards, mobile phone numbers and anomalous call records, discrepancies between confessions made in police custody and statements made under section 313 of the Criminal Procedure Code (like in the Red Fort case), the strange appearance and apparent involvement of people like Davinder Singh of the STF in Jammu & Kashmir, who are part of the security and intelligence agencies (once again, like Nain SIngh, the RAW operative in the Red Fort case) and a man (Mohammad Afzal) waiting to know in prison if he will hang.

Like a tarted up Hindi movie sequel broadcast to boost TRP ratings, December 2001 could almost be a re-make of the December 2000, that played once again on our TV sets in December 2006. I am writing this lengthy text, because I feel the need to find a handle with which I can get a grip on the way in which images and fragments of processed reality from large sections of media holds our imagination and our consciousness hostage. I am trying and understand what makes the fog of news that emanates from Delhi in December smell so acrid, taste so bitter, each time.

Complexity and its Discontents

Most readers of this text would be familiar with the fact that efforts to stall and commute Mohammad Afzal Guru’s impending execution (which have gathered a great deal of momentum over the past three months) have met with a variety of different responses. On the one hand more than two thousand people have signed a total of at least three online petitions in favour of the commutation of the death sentence. Dharnas, demonstrations and public meetings have been held in Delhi, in Kashmir and elsewhere in support of Afzal Guru. A curative petition arguing that Afzal did not have access to adequate legal representation at the crucial trial court stage has been filed in the Supreme Court on December 13 this year. Numerous texts and articles have been written in defence of the efforts to secure a commutation of the death sentence. They have been published in print in newspapers, magazines and journals and circulated online, on lists, blogs and webpages.

Even a book like ’13 December- A Reader: The Strange Case of the Attack on the Indian Parliament’ (recently published by Penguin India) needs to be seen as part, and only a part of the dispersed and disparate efforts by very different kinds of people (from different walks of life, and with different viewpoints and ideologies) to ensure that a gross violation of justice not be allowed to happen in the name of what the Supreme Court in its judgement on the case has called the ‘collective conscience of society’.

If anything, the kind of questioning voices that might have been muted earlier but are now beginning to make themselves heard clearly, should make us sit up and take notice of what is evident to any one who is observant. Clearly, the “collective conscience of society” at least with regard to Mohammad Afzal Guru’s fate is a fractured entity. And even if those of us who speak in his favour are a minority today (although our numbers are steadily growing) it is presumptuous on anyone’s part, be they commentators in the media, politicians or even a bench of the Supreme Court’s, to assume that there is a unanimous consensus in our society on the question of whether or not, Mohammad Afzal Guru, or indeed anyone at all, should be hanged to death.

On the other hand, we have seen a virulent flood of sms messages broadcast live on television that has occasionally voiced demands which go to the extent of saying that not only Afzal but all those speaking in his favour be also summarily executed in public. We have had the Bharatiya Janata Party organizing ‘Hang Afzal’ rallies in Delhi and elsewhere. We have had former intelligence agents, politicians and journalists of several descriptions twisting and turning themselves around to make vitriolic statements and non-statements about the issue, the spawning of several anti-Afzal blogs and webpages, the All India Anti Terrorist Front orchestrating the return of the medals awarded to the families of the security personnel who died on 13 December 2001, and the carefully calibrated continuation, through a series of planted stories, of the media trial of Mohammad Afzal Guru on television news channels.

In what follows, I will try and analyse and comment on a variety of different responses to the efforts to have Afzal Guru’s sentence commuted. This is not an exhaustive or comprehensive attempt to index and analyse all that has been written and spoken, but I hope to give a reasonably thorough picture of the directions that the responses have taken. If nothing else, they point to a rich and variegated picture of how the media, and the means of communication have become a space where a nervous and cornered apparatus of power is doing all it can to create a smokescreen.

On Watching Television, Carefully

Unfortunately, the more it tries to work the smoke machine, the more it makes itself visible to our eyes. I am by no means the only person this is apparent to. A lot of people like me are constructing detailed personal archives of the spin doctoring that is going on in print and on screen. We are reading newspapers with a tooth comb, browsing websites, recording television programmes, and we are beginning to recognize patterns, traces, tell tale signs. Each word, each image, each soundbyte is being carefully weighed and scrutinized, and often found wanting. In fact the intensity of high voltage media attention has not been able to generate a consensus, despite great efforts. This should surprise those media mandarins who believe that their ‘whatever it takes’ methods (to quote the tiresome CNN-IBN slogan) will automatically rally everyone around them. What they are getting instead is sustained, systematic attention from a number of patient, diligent and critical viewers. Sometimes that little spike in a TRP rating, or a readership survey is the worst news that a media mandarin can have. They might have been better off if less people took them as seriously, read and watched them as carefully as is being done now. Nothing that is published or broadcast today will go unnoticed. Besides which, there is the inconvenient fact that public memory is getting perversely long these days. Nothing that was published or broadcast a month or so ago, or five years ago will go forgotten. The media are being watched. Very carefully.

‘Extremism’ and ‘Moderation’

But the issues at stake in all of this are much larger and more serious than who scores how many points against which newspaper and media channel. Criticism and counter criticism are good things. Those of us who have been chipping away at the edifice of the received wisdom on December 13 welcome the scrutiny and the criticism that we have received from large sections of the mainstream press. The fact that the views of those who question the verdict of death penalty for Mohammad Afzal, or call for an enquiry into December 13, or who speak against Capital Punishment as such, are increasingly difficult to ignore is definitely a good thing. But a careful examination of the response to these views suggests that the respondents are not interested in taking on the substance of what is being said in the book (‘December 13: A Reader’ )and other allied materials but that instead they insist, (without evidence) that those who call for an enquiry into the events of December 13 only have the axe of an outrageously ‘extremist’ agenda to grind. This has been equated, variously with the ‘evacuation’ and even the ‘assassination’ of the ‘middle ground’ of reasonable opinion and behaviour.

This charge needs to be addressed seriously, and in what follows, I will attempt to examine the rhetoric that insists that those who have called for a re-examination of December 13 have somehow an ‘extremist’ agenda. But before I do that, it is wise to remember that one of the most effective strategies of dissimulation is to paint one’s adversaries as ‘extreme’. This automatically suggests that those calling others ‘extremists’ are the very soul and substance of moderation. Thus, those who have expressed discomfiture at the irrevocable finality of the death penalty are labelled ‘extremists’, while those howling for blood can claim for themselves the high moral ground of ‘moderation’. Those asking for answers to a set of unresolved questions are accused of ‘frightening intolerance’ (Barkha Dutt, ‘Death of the Middle Ground’ Hindustan Times), and of being ‘closed to debate’, (CNN IBN while those who insist that the debate on the official version of December 13 stands closed, arrogate to themselves the soul of complexity and sophisticated ambiguity.

Never mind the fact that the goal-posts of Barkha Dutt’s middle ground have shifted twice with breathtaking speed as autumn turned to winter. The first time was when she moved from a spirited defence of capital punishment against those called terrorists three days before Mohammad Afzal was originally supposed to hang (in ‘Battle For Life’, October 17, 2006) to a plea that Afzal’s life be spared, (in ‘Warning, Handle With Care’ on November 10, 2006) not because of any change in her perception of his crime, (for which she still demanded the ‘harshest punishment possible’), but because commutation could ensure that Kashmir would not go up in flames. The second time the middle ground moved for her was when she leapfrogged from a homily on the virtue of moderation, respect for ambiguity and the necessity for the media to situate itself within shades of grey (in ‘Death of the Middle Ground’, December 17, 2006 ) to a triumphant celebration of bias and subjectivity (in ‘Subject to the Truth’, December 23, 2006 ). In fact the middle ground moved so often and so quickly in these thirty six odd days (from October 17 to December 23) that Barkha Dutt almost became a televised blur.

[See, the following, in their order of publication, as given below, to follow the trajectory of this whirlwind

1. ‘Battle for Life’, October 17, 2006
http://www.ndtv.com/columns/showcolumns.asp?id=1061
2. ‘Warning, Handle with Care’ Third Eye, Hindustan Times, November 10, 2006
3. ‘Death of the Middle Ground’, Third Eye, Hindustan Times, December 17, 2006
4. ‘Subject to the Truth’, Hindustan Times, December 23, 2006
http://www.hindustantimes.com/news/181_1877176,00300006.htm ]

Lonely at NDTV?

