The Batla House Judgement and the Impossibility of Closure

The word ‘closure’ has a reassuring, comforting resonance, particularly when it comes to matters of death. One achieves closure. It is granted.  Those who are fortunate receive it as recompense for the necessary tasks of grief and mourning. We move on.

On the 25th of July, last week, after Rajender Kumar Shastri, 2nd Addiitional Sessions Judge of the South East (Saket) Court in New Delhi announced in open court that a young man named Shahzad Ahmad of Khalispur village in Uttar Pradesh’s Azamgarh Disttrict was guilty of causing the death of Inspector Mohan Chand Sharma of the Special Cell of the Delhi Police in Flat No. 108, L-18, Batla House, in South Delhi’s Jamia Nagar on the 19th of September, 2008, the word ‘closure’ began to ring out on prime time television.  We were given to believe that the infamous ‘Batla House Encounter’ case had finally achieved closure. That the ‘martyrdom’ and sacrifice of Inspector Mohan Chand Sharma had now been vindicated. That all unseemly controversy could now be put to rest. We were told that it was time to move on.

[ Follow this link for a full text of Shastri’s judgement on the Batla House Encounter at the Saket Court on the 25th of July ]

Good Cop, Bad Cop
Coming as it did, in the wake of the disturbing revelations of the course that the ‘Ishrat Jahan Encounter Case’ was taking, the sessions court’s verdict in the Batla House Encounter was a perfect opportunity for those who want to reassure themselves that we are not actually living in a nightmare where men and women disappear in broad daylight to discuss matters of closure, or the lack of it.

If ‘Ishrat Jahan’ was the ‘bad encounter’, then Batla House, overnight, became the ‘good encounter’. Some people, especially those who are in permanent occupation of what is called the ‘middle ground’ in Indian public life (which is another word for prime time), attempting to be reasonable, even put out that it was perhaps the ‘not so bad encounter’. There were shades of grey here, we were assured. Here was a ‘good cop, bad cop’ routine, played out between Gujarat and Delhi, between 2004 and 2008, over the dead bodies of a few young men, one policeman and one young woman.

[  Numbers and Politics : An Aside on Competitive Killing as Standard Operating Procedure ]
[ National Human Rights Commission (NHRC) data indicate there have been 555 alleged fake encounters, i.e, extra judicial assassinations, in this country through the last five years,  most of of which are still currently under investigation. The ‘Batla House’ Encounter, belonging as it does to 2008, falls under an earlier wave of killings. We know, for instance, that between From 2008-09 to June 2011, the NHRC recorded 369 cases of alleged fake encounters. And that between 2002-2007, there were 440 cases of alleged fake encounters. What happened in L-18 Batla House on that morning in September, 2008, if it was a fake encounter, was by no means exceptional. Policemen and security forces shooting people in cold blood, without trial, is not an exceptional procedure in this country, and it does not matter whether the police or security forces concerned are acting in a  state ruled by the Congress, the BJP, or any other party, for that matter.

It is interesting to note that the BJP, which was crying itself hoarse only a few days ago about the need to talk about ‘encounters’ in Congress ruled states in response to the discussion of the ‘Ishrat Jahan Encounter’ investigation, should now be celebrating the papering over of a similarly contentious ‘encounter’ – (Batla House) even though it took place in Delhi, a Congress ruled state, where the people implicated are the Delhi Police, which both now and at the time, is/was answerable to the Congress led UPA coalition at the centre in general, and to a Congress politician who held the Home Ministry in particular. If the BJP’s complaints about ‘discriminatory and biased’ media attention about the record of Narendra Modi’s years in power in Gujarat had any real substance, they would have called for a tough investigation of the Batla House encounter, even if just to prove that ‘fake encounters’ are not a BJP specific problem. It does not surprise me in the least that they did not do so. And that predictable hypocrisy is in fact a BJP specific problem, even if fake encounters per se are not.

The fake ‘encounter’ is standard operating procedure, a common tool of governance, that is not the exception but the rule as far as Indian state’s response to what it calls terrorism is concerned. It would not be incorrect to argue that the fake encounter and terrorism are inextricably linked to each other. Each fake encounter creates the rage that fuels a genuine terrorist, and the fake encounters continue because the state sees the existence of terrorism (which is then used as the justification for the machinery of repression) as absolutely vital to its functioning. ]

Anatomy of a Judgement
A judgement in the sessions court is not the end of the world. It will no doubt be appealed, in theDelhi High Court, and if necessary at the Supreme Court. This judgement is so cavalier that in fact it must be appealed. But a judgement, even at a sessions court level, does set a tone. It creates an atmosphere. It produces a scenario, and it is to this scenario that we must now turn to understand the obscenity of the usage of the word ‘closure’ when it comes to the Batla House encounter.

There has been a great deal of writing and discussion, especially on this forum, of what exactly happened, and what might have happened on that day in Batla House. (See list of links to posts on Kafila about the Batla House Encounter at the end of this post). And it is not necessary for me to reprise all the details. But a few facts bear repetition.