A lesser mortal like me would be tempted to see a streak of cynical opportunism if not an absurd lack of consistency in the meandering logic of Barkha Dutt and others like her. However, since I have no access to the rarified atmosphere of ethical uncertainty that currently prevails in broadcast television, I would be the first person to plead guilty to the charge of having little or no understanding of the immense complexities that beset those who occupy the higher altitudes of broken news. Would it be asking for too much though, if we were to demand that when media luminaries like Ms. Dutt, who command a great deal of influence with the great Indian middle class, go so wrong in their own estimation as to subsequently do a one hundred and eighty degree volte-face from some aspects (from ‘kill the terrorist’ to ‘no, don’t kill the terrorist’, ‘long live shades of grey’ to ‘shades of grey be damned, three cheers for subjectivity’) of their publicly stated position, they also take us, their readers and viewers into confidence, and apologize for the consequences of their previous pronouncements. Just an occasional ‘sorry ji, galti ho gayi, I should not have asked for people to be hanged so easily’, said or written in public, might suffice as evidence of the sincerity of her rapid transformations. We, the people, will be content with that. Without that apology however, the corner of the ‘middle ground’ that Barkha Dutt says she represents seems way too ethically deficient to sustain anyone other than the likes of her. Until this is done, we can only commiserate, at a distance, with what must be the unbearable loneliness of having to take ‘unequivocally unpopular’ positions while having to work at NDTV.

The middle and lower depths of the middle ground

If Barkha Dutt occupies the high, sophisticated end of the ‘middle ground’, others, such as Sudheendra Kulkarni, Suhel Seth, Tavleen Singh, Sandhya Jain occupy the middle and lower depths of what is wont to describe itself as ‘reasonable behaviour’. These ladies and gentlemen have spent a lot of their time and energy venting their sorrow and their anger in different publications and fora (Indian Express, Asian Age, Pioneer, CNN-IBN) in response to the publication of ’13 December: A Reader’.

The Pioneer (13,12,2006) for instance, in a report on the book release of ’13 December : A Reader’ likened the views of those associated with this book to the recent holocaust deniers in Iran (notwithstanding my stated position, for instance, as being totally opposed to what I think is the crypto-fascist, and anti-semitic character of the current Islamist regime in Iran, whose defence by sections of the Indian left I find completely cynical and hypocritical).

Tavleen Singh (‘Arundhati’s Gimmick, Asian Age, 23 December 2006) grudgingly admits that there may be a point in ensuring that Mohammad Afzal need not hang, though she doesn’t tell us why she is ‘convinced that he is not the mastermind or even one of the main plotters of December 13’. In the same breath, she wants Arundhati Roy and her colleagues who have contributed to ‘December 13: A Reader’ deported for saying the same thing. The only difference between her position and that of Arundhati or of the other contributors to the book is that we are also asking a set of questions that Tavleen Singh finds ‘outrageous’, ‘sick’ and ‘vicious’. If, like Tavleen Singh, we admit that Mohammad Afzal is not likely to be the mastermind of December 13, we have to ask why there is such an effort being made to show that he is – to forge, hide and manufacture evidence, and to stonewall the demand for an enquiry. Our suspicions about the nature of the involvement of agencies of the state, and the consequent 13 questions, do not emerge from anything other than the suspicious way these agenices have been working overtime to manufacture an account of December 13 that is so ridden with holes and inconsistencies.

In other words, if we have doubts about Mohammad Afzal’s role, it is only natural for us to have doubts about the motivations of those who have been busy trying to write the script of that role over the last five years. Why then should our asking questions about the nature of that role lead to a demand for our deportation? Is it only because the asking of the questions once again focuses attention on the kind of area that Tavleen Singh, and others like her want us to look away from. Let me return Tavleen Singh the favour of a suspicion about motives. Does she have an agenda to distract attention away from the nature of our questions? If so, we would like to know why?

The people who have spoken against Afzal Guru’s death penalty have been called conspiracy theorists (notwithstanding the fact that the judgement of the courts in the case actually build upon and rely to a large extent on an elaborate conspiracy theory, and base their indictment of Afzal, circumstantially, and indirectly, through the charge of conspiracy, to the effect that he is as culpable as those who actually attacked Parliament on December 13, 2001). So our asking of a set of reasonable questions is ‘conspiracy theory’, whereas the court’s heavy handed reliance on a theory of conspiracy is infallible objective justice.

Kehar Singh Revisited

Commentators such as Sudheendra Kulkarni have taken us (whom he too calls ‘extremists’) to task for daring to suggest a parallel between the fates of Mohammad Afzal and Kehar Singh.

[See ‘If December 13th Was’nt an Act of Terror, what was it?’ by Sudheendra Kulkarni, Indian Express, December 17, 2006
http://www.indianexpress.com/story/18739.html ]

His argument is that some of us are not just content to criticize the dispensation that was around when his leaders (Messrs. Vajpayee, Advani & Co.) were in power, but actually have the temerity to suggest that even the trial of those accused of conspiring to assasinate Indira Gandhi, was in fact, to a large extent, a ‘show-trial’. Kulkarni is right, a reference to Kehar Singh’s hanging in tandem with the controversy around Afzal Guru, indicts the Congress regime in that case, just as the circumstances of December 13 indict the BJP led NDA

Sudheendra Kulkarni’s actual intent is to spin the issue around an NDA versus UPA axis. But we are clear that this is not an NDA versus UPA game for us. Most of those who are involved in publicly taking positions on the matter of Afzal Guru’s execution are willing to be made to play that game. Perhaps this causes some discomfort to those who, like Sudheendra Kulkarni, would like to see this issue played out on a purely ‘anti-NDA, anti BJP’ pitch. Sorry gentlemen, we are not interested. The game you offer us is a very boring one. We are not so obsessed with the depleting fortunes of a political tendency that is as morally bankrupt and bereft of ideas as the BJP that we feel the need to try and cosy up to its opposite number in order to carry the day. We have neither the need nor the desire to become tools in the hands of the current ruling party or their parliamentary allies in order simply to discredit their predecessors.

We are interested simply in talking about the structural issues that have been revealed by the December 13 trial. These structural issues have to do with the nature of the judicial process and the manner in which the so called ‘war against terrorism’ is being played out, regardless of who happens to be at the helm of affairs. They are not about whether one likes or does not like the BJP or the Congress or the so called Parliamentary Left, or even about how the the matter of Afzal’s sentence plays out in the context of the forthcoming UP elections.

I do think that the retention of capital punishment in any society allows for systemic distortions that express themselves in moments of crisis through crystallizations of the demand that someone or the other be ‘sacrificed’ in order to restore the public perception of the vitality of a morally bankrupt state. I do not think our courts, or any courts anywhere, are infallible, and I think that the so called ‘collective conscience of society’ that the courts gesture towards while mandating someone’s death are flimsy, provisional constructs that are vulnerable to pressures and anxieties of various kinds, not least of which include those emanating from large sections of the mainstream media.

For the benefit of Sudheendra Kulkarni, the positions taken in the book are not actually as extreme as he wishes them to be seen to be. At least with regard to the reference to Kehar Singh, we happen to be in moderate and respectable company. Even Justice M. L. Tarkunde, a respected jurist and former judge of the Bombay High Court (whom no one can in any right frame of mind accuse of ‘extremism’) is on record for having said that “The evidence against him (Kehar Singh) was so meagre that it would not support, as the saying goes, the hanging of even a dog.” Those who might doubt my word on this matter are advised to refer to an Amnesty International report titled ‘India: The Death Penalty’ published by AI (London) in October 1989 (AI Index ASA 20/13/89) where this statement is cited in print. I am merely saying that I hope we as a society are spared the predicament of having to condone once again, (in the case of Afzal) the hanging of someone, against whom the evidence was so meagure that it would not be in a postion to support even the hanging of a dog.

‘A Clique of Liberal Leftists’

We have been called, ‘a clique of liberal leftists with no constituency beyond the seminar halls of Delhi and Mumbai’, by the pioneer columnist Sandhya Jain on a TV channel (CNN-IBN) in a report that subtly endorses this point of view. Earlier, on October 5, CNN-IBN had reported that in the matter of the argument against the death sentence for Afzal Guru, the ‘entire nation’ was on one side, and a handful of NGO’s, writers and activists were on another. How the ‘entire nation’ got together and informed CNN IBN of its decision on the matter is not something that the channel has told us as yet.

This is the same channel whose senior editorial staff had spent several hours entreating some of us, on the 12th of December, to appear exclusively on their channel, or to ‘dignify television with our presence’, in order to recompense for their complicity in airing a clearly spin-doctored, so-called fragment of ‘hidden camera’ footage (to which I will turn to later). I suppose had we all agreed to play the part that was being scripted for us in the great ratings war between CNN-IBN and NDTV, then we would have suddenly transformed ourselves from a ‘clique that has no constituency beyond the seminar halls of Delhi’ to a ‘clique that has no constituency beyond the television studios of a pair of punch and judy news channels’.

In the midst of all this noise we must remember, however, that what is at stake here is someone’s life, and also, importantly, an attempt to demand a rigourus and honest account of what exactly transpired on December 13, 2001, and why South Asia was taken to the brink of war. These are serious questions, and must be looked at seriously, not with the nudge-nudge-wink-wink frivolity of a charmed circle of commentators, publicists and intelligence agents whose consensus on matters of what is called ‘national security’ is produced in the backrooms of Delhi’s media circus.

I might add here, that notwithstanding whether or not I think Afzal was denied his constitutionally guaranteed right to an adequate legal defence (and I do think he was denied that) my objection to capital punishment is not solely to do with my dissatisfaction with the judgement or with the merits of the prosecution’s arguments in the case of Mohammad Afzal Guru.

On Capital Punishment

For the benefit of anyone who might think otherwise, I am just as opposed to the sentence of capital punishment that has recently been awarded to ACP Tyagi (formerly with the Delhi Police) for his role in a death that took place in police custody.

Here, I think that the facts of the case clearly bear out the position that ACP Tyagi is indeed the primary culprit, and I do believe that anyone responsible for a death in police custody ought to be punished severely. Similarly, I have every reason to believe that Saddam Hussain was a tyrant and a cold blooded mass-murderer, but that does not mean that I agree with his recent execution, or the disgustingly voyeuristic manner in which it has been exhibited international as well as Indian media

My condemnation of custodian death, murder, or political genocide need not, and indeed does not translate into a desire to see ACP Tyagi, Sanotsh Singh (accused in the Priayadarshini Mattoo case) or Saddam Hussain hang. This is because I do not think that any good, whether preventive, deterrent, moral, ethical or compensatory can come from deliberately taking a human life, even when the accused stands convicted for a crime as heinous as custodial death. I am willing to argue this out, but that is a separate argument which I am sure needs to be pursued on another occasion – purely on the question of whether or not we should as a society retain capital punishment. It would have been far better had Saddam Hussain remained alive, and possibly had to atone for his deeds in lifelong detention, preferably in the exclusive company of other distinguished mass murderers like George Bush and Tony Blair. That might have been a step towards justice in Iraq.

I mention this here only to say that my opposition to the death penalty for Mohammad Afzal is based not only on my reasoned belief that he did not have an adequate legal defence at the trial court stage, but also because I would oppose it even if he were in fact given the benefit of the due process of a fair trial. Because I oppose capital punishment on principle.

The Courage of Sabrina Lall

This is important, because, contrary to Barkha Dutt’s charge that some of us have abandoned the terrain of ambiguity, I would actually like to insist that the ground I happen to occupy requires me on occasion to defend the right to life of even those, such as ACP Tyagi, or Saddam Hussein, or Dara Singh, whose actions I personally consider abohorrent. And that this defence is not constructed along ‘pragmatic’ or ‘tactical’ lines.

As far as the execution of Afzal is concerned, I am not interested in offering a consideration of whether or not Kashmir would go up in flames as reasons for the commutation of a death sentence (though others, such as A.G.Noorani have advanced this argument with commendable sophistication). I have to say that on this point, and on this point alone, I agree with Soli Sorabjee (who said in an NDTV panel discussion that he happens to be anti death penalty generally, but is pro death penalty, under the given circumstances, for Afzal – an exact mirror of Barkha Dutt who happens to be pro-death penalty generally, but has now discovered belatedly the virtue of an anti-death penalty position customized to Afzal). I agree with Sorabjee that saying “don’t hang Afzal because Kashmir will go up in flames” is not unlike saying “don’t punish those guilty for the massacre of Muslims in Gujarat because Gujarat will go up in flames”.

If we demand punishment, we must be prepared to do so regardless of local context, otherwise there would be no such thing as ‘equality before the law’. However, my reasons for arguing against the death penalty have nothing to do with tactical or pragmatic considerations. I am not saying that Afzal should not be hanged because otherwise Kashmir would go up in flames, just as I am not saying ACP Tyagi should not be hanged because this would sorely demoralize the Delhi Police which often uses third degree methods in police stations, or that Saddam Hussein should have been excused from his appointment with his hangmen so as to re-assure future tyrants and mass murderers.

I take comfort, in these bloodthirsty times, when SMS messages calling for public executions are broadcast live on television, from the sagacity and maturity that has been demonstrated by Sabrina Lall, the bereaved sister of the murdered Jessica Lall who has made a public statement to the effect that she did not desire the death penalty for Manu Sharma, her sister’s murderer, because she does not believe that his death would do anything to ameliorate her grief, and because she is satisfied knowing that Manu Sharma has to suffer long years of confinement, which in her view is a much greater punishment than death. She goes on to say that the sentence of death punished only the family and friends of the accused, not the accused himself, for his suffering actually ends with death.

[See, “Life in Jail for Manu Sharma” by Tanu Sharma and Krishnadas Rajagopal, Indian Express, December 21, 2006, http://www.indianexpress.com/story/19058.html and ‘I want Manu Sharma to Suffer’ by Shubha Shetty Saha, DNA, December 10 at http://www.dnaindia.com/report.asp?NewsID=1070152%5D

Regardless of the view that anyone of us takes on Mohammad Afzal’s exact role in the events of December 13, 2001, I wish that we could all have the wisdom and the courage to display even a degree of the maturity and compassion that I think is contained in Sabrina Lall’s response to the verdict handed down to her sister’s murderer.

I hope that those who have spent a lot of their time, intelligence, emotions and energy on television and print on the unrelated destinies of Mohammad Afzal and Jessica Lall in recent days might learn something from Sabrina Lall’s compassion and intelligence. There still might be some hope for the integrity and credibility of large sections of the mainstream media if that were to be the case. I hope they take some time now to listen, think and reflect on where we all have come today. And I hope, for their sakes, that Mohammad Afzal lives.

Who Else Wants Afzal Dead?

Actually, the consequentialist argument (the one based on ‘what will or will not happen if Afzal dies’ theory) leads to some very strange bedfellows. if you examine the news carefully, you will find that it isn’t just the BJP and M.S. Bitta of the All India Anti Terrorist Front who want Afzal dead as quickly as possible. There are reports of a number of jehadi groups in Kashmir, who have in fact demanded that Afzal not be spared, precisely because this would mean that Kashmir would go up in flames.

I quote here from a report available on the NDTV website – ‘Afzal Must be Hanged, Say Kashmiri Groups’ by Sudhi Ranjan Sen and Fayaz Bukhari which says

“…In a statement issued in Kashmir on October 2, Khalid Javed, commander of Al-Umar Mujahideen said Afzal’s hanging would actually provide a fillip to the Kashmiri cause.Apart from the Hizbul Mujahideen, Al-Umar is the only entirely Kashmiri group and is led by Mustaq Ahmed Zargar, exchanged for IC-814 hostages.The same day, the Jamiat-ul-Mujahideen said that by not pleading for mercy himself, Afzal has become a hero to Kashmiri youth. Those pleading for mercy on his behalf should leave Kashmir.On October 13, a lesser-known group, the Yalgar-e-Ali, said in a statement that Afzal should be left to his fate. His martyrdom would serve the cause of Kashmir.”

[See ‘Afzal Must be Hanged. Say Kashmiri Groups’ by Sudhi Ranjan Sen and Fayaz Bukhari, NDTV, October 26m 2006 – http://www.ndtv.com%5D

It these reports are accurate, then we have to take note of the fact that it appears that as far as the desirability of Afzal’s execution is concerned , there is a remarkable concordance in the views of the Supreme Court judgement on December 13, the BJP, the All India Anti Terrorist Front, the special cell of the Delhi Police and Kashmiri militant outfits such as Al Umar, Jamiat-ul-Mujahideen and the Yalgar-e-Ali. Perhaps they should all get together and form what would be a genuinely bipartisan ‘All India and J&K Committee for the Expeditious Execution of Mohammad Afzal Guru’.

This implies that I am acutely aware (as I am sure those of my colleagues who have deliberated on the issue of Afzal’s destiny with seriousness also are) of the fact that none of us finds ourselves in a zone where the categories of guilt, innocence, justice and consequence are clear cut and self evident. One can say that a person one does not believe to be innocent has had no oppportunity to avail of the constitutionally guaranteed right of an adequate legal defence and that this is in itself a serious miscarriage of justice. One can also say that a person who has had a fair trial still should not be hanged, because that too would, in a fundamental ethical sense, be a miscarriage of justice. Because there can be no greater premeditated violence than the premeditated violence of a judicially mandated death sentence, which tells the accused the time and date of his execution, and then leaves him captive to await the hour of his death. If premeditated, cold blooded murder is the reason why a death penalty is awarded, then how can we recompense for the premeditated, cold blooded murder that is the death penalty?

Uncertainty and Ambiguity

The conceptual space where one can say these things is a zone of acute blurs, uncertainties and ambiguities, where one has to hone one’s ethical intelligence and moral sensibilities against situations that do not in fact deliver themselves in terms that promise neat, resolved answers and the kind of sound-bytes that can be processed on ‘breaking news’ , with ‘whatever it takes’ on ’24X7′ news television.

And yet, we have seen large sections of the mainstream media, and responsible media figures leave no stone unturned in their attempt to give their readers and viewers the impression that our efforts were actually aimed at an erasure and an elision of all that was ambiguous, complex and uncertain.

Had channels such as NDTV, which were present in large numbers at the the public release of ’13 December : A Reader’ reported what was said on that occasion with a degree of integrity and good faith, their viewers, (and the readers of Barkha Dutt’s column – ‘The Third Eye’ – in the Hindustan Times and on the NDTV website) would have known that some of us did actually speak about ambiguities and uncertainties, and contrasted them with what we called the ‘terrible clarity and precision’ of the death penalty. It is instructive to think a little about what was actually said that day. NIrmalangshu Mukherjee, a professor of philosophy at Delhi university, and one of the contributors to ’13 December: A Reade’ opened the proceedings by talking about ’13 December’ as a problem of knowledge. He talked about the fact that “we know that we do not know” what happened on December 13.

The substance of my own brief statement on that occasion was actually an appeal to the mainstream media to the effect that they only display a degree of reticence and restraint commensurate to the complexities, ambiguities and uncertainties involved in reporting issues like December 13. One of the things I asked for was due consideration of the modest plea that the word ‘alleged’ always be used as a prefix to the word ‘terrorist’ in any report that highlights, in the wake of December 13, yet another successful ‘anti-terrorist’ operation of the Delhi Police. if anyone wants to check on what was actually said on that occasion, rather than rely on what ‘The Third Eye’ thinks was said on that occasion, all they need to do is to watch the videos of the statements that were made which are now available for public viewing on Youtube. The quality of the soundtrack, unlike phone interceptions made by the special cell of the Delhi police is quite clear, and you can actually hear what is being said.

[ See http://www.youtube.com/profile?user=00iram for links to video recordings of all the statements made and the discussions that occured on the occasion of the public release of ’13 December: A Reader’]

I am listing this Youtube.com url to clear the air about exactly what was said or not said on the book release of ’13 December:A Reader’. As for what has been written in that book, all you need to do, is to buy it, or borrow it and read it to figure out for yourself whether or not the authors are a bunch of intolerant, extremist individuals who are ‘closed to debate’ or whether they are a group of individuals asking a set of important questions with a desire to open, rather than close the debate around December 13.

Considering the words Innocence and Guilt

Several amongst us who have thought about this issue at length any with seriousness, neither SAR Geelani, nor Nandita Haksar, nor Indira Jaisingh, nor Mihir Srivastava, nor Arundhati Roy, nor Nirmalangshu Mukherjee, nor Nirmala Deshpande, nor myself, have ever stated that we believe that Mohammad Afzal is ‘innocent’. Nor have we spoken about his ‘guilt’. Afzal himself has talked at length about the extent of his involvement in his statement given to the court under section 313 of the Criminal Procedure Code (as distinct from the statements extracted from him in police custody which are in any case inadmissible as evidence under the Evidence Act, and do not even meet the requirements that were thought necessary under POTA). We do not find it necessary to contradict something that Afzal himself has said about the nature and extent of his own culpability. We are simply asking whether the the culpability is of a nature that enables a court to indict Afzal alone, and also whether it is adequate, beyond even a grain of doubt, to necessitate a sentence of death, especially when Afzal was not represented by a lawyer and when he was not given the opportunity to cross examine the majority of the witnesses who appeared against him in the trial court.. Neither of these requires us to believe in, or to make statements about the non-issue of Afzal’s so called innocence.

Some of us have made statements (and for quite some time now) that reflect our conviction (borne out by the acquital) that SAR Geelani was innocent. Our statements about the purported guilt or innocence of Mohammad Afzal have been made in public fora, (if and when they have been made) and they are easily retrievable and read. Mohammad Afzal Guru is not SAR Geelani, and our conviction about Geelani’s innocence cannot be automatically translated into a statement about Afzal Guru’s innocence that most of us have never made, without sleight of hand, misrepresentation, or an unforgivable laxity in terms of what is called a ‘fact check’ in the media business.

In fact it does not require us to declare that a man is innocent in order to demand that an assessment of his guilt necessarily include a consideration of who else may be wholly or in part share responsibility, along with him, for the substance of his intentions and actions.

Guilt and Association

Even the court’s verdict of Afzal’s part in the ‘conspiracy of December 13’ is actually built on this logic.

[See http://openarchive.in/judis/27092.htm for the full text of the Supreme Court verdict on the 13 December Case, sentencing Mohammad Afzal to death]

The mobile phones found on the bodies of the dead “terrorists” indicated that they knew Afzal. Afzal knew about what they were going to do, he even helped them do it. Ergo, Afzal is a terrorist. Even if, and especially if, we accept this line of argument, we have to take this line of thinking to its logical conclusion. If one of the terrorists who knew Afzal (the man called Mohammad) also knew, according to Afzal, personnel serving with the STF, then that makes it necessary for us to investigate whether or not the said STF functionaries were or were not party to what is being called this ‘conspiracy’. Afzal says they were. Afzal says he knew Mohammad. The court (and the majority of media commentators so far) accepts the second statement, but not the first, thereby refusing to carry their own argument to its own logical conclusion.

If Afzal is guilty, then a consideration of his guilt has to establish whether or not the others he names, particularly STF officials like Dravinder Singh (and others whom Dravinder Singh may be acting on the orders of) are also quilty of induced or threatened him to act in the way that he did.

Only once the exact chain of culpability is established (who told whom to take which person to which place to do what) can the guilt and consequently, just and adequate punishment, be apportioned in a manner that is not arbitrary. If Afzal is alone in this, then justice would require that the punishment be his alone. If he is not alone, then everything changes. If it is established that he was made to do what he did under pressure or threat, then we get a different picture altogether. Until this is conclusively decided one way or the other, all judgements about guilt or innocence , should, in the fitness of things, have been held in abeyance. Those of us who have spoken in favour of Afzal’s right to live have never said that Afzal is innocent, and we have also never said that he is guilty. We have never speculated, like the media at large has delighted in doing, on the quantum of his innocence or guilt.

If what Afzal is saying about the involvement of the STF is true then one of the things that is also likely to change is the meaning of the term ‘terrorism’ as it has been deployed in this case. If what Afzal is saying is true, then the word ‘terrorism’ would have to include in its ambit actions done by agents of the state ostensibly against itself, in the pursuit of complex tactical and strategic objectives. In other words we would have to come to an understanding that ‘terrorism’ and ‘state terrorism’, at least in this case, have been seen to be synonyms of each other. Until a satisfactory conclusion regarding this matter is reached, the automatic conflation of Afzal’s purported guilt with his identity as a ‘terrorist’, is only so much loose talk.

The majority of the media is unwilling to say that Afzal is innocent, but they are more than willing to say that he is unqualifiedly guilty of aiding and abetting ‘terrorism’. In fact it has gone to great lengths in the last few months to try and establish the credibility of this position.

Rather than harp on the non-issue of Afzal’s ‘innocence’, most of us have asked whether the circumstantial evidence that has been demonstrated in court would be sufficient, even in an ordinary criminal trial to hang a man, and whether a man can be hanged to death after it has been demonstrated that he did not have an adequate legal defence. We are not debating Afzal’s guilt, we are questioning whether he is ‘guilty as charged’, and this is an important distinction. Consequently, we have consistently demanded that we, and everyone else in this country has a right to know to what degree Mohammad Afzal was acting under orders, the source of which, seem to point in several directions at once, including in some instances the security apparatus of the state.

Until such time that these questions are comprehensively and exhaustively investigated, the attempt to hang Mohammad Afzal and to stall a possible enquiry into the events of December 13, has to be read as an attempt to hurriedly ensure that the truth remains obscured.

The Ground We Stand On

We have stood our ‘ground’ in this argument without consideration as to where our positions could be placed in the three step (‘middle’, ‘higher’ or ‘lower’) guide to ‘ethics made easy’ as seen on TV. We have attempted to stay consistent to a reasoned scepticism (that has grown over time) about an official version that is patently plagued with inconsistencies. In fact, we have tried to think this through without giving way to motivations that have to do with the ’emotional and psychological satisfactions’ that come from quick and easy answers.

The thought that the answers to the enigma that is 13 December may lie in places far more shocking than a simple, ‘do-it-yourself’ ‘terrorist’ conspiracy can account for is as disturbing to us as it is to those who accuse us of ‘extremism’. We derive no comfort or smug satisfaction from knowing that people have been tortured, or from suspecting that people working within the intelligence apparatus and the security establishment may have been playing a dangerous game which is only just beginning to come to light. What disturbs us even more is the fact that so much of the media and large sections of the political class in this country are in a state of total denial, and are unwilling to countenance any reasonable doubts of all that is disturbing about December 13.

The Ghost of the Middle Ground

This ‘middle ground’ in the case of December 13, that is so sure of itself in the face of so much that cries out to be explained can only be a ghost. It died a quiet death long ago, the day that so much of the media started pushing police hand outs as ‘news’, it died again on the day that no one from the mainstream media thought it fit to apologize for the way in which they had printed and broadcast lies about SAR Geelani, it has died a third time in this winter of our discontent. It is the ghost of this middle ground, a hungry, bloodthirsty spectre, lingering on years after the event, that we can see flicker and beckoning at us through the fog of newsprint and pixels. The factories that manufacture consent in this country today are haunted and possesed by this ghost. The next time you see an anchor spin 13 December for you on TV, or read a commentator make what they claim is a ‘balanced’ assessment of the case on print, you should take care to notice the rigour mortis in his or her style.

This brings me finally, to a consideration of the two ‘specials’ that I have seen in the past few weeks on CNN IBN and NDTV India, which promised sensational revelations to their viewers with regard to the role that Mohammad Afzal Guru played in the events of 13 December 2001. Let us take each of these in turn.

Decoding ‘Decoding Afzal’

On November 27, CNN IBN aired a ‘sensational’ exclusive – a hidden camera sting operation, in which Davinder Singh, STF officer, and Afzal’s brother – Aijaz speaks at length about the fact that Afzal was a dreaded Jaish e Mohammad terrorist, and in fact close to none other than the late and legendary Ghazi Baba. Davinder Singh admits to have tortured Afzal, at great length, on more than one occasion, but then says he let him go. He denies that he ever introduced him to anyone at the STF camp who then turned up, a few months later, as a dead body in the precincts of the Parliament.

[See ‘Decoding Afzal: Truth is out there’ a CNN-IBN ‘Investigation’ by Siddharth Gautam, broadcast on November 27, 2006 – http://www.ibnlive.com/news/decoding-afzal-truth-is-out-there/27156-3.html ]

What I find interesting here is the necessity to stage this as a ‘hidden camera’ confessional. Why do I talk about the ‘staging’ of the so called ‘hidden camera’ segment? Davinder Singh talks extensively to a person who is outside the frame, to his right. The camera is filming to his left. Evidently, there are at least two other people in the room. In other words, we are asked to believe that two people have entered a space where a responsible officer of the most dreaded counter insurgency unit in India is meeting them, without being body searched for concealed weapons, or without their ‘hidden camera’ being detected.

The two (or more) people then proceed to have a lengthy conversation with Davinder Singh, over a cup of tea, where Davinder Singh admits to a few crucial things, such as the fact that he knew Afzal, and that he had in fact tortured him, months before the Parliament attack happened.

The Performative Epistemology of a Staged Sting Operation

So, a certain degree of calibrated disclosure occurs. One of the brothers, Hilal, in another segment of this episode, says that he was arrested with Afzal, but no laptop, on which so much depended, was seized. So a degraded piece of evidence, on which so much of the ‘circumstantial evidence’ was based in the trials, is thrown out of the window. Incidentally, the name of Hilal never figured in the prosecution’s arguments. But, another brother says, Afzal was a terrorist. And so does Davinder Singh. And this must be true, because they said this, on ‘hidden camera’. And the ‘hidden camera’ like ‘narco analysis’ and ‘truth serums’ only produces truth in the gospel according to CNN IBN, because those filmed on ‘hidden cameras’ do not know, ostensibly, that they are being filmed, so they reveal everything.

Thus, one way of coating a testimony with the sheen of truth is to present it as if it were harvested by a hidden camera. If we were to the reasons why a functionary of the repressive apparatus of the state might actually want to expose their ‘vulnerability’ in what is dressed up (incompetently) to look like an encounter with a ‘hidden camera’, we would not have to look much further.

I find this episode remarkable for its performativity. A torturer meets a journalist (or at least two people with a hidden camera, a cameraman, and the other off camera presence the torturer adddresses) admits to some surprising facts, (which were not investigated for these five long years) denies a few crucial ones. The aura of truth around the denial actually consists of the fact that there is a counterweighted admitted to some pretty surprising stuff in the first place, and that too, ostensibly without the knowledge of the people involved. Stealth meets stealth and produces a convenient set of ‘truths’. So, no more need of circumstantial evidence, inconvenient laptops, and mobile phones, we have it from the horses mouth. Afzal says he was tortured, blackmailed and forced to take some people to Delhi by the STF operatives, and these men later stormed operative. The key STF operative, and Afzal’s brother, who also admits to have known the same STF operative, admit that he was tortured, extensively, but deny the rest. Calibrated disclosure, credibility and variety. When the ‘deep state’ encounters a crisis, as I believe it has done with the 13 December case, it reveals some of its depths, a few unofficial secrets act, only to ensure that our momentary disorientation as a result of these revelation actually prevents us from looking any further. The murky waters part momentarily, only to close even more decisively after. The deep state just gets a few fathoms deeper. Somewhere at the edge of the frame while Aijaz, the elder brother sings his piece, we sometimes get a glimpse of a shadowy face. It might be interesting to get some information on who this person is, and what they are doing while a hidden camera is filming a ‘top secret sting’ in an undisclosed location.

Marionettes and Puppetteers

In their all too hasty celebration of their investigative prowess, the mandarins at CNN IBN have exposed themselves more than they might have wanted to. They have demonstrated that sometimes when you do ‘whatever it takes’ to break the neck of the news, the hands that aid you to do the breaking also tie you down to an unwritten contract that makes you do their bidding. And so, the hands that make an offer for an ‘exclusive’ tape that a TRP hungry channel cannot refuse, also tie the channel down (knowingly or unknowingly) into becoming their mouthpiece. The channel executives think that they have just pulled off a coup, not realising, or not willing to realize that it is in fact they who have been used for purposes that are far beyond their ken. But the marionettes who ‘break the news’ on the channels and their invisible, or barely visible, puppeteers forget that this shadow play is too full of all kinds of odd traces and patterns, (I say barely visible because nowadays one sees distinguished gentlemen from the intelligence community making their discreet presence felt with a degree of regularity on television panel discussions on the 13 December issue) Perhaps none of them take into account the fact that some of us might be able to read a lot more into camera positions, angles and the orientation of subjects within the frame than they might have calculated for. Time for critical media studies and film analysis to be made a part of the education of the intelligence professional.

The Theatre of Confession

What is true for the CNN-IBN exclusive is sadly true also for the NDTV India ‘vishesh’ (special) report that was aired on the 16th and 17th of December for around one and a half hours. The smugness of the anchor Abhisaar Sharma on being able to air footage taken in police custody of a five year old confession that was disallowed in court as evidence, is beyond belief. Nothing that Afzal says in this recording, as he tries to blink to shield his eyes from the glare of strong lights that we see reflected in his spectacle frames, is new information. This is the substance of the police charge sheet with regard to Afzal, and we have seen much of this dramatized before, on Zee News.

[ See ‘Parliament Plotter Statement Released’ , an exclusive report by Neeta Sharma on the NDTV website at
http://ndtv.com/template/template.asp fromtimeline=true&id=98054&callid=1&template=Parliamentattack ]

However, there is still something especially repellent about the exhibition of a coerced confession. See it had the same chilling quality on me as I have had whenever I have read accounts of Bukharin’s ‘confession’ at the climax of his show trial in Stalin’s Soviet Union The squinting to avoid the glare of lights is a telling detail. Afzal does not use his hands to shield his eyes, but keeps moving his head in a nervous manner to avoid the glare. The frame reveals only his chest and head in a mid close up. One wonders what happenned to his hands, were they tied, or handcuffed? Are we to view this disgusting exhibition of a person in confinement as a credible testament by any stretch of imagination? The report does indicate that Afzal went back on this statement, and that this was not allowed as evidence in court, but the time taken to deliver this information is a fraction of the footage given over to the exhaustive details of the confession, and their repetition, in order to emphasize certain key points.

Perhaps the most cogent analysis of this footage comes from N.D. Pancholi, an advocate who is currently acting in the capacity of the legal counsel for Mohammad Afzal. His letter to the NDTV Managing Editor, dated 26 December makes for compelling reading, and I reproduce a substantial part of this text here.

[See http://www.sacw.net/free/pancholitoNDTV.html for the full text of this letter]

——————————-

Excerpt from the Letter of N.D. Pancholi to The Managing Editor, NDTV, 26/12/2006Sub: Your repeated news bulletins on Hindi channel on 16th & 17th December, 2006 displaying Afzal’s statement video-taped by the Special Cell of Delhi Police when AFZAL was in police custody.

This is with reference to your aforesaid news reports repeatedly telecast in the news bulletins on your Hindi channel on 16th and 17th December, 2006, wherein your reporters claimed to have got exclusive possession of a video tape in which Mohd. Afzal Guru, who is facing the death sentence in the Parliament attack case, is shown making self-incriminatory statements.

Around 3 PM on 16th December, 2006, when I was in the High Court, I received a phone call from one of your reporters, Ms. Sunetra Chaudhary, asking whether I had seen the news about Afzal on NDTV. I expressed my ignorance. She told me that the police had given NDTV the video tape of a statement given by Afzal in police custody and that the said tape was being broadcast by NDTV. I told her that any statement given by an accused in police custody has no value and is inadmissible in law and that the alleged confession of Afzal made in police custody had been rejected by the Supreme Court. I also told her that media conference organized by the police in December 2001, in which Afzal was shown admitting to his involvement in the Parliament attack, was also strongly disapproved of by the High Court and the police were reprimanded for having conducted such an unlawful exercise. But she said that the said tape was not of the media conference but of the statement which Afzal had given to the police at the time of interrogation — and which NDTV has brought out for the first time. I told her that before producing Afzal in the media conference he was several times made to rehearse his statement as tailored by the police, and that the said tape must be a recording of one such rehearsal. She told me that she would send a reporter to me to get my comments. She also requested me to provide her with a copy of the statement made by Afzal in the Court under Section 313 Criminal Procedure Code, which she said she would juxtapose along with his recorded statement in the news. She also told me that Ms. Barkha Dutt had sent her a copy of the letter written by Afzal to Shri Sushil Kumar, Senior Advocate, who had argued his case in the Supreme Court, and if the “313 statement” of Afzal was not available with me, she would use the contents of the said letter in the news bulletins. She also asked me to see, on the news bulletins, the tape which was being repeatedly shown by NDTV.

I came home and saw the news bulletins. An NDTV reporter also came to my residence at about 5.30 PM and recorded my statement, both in Hindi and in English. My statement was to this effect:

“The statement in the tape is a tutored rehearsal which Afzal was coerced to make under threat and after torture, that such statements in police custody have no value, that the High Court had reprimanded the police for organizing a media conference where Afzal made self-incriminatory statements, that the Supreme Court had also rejected his so-called confession made in police custody, that the police had never produced such a tape during the trial, that it was the defence lawyers who had had the tape of the media conference of Afzal produced in the Court to show how the conference was organized and manipulated under the dictation of the ACP Rajbir Singh.”

However, my aforesaid comments were not broadcast. All that was shown was a small part of my statement, in a manner which distorted my stand, while the tape was repeatedly telecast. The reporter said: “Advocate says that the tape was not produced by the police in the court”. All of my other aforesaid comments were suppressed by your reporter. It was obvious that your reporter, by producing only that small part of my statement in a manner which removed it from its context, wanted to convey to your viewers that non-production of the tape was only a minor negligent act, a small mistake on the part of the police — which mistake was being rectified by your “investigative journalism” for the sake of those who wanted the prompt hanging of Afzal.

The display of the tape was followed by suggestive comments by your reporter such as, “You have seen the tape. See how natural, how truthful, how fluent his statement appears!” “.Who can believe that such statement can be given under torture?” The news was captioned “Afzal Ke Badalte Hue Bayaan (Changing statements of Afzal)”. In a discussion of the tape your anchor declared, “If such a statement of Afzal was made under coercion, then he must be a good actor.”

In the morning news of 17th December, 2006, I saw that the families of security men killed during the attack on Parliament had been brought on the programme and, after showing the tape to them, your reporter asked their opinion about the hanging of Afzal. Their expected reply was duly telecast. Your reporters stationed in some cities were shown gathering the opinion of the public about the hanging of Afzal in the light of the tape telecast by NDTV. These telecasts were repeated many times during the day and viewers were asked to send SMS messages to NDTV.

I met Afzal in jail on 20th December, 2006 and told him about the tape and the repeated performance of NDTV. He was amused. He told me that there was not one such tape but several, as before producing him at the media conference the police had forced him to rehearse his “Bayaanâ” (statement) five or six times. Before that he had been brutally tortured for about two days. Urine was forced into his mouth. He was given repeated beatings. Once he was kept completely naked throughout the day, and on that day one of the public witnesses who was to give evidence against him later in the Court also participated in the beating. He was also hung by ropes. The next day he was given a written statement and was made to rehearse it five or six times. Rajbir Singh, ACP, instructed him,”Iske Aage Nahin Batana, Iske Peechhe Nahin Batana (Do not add anything to or remove anything from this statement)”. Afzal was told that his brother Hilal was in the custody of the STF in Kashmir and that if he wanted the safety of his brother and family, he should speak in the media conference on the lines of the “Bayaan” tailor-made by the police. Each rehearsal was video-recorded.

However, the portion in the “Bayaan” relating to co-accused S.A.R. Geelani created a problem. The police wanted Afzal to implicate Geelani in his statement before the media, which Afzal found himself unable to do. He faltered at the Geelani point in each rehearsal. So ACP Rajbir Singh instructed that he should keep silent if the issue of Geelani cropped up in the media conference. But a deviation occurred when a reporter asked Afzal about the involvement of Geelani in the attack. Afzal replied that Geelani was innocent. This angered Rajbir Singh, who shouted at Afzal ordering him not to say anything about Geelani. Rajbir Singh also requested the media persons to delete this part of the statement while presenting it to the public. By and large, the media obliged the police in a truly nationalistic spirit.

But the media conference ultimately misfired. There was an unintentional leak by the “Times of India”, and after a couple of months the TV channel “Aaj Tak” telecast the complete conference — without realizing that this would be to the detriment of the police case. The defence lawyers of Geelani were quick to pounce upon such lapses of the media and had the entire video tape of the conference produced in the court. Shams Tahir of “Aaj Tak” was summoned on behalf of the defence lawyers to give true account of what happened in the conference, and his evidence earned for the police a strong reprimand from the High Court for organizing the media conference. It also contributed to the acquittal of Geelani.

I am narrating these facts in detail as your reporters seem to be ignorant of various salient features of the Parliament Attack Case.Your repeated news bulletins over two days reduced the issue of the hanging of Afzal and his Mercy Petition pending with the President to a very simplistic solution “Show repeatedly the video tape (an unlawful piece of evidence) of the alleged confession of Afzal recorded in police custody as breaking news, convince the viewers that it has brought out the ultimate truth, ask them to send SMS messages to NDTV conveying their opinions about the “˜Phansi” (hanging) of Afzal, and then pour out the “˜collective opinion” gathered in this manner to pave the way for the prompt hanging of Afzal.”What a simple, quick solution of an issue involving the life and death of a citizen!

…I have taken the consent of Afzal before writing this letter to you, and on his behalf I request you to faithfully present his side also to your viewers, without any suppression or distortion.

I hope that the above contentions on behalf of Afzal, on facts and law both, will be truthfully presented by you to your viewers to enable them to make a responsible judgement on the issue.

N.D.Pancholi
Counsel for Mohd. Afzal, lodged in solitary
confinement in the High Security Ward of
Jail No.3 of Tihar, Delhi.

Needless to say, NDTV, neither in the form of NDTV24X7 nor as NDTV-India has thought it necessary as of now to produce or air any programme that truthfully presents the ‘above contentions…on facts and law both’. Nor has it thought it necessary to apologize to its viewership, which it has insulted with this gratuitous exhibition of something that was not even accepted as evidence in court.

A Dead Man’s Identity Crisis

But the material of the ‘confession’ merits scrutiny even on its own right. Once again, we find that it is the breathless over-enthusiasm of the rhetorical flourishes that undermines the credibility of this sordid episode of attempted opinion management on prime time television. A great deal is made of the fact that Afzal ‘identifies’ one of the slain ‘terrorists’ who is named Mohammad as Sunny Ahmed Qazi alias ‘Burger’, who slit a passenger’s throat during the hijacking of the IC-814 Indian Airlines plane from Kathmandu to Kandahar. The ‘dead Mohammad’ equals ‘Burger’ theory was an important part of the Delhi Police version during the early days after December 13.

The CBI, which had filed the charge sheet when the Hijacking took place, naturally took an interest in ascertaining whether or not the “dead Mohammad = Burger” theory had any basis. In fact, on December 19, 2002, CBI officials stated that samples of handwriting found on the body would be compared with those that the CBI knew were taken from Burger, further, photographs of the dead body were being sent to the Central Forensic Science Laboratory for Electronic Skull Imaging tests.

We know that by the 14th of January, 2002, the CBI had completely rubbished the “dead Mohammad = Burger” theory. Here is an extract from a story tiled “The Ham Burger-Did Delhi Police sleuths jump the gun with the wrong one?” by Davinder Kumar, datelined 14th January 2002, which was published on page 12 of the Outlook issue of January 21, 2002

“After a week of action and frequent media briefings following the 12/13 strike, silence has gripped the investigation agenices, particularly the Delhi Police. The initial euphoria of having cracked the case within 72 hours has now made way for discernible restraint. Suddenly, no one in the Delhi Police wants to crow about the progress of the investigations.

What has come as a blow to the Delhi Police investigations is the CBI rubbishing the claim that Mohammad – the man who led the fidayeen attack on Parliament-was the ‘Burger’ of the IC814 hijack two years ago. The CBI, which is investigating the Kandahar case, has written to the Union home ministry dismissing this claim as baseless.

CBI officials dismiss the assertion that the terrorist killed in the Parliament attack was Sunny Ahmed Qazi alias ‘Burger’. The investigating agency reached this conclusion after a team of experts from the Central Forensic Science Laboratory were called in to ascertain the identity of Mohammad whose body, along with the bodies of other members of the fidayeen squad, is kept preserved at Delhi’s Lady Hardinge Medical College mortuary. ”

In fact, the CBI website to this date hosts a ‘wanted’ notice (Interpol notice control number A – 563/6-2000) for Sunny Ahmed Qazi alias Burger at http://cbi.nic.in/qazi.htm

So if we have more than reasonable grounds to believe that the “dead Mohammad = Burger” part of the testimony is a fabrication, on what grounds must we accept that anything else that Afzal says in this tape is true. As stated earlier, Afzal entirely repudiated the contents of this confession in the statement he made under section 313 of the Criminal Procedure Code to a magistrate, which is in fact something that is admissible as evidence in court because it dose not carry with it the baggage of being obtained in police custody.

“But Life Goes On”

What, if anything can explain the desparation that drives elements within the police apparatus to offer a false testimony to a premier news channel, and what can justify that TV channel’s airing it. Barkha Dutt, in the concluding paragraph of “Death of the Middle Ground” had stated.

“But life goes on. As I write this, NDTV has received a CD of Afzal’s so-called confession to the police; a “confession”, he later said, that was induced by torture, and then retracted. We spent hours debating what the fairest way to use the contents of the CD was, and finally, decided that we would use his “confession” only in juxtaposition with the statement he finally submitted in court. The idea was to highlight the many ambiguities and contradictions of the case.”

A completely quantitative analysis of the amount of screen time lavished on the confession seen in proportion to the amount of screen time given over to the qualifying statement that Afzal made in court is adequate to demonstrate the token nature of this so called ‘fair’ juxtaposition. And one of the key contradictions in the case, which the report conveniently omits to mention is that the man known to us as “dead Mohammad” is not “Burger”.

I can understand what made Mohammad Afzal sing, what made him into a horrible and sad caricature of Sceherazade, who had to tell a thousand and one stories to save her neck and the neck of her sister from the executioner’s sword in the frame story of the Arabian Nights. It is not necessarily a brave thing to have done, (though Afzal was brave when he said to the media in the other ‘confession’ footage, that SAR Geelani was innocent). But how many of us would be brave when faced with torture, and naked threats to the safety of our immediate families. Afzal sang as he was told to sing, as many of us would, given the same circumstances. We would do this to survive, perhaps to get out of it all with a sliver of dignity and sanity intact. Afzal’s conduct falls in this regard falls squarely within the pale of what any human being might have done, and it is for this reason that confessions in police custody are not admissible as evidence in a criminal trial.

We can understand what made Afzal do what he did, but how do we explain NDTV’s conduct, and the preposterous suggestion that the airing of this contaminated fabrication was the result of hours of debating what would be the ‘fairest’ thing to do under the circumstances. I can only marvel at the debating skills on offer in NDTV offices which enable otherwise intelligent people to rationalize and justify to themselves the act of stooping so low in front of the dirt dished out to them by the shadowy operatives who crawl out of the crevices in the underbelly of the intelligence apparatus.

Neeta Sharma and The Strange Case of Stationary CCTV Cameras

The story concludes with the only substantive response to have emerged from the media to any of the 13 questions presented by Arundhati Roy in her introduction to ’13 December, A Reader’. This is the answer to the question about whether there were five, or six men who attacked parliament and whether this can be deduced by looking at the surveillance video of the precincts of parliament that day.

[ See ‘Parliament Attack: Questions Raised over CCTV Footage’ by Neeta Sharma on the NDTV website at http://ndtv.com/template/template.asp?fromtimeline=true&id=20971&callid=0&template=Parliamentattack%5D

In this episode, the answer takes the form of an extended playing of split screen surveillance camera footage of the white ambassador car travelling towards, and then entering parliament, and some shots of the occupants of the car (we see four of them) running about. The correspondent who has been part of the team which put together this story, Neeta Sharma, says, as we see this footage, that the question of the ‘sixth man’ cannot be answered by the CCTV footage simply because the CCTV cameras are fixed, immobile and cannot take in the spot where the car stopped, and the occupants alighted.

Firstly, it is reasonable to expect that there are not one, but several CCTV cameras in the vicinity of the parliament, that between them, comprehensively cover the space. Secondly, even, as the correspondent offers us her ‘immobile’ camera theory on the commentary, we can see the frame moving, as the camera pans, tilts, zooms, exactly as CCTV cameras are programmed to do. So much for the immobility of the CCTV camera.

But the curious details of the production of this story do not end here. Neeta Sharma, the key correspondent in this story is the same person, who in her earlier avatar as a reporter for the Hindustan Times, wrote some of the patently planted stories about SAR Geelani and 13 December (with a ‘script’ identical to the one that has been rehashed exactly five years later in the NDTV India Report)

[ See ‘Case Cracked: Jaish behind Attack’ The Hindustan Times, Dec 16, 2001 by Neeta Sharma and Arun Joshi, and ‘Pak Uses Fanatics to Spread Terror in India’ a six column piece by Neeta Sharma on December 21, 2006 in the Hindustan Times, which puts out a series of fabrications about SAR Geelani. See also, ‘The Media and December 13’ an analysis of reporting on December 13 by Nirmalangshu Mukherji at http://www.zmag.org/content/showarticle.cfm?ItemID=6332 ]

She also wrote patently planted stories, again in the Hindustan Times, about Ifitkhar Geelani, the journalist framed in a false case under the Official Secrets Act.

[ See ‘Iftikar Geelani Admits ISI Link’ by Neeta Sharma, Hindustan Times, June 11, 2002. This text, which Ifitkar Geelani has called the ‘mother of all mischievous reports about me’ is still available online at http://www.jammu-kashmir.com/archives/archives2002/kashmir20020610f.html. ]

Neeta Sharma is clearly one of the select club of journalists in Delhi who has a long and distinguished history of association with the ‘information management’ wings of the intelligence and law enforcement agencies that come out to play with the media on certain occasions.

Her re-appearance as one of the architects of the NDTV India’s telecast of Afzal’s confession in custody is itself something that needs to be decoded with care. How did the channel allow a reporter with a known track record of fabrication in the same case to fashion yet another incompetently put together tissue of lies. I wonder how many hours of honest debate must have gone into this decision. Were the senior management of NDTV aware, are they aware that their correspondent has a track record when it comes to planting stories. Are they managerially so incompetent that they do not look at a person’s professional history when they take them on, or do they choose to look the other way, calculating instead the benefits of the informal intimacy between ‘intelligence’ and ‘journalism’ that such individuals bring with them to the organizations they join.

Blowback

In the end, this is not just about the individual who happens to be Neeta Sharma, or any other individuals, or about CNN-IBN or NDTV India or NDTV 24X7 or even the shenanigans of any other news channels . This is about a cornered beast that is the nexus between sections of the media, elements in law enforcement and intelligence, the political class and the judiciary flailing and making mistakes, reacting in uncontrolled nervousness and fear to the possibility that the house of cards that is the official story of December 13 might come crashing down. It is this panic that is causing the kind of hysterical programming that we are witnessing on television. Some people have a lot to lose if we keep asking questions about December 13, and they will do ‘whatever it takes’ to confuse the issue. I cannot see any other rational explaination for the manner in which a lot of the skeletons are crawling one by one out of the December 13 closet.

Sometimes, the methods used for ‘crisis management’ create their own blowback effect. The methods of our intelligence apparatus, and the collective enigma that we have begun calling the ‘Deep State’ in India are an indication of what happens when the attempt to control perceptions starts spinning out of control. The more they do this, the more they expose themselves.

Voices of the ‘Deep State’

There are voices that emanate from within the depths of the ‘Deep State’ that seem to point in exactly this direction. Only yesterday, (31 December, 2006) Ajit Doval, former director of the Intelligence Bureau, wrote an article in the Hindustan Times on a page that was headlined ‘Terror or Order’. Perhaps it would have been more apposite if the headline had been ‘Terror and Order’. In his text, titled, ‘Intelligence – Brave New World – Transform not Reform’ Doval writes –

“the modern state operates under a complex regimen of national and international laws, media gaze and vigilant public opinion, which limit its power. When the state’s objectives are not met by the legitimate instrumentalities, it is tempted to use covert action. This leads to use of intelligence not only as a knowledge provider for policy formulation but also as a deniable tool of policy execution.” [Link]

Notice the key phrase, ‘deniable tool of policy execution’. Remember this is not me offering a conspiracy theory, it is a recently retired director of the Intelligence Bureau, intimately involved incidentally, with the investigations of 13 December, who is talking about the necessity of deniable tools of policy. What does ‘deniabilty’ mean other than the erection of masquerades ? What conclusions can we draw from this tacit admission that the state does things that it finds necessary to deny.

The Street Theatre of Terror

This is about as sophisticated as the theory of the practice commonly known as the ‘fake encounter’ in india gets. We find another reflection of this theory in another remarkable text, published, once again, in Hindustan Times, on June 28, 2006, written by Manoj Joshi, Editor (views) Hindustan Times, while he was a member of the National Security Council Advisory Board, an apex body that advises the ministry of home affairs on matters relevant to internal security. This text, which offers an analysis of the ‘attack’ in May on the RSS headquarters in Nagpur is called ‘The Bigger Picture – Terror’s street theatre’.

Manoj Joshi begins by asking –

“Was the Nagpur encounter of June 1 that led to the killing of three Lashkar-e-Tayyeba ter rorists staged? All the signs seem to suggest that it was: a terrorist ‘strike’ at 4 a.m., an hour of the day in a small town when any movement occasions suspicion; a gunbattle with no eyewitnesses in which all the bad guys get killed and the only bullets to hit the police strike their bulletproof vests; terrorists’ grenades fail to explode and their bodies are removed before the media arrive; finally, a diary providing their names and addresses is fortuitously found.

As for the media, the less said the better. In sharp contrast to the scepticism over the last such major event — the Ansal Plaza incident in New Delhi in 2002 — they seemed determined not to see anything that the police did not want them to see. The questions that have been raised since follow from investigations by a team associated with the People’s Union for Civil Liberties and other civil rights groups, led by B.G. Kolse-Patil, a retired judge of the Mumbai High Court, and Suresh Khairnar. The report has a number of details, including the numbers of bullets fired and the angle of their entry into the police vehicles, that indicate that the police version of the encounter is not easy to believe.”

So far so good, but it is here that Joshi’s true intent reveals itself in a remarkable way. He goes on to offer us a remarkable insight into why he thinks that ‘staging’ terrorist incidents is a valid instrument of policy.

Joshi says – “…Unlike the aim of the factfinding mission, ours is not to berate the police or seek a Supreme Court inquiry. It is to draw cautionary lessons about the war against terrorism, which looks to be getting worse, before it gets better.No tears need to be shed for the execution of terrorists…the aim of the execution was to send a macabre message to their handlers, and to eliminate ruthless killers whose detention could endanger the police personnel who dealt with them, or lead to more terrorist actions to secure their release, as in the case of the IC814 hijack. There also seems to be another peculiarly Indian need for staging such events. When terrorist conspiracies are quietly terminated, as indeed many are, people tend to get complacent, and the reaction to a major strike can be destabilising. Staging such a grisly theatrical is , in a sense, inoculation to reduce the virulence that may result from an actual terrorist strike later.”

‘Grisly Theatricals’ and a growing list of questions

Reading these lines in juxtaposition with what we know, and what we do know that we do not know – about December 13, 2001 and the Attack on the Red Fort in 2000 leads to the drawing of certain unavoidable conclusion. It needs now to be proven that these ‘grisly theatricals’ were not staged, were not the kind of ‘inoculations’ that act as ‘deniable instruments of policy’.

If those who are speaking loudly today in favour of Afzal’s hanging have nothing to fear, then they should also not have any difficulty in ensuring that at the very least, a thorough enquiry and investigation be carried out into the affair of December 13.

If nothing else, it might yield valuable information about who else was involved, who actually got Afzal to the place where he is now, so that they too may be punished (with him, if that is necessary) for their actions. For all we know, we might find that there exist people whose culpability with regard to December 13 is far greater than what has so far been demonstrated in the case of Mohammad Afzal. If this be true, and if we are to take the question of getting to the bottom of what happenned, and apportioning blame seriously, then it is imperative that stay alive, at least until such time that the investigations are satisfactorily concluded. The only conclusion that can be drawn from the intensity with which the demand that Afzal be killed, and immediately, is that those who are making that demand have reason to be worried about what might be revealed in the future, should Afzal stay alive to participate in a free and fair trial, and in a rigourous investigation of the truth.

Once again, in the absence of a better explaination, we must continue to ask why the critics of our position are not responding to the questions that we are actually asking and are instead occupied in going about day in and day out in the task of constructing a straw man of Afzal’s so called ‘innocence’. A generous explanation would be (and I am willing to consider this to be the truth in the case of Barkha Dutt, whose analytical skills have never quite had the edge of her enthusiasm) that this is being done because those doing it do not have the intelligence, patience or diligence to actually consider what we are saying. A less generous explanation would be that this is being done with some deliberation, so as to confuse and delude the public into believing that we, the critics of the official line on December 13 are either naiive pro-Kashmiri ‘limousine liberals and publicity mongers’ who do not know have a clue about what we are talking about, or, that we are actually a ‘subversive jehadist conspiracy’.

[The first of these is the Suhel Seth position, as elaborated in the Asian Age of December 18 , in ‘The Laws of Activism’ (http://www.asianage.com/presentation/columnisthome/suhel-seth-/the-laws-of-activism.aspx) and the second is the Arun Jaitley line, as spelt out on NDTV India on December 16th and 17th.]

Either way, both of these arguments do not actually engage with any of the points that we are trying to make. In their dismissal lies a careful but nervous evasion of the questions that have been raised by Arundhati Roy and by several others who have been arguing against the death penalty for Mohammad Afzal.

[See ’13 Questions for 13 December’ by Arundhati Roy, Published in Outlook, December 18, 2006 and posted here me.]

It is of course entirely possible that in the end it is the high pitched volume and vituperation of the carefully orchestrated ‘Hang Afzal’ campaign that will carry the day. Alternatively, there could also be the possibility that the questions we are raising prompt everyone to think a little more for themselves about what they have been told and are being told about December 13. The questions are not going away, nor are we. It is also possible that the 13 questions give rise to many more, as more skeletons begin to crawl from the 13 December closet. We are prepared to wait out this winter of our discontent, even as Mohammad Afzal gets ready to wait it out in his cell in Tihar Jail.

3 thoughts on “The Ghost of the Middle Ground”

  1. The usurped content through the ‘popular media’ and other such means is profoundly ambiguous and therefore, doubtful for Foucault, and in one of his interviews he talks very simply: “we are caught in the labyrinth of paradoxes”. So, Mr. K of literature is Mr. A of our immediate reality. He is guilty, he is not, kind of thing. While reading your passionate text on Mr. Afzal one can not stop thinking about Ronald Barthes MYTH TODAY. Things constantly disappear and reappear in a theatrical fashion, but the only difference here is that the life of a person is at stake and is simply exposing the iron in the soul of a state. At the level of material the state needs iron, literally to maintain prisons. The ink like molten iron which constitutes LAW, too must be bending like steel with the shape of the alphabets engaged to shape it.

    Any saner thought or theory or text repeatedly points out this ugly iron in the state which distorts, humiliates and simultaneously appropriates the subjectivity of a soul or a collective soul. So the image: a sharp piece of iron hanging on our heads without a support. But it is the very illusory dimension(s) of our soul(s) that grants courage to the piece of iron to awe us. The more the souls of the people disappear the more the iron appears stronger and bigger to over awe us at every moment of our existence. No wonder that the most metamorphosed amongst us believe that iron is the face and destiny of souls, and is not ‘iron’ any more. That way, we merely become reflections of that iron in the iron. No wonder that the majority of the people in India want a Hanged Afzal for that collective iron in the soul of the state. They themselves have no souls: absence of Karuna Rassa?

    The state will always work out some violence to operate the law. Even legendry Ashoka is believed to have executed some of his opponents after his famous embrace of Buddhism. The point is more deeper than the effort to put pressure on the state to be sensitive and restore the dignity and the rights of its subjects. The state depends on the cold blooded calculations of bureaucrats and indifferent attitudes of politicians. There is no love affair between the soul and collective soul of the state. Jinhain naaz hai hind par, woh kahan hai, Kahan hai.

    Talking on Afzal inevitably bring the mention of Kashmir. As you also know that how difficult it is to talk ‘Kashmir’ in comparison to say Palestine. Not because there is no courage to talk about it, but a given complexity mars the discourse on ‘it’ at every level of understanding. That porridge like complexity between India and Pakistan through Kashmir sand witched with omnipresence of International axe to grind, plus modern modes of life mixed with violence and desire for a free state with a hazy clarity on the future governance dragging uninterestingly a past of cultural khazana with almost no discourse on subjects like feminism akin to rampant deforestation and …

    There is lot of grey in the whole of ‘it’, and I have always dealt it with my ‘indersalim’ construct, both in Kashmir and outside Kashmir for the last 23 years or so. But something has hardened and over hardened over the years and it has become more demanding than complacent administrators in New Delhi expected. There has to be some solution, some solution, some solution; and that is why Mr. A in India is Mr. Mohammad Afzal Guru in Kashmir who somehow represents a stance which has a veritable political significance. The news of my performance/installation at ISF about Afzal and the universal NO to death sentence has reached Tihar as you conveyed me,( thanks for that ) gives me a strange feel of empathy.

    Everything which happens brings its own dynamics which affects deeply everything, including writing, and therefore, no doubt that the negotiations at political level too become different once violence is thoroughly mixed with it. This too has its long history at world level, and in the past it entirely seems to have shaped our ‘ civilization-in-labyrinth-of-paradoxes’.

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