The police version has it that two young men escaped from the ‘Encounter’ scene. One of these was the man who is now identified as Shahzad Ahmad. The prosecution’s argument in this case is

a) he was present that day in Batla House.
b) he fired upon Mohan Chand Sharma.
c) that he escaped.

(c follows from a, his escape only makes sense if he was present. If he was present, and either not shot or arrested, then he must have escaped. So the most crucial thing to establish is his presence.)

This is all that the prosecution’s argument attempts to do, and this is where the judgement, in finding him guilty, concurs with the prosecution argument. If he was present, he must be guilty. If he has to be found guilty, he must be shown to have been present.

The prosecution’s argument about Shahzad’s presence in Batla House rests on four things.

1. The testimonies of the policemen who went to raid the house. They said two men escaped (and that these two men had also fired at the raiding party, along with the two other  men who were killed in the encounter) . They did not explain how they escaped, or offered implausible explanations, and were unable to offer any descriptions of the two men. But, when the man called Shahzad was caught two years later, they agreed that Shahzad was one of the two men who escaped. They all recognized the man that they were unable to describe.

2. A passport that was found, apparently on the premises, (and recovered in connection with a separate case, by a separate investigating officer) which had expired more than a year prior to the incident, but which, it is alleged, belonged to Shahzad. Nothing else, not even a shirt, or a toothbrush, was recovered from the crime scene that could be linked to Shahzad.

3. A railway reservation in the name of three men, one of whom is named as Shahzad Ahmed, for the 24th of September, 2008 (for five days after the encounter) from Delhi to Azamgarh on the Kaifiyat Express. This is held out as proof that the man called Shahzad Ahmed must have intended to be present in Delhi to board the train to Azamgarh on the 24th of September. Hence, he must have been present in Delhi on the 19th of September.

4. A trace of a phone call, or phone calls, roughly seven hours or so before the encounter, from the phone of Atif Ameen, one of the slain men, to a man the police say is Shahzad Ahmed’s father. The police and the prosecution do not say who made these calls, but say that since Atif was not known to Shahzad’s father, the person who makes the call must have been Shahzad.

Let us take each of these claims in turn and examine them with the care that they deserve, because these are matters of life and death.

The Raid and the Escape
Twenty one policemen went on the raid to Batla House. Each one of them is named in the judgement. They were joined by others who arrived while the raid turned into an encounter. Seven policemen went up to the fourth floor of the house where the flat number 108 in Building  L – 18 is located. Two of these seven men waited by the main entrance, close to the staircase. At least fourteen other policemen waited outside the apartment, securing all entries and exits, not just from the apartment, but also from the alley on which the apartment stands. Many of these twenty one men police men were armed, with automatic rifles and with revolvers. We have seen these armed men in photographs from the scene. There were also other very senior policemen who came on the scene. The prosecution makes it appear as if the entry of the raiding party into the apartment was a casual foray, which turned ugly when the occupants of the house started shooting. The judgement attempts to give the impression that the raiding party was inadequately prepared to deal with deadly terrorists. The truth, if we read the details of the depositions by the prosecution witnesses is anything close to this assumption. There were enough armed policemen, there were policemen wearing bullet proof jackets (one is even an exhibit in the trial) there were enough arms and ammunition to take on not just four or five but a whole legion of terrorists. Apart from that, an entire posse of media personnel from different TV channels had clearly been informed in advance, because they were present, in position, before the ‘encounter’ started. That is how we have live video of the proceedings of the encounter. So to say, that a few men went up the stairs and knocked on a flat’s door, and finding it unlocked, walked in and got shot, is implausible, to say the least.

What is even more implausible is the theory that two men, carrying weapons, were able to leave the scene of the crime, down a single narrow staircase that was crowded with policemen, without being stopped, or at least being questioned.

The theory of the two men walking down the staircase has a slight variation. They walked down the staircase and hid in one of the other flats in the building. Earlier, there was an even more interesting theory.The two men jumped more than twenty feet from the roof of the building and then ran away. The ‘jump’ theory was what was being circulated from the very beginning, and it was maintained right up to the 2nd of July, 23 days before the actual conclusion of the trial. When, on the 2nd of July, the defense objected to the jump theory, and requested that the judge actually go to the house and see whether or into it is possible to actually ‘jump and flee’ from the house, the theory got transformed into something like –  ‘they walked down the staircase’ or, ‘they walked down the staircase and hid in one of the flats, and no one had the time to look for them, and in any case, all the people in this Muslim neighborhood will never tell the police the truth’ . If you think these conclusions are surprising then you have not actually read the judgement. Because the judge has no difficulty arriving at these conclusions. Two armed men walked out of the house and climbed down stairs past fourteen policemen who did not stop them wile the encounter was in progress, because they said to the policemen that they were just other neighbors who wanted to get out of the way. At the same time, the same policemen say that no one left the building.

So now we are in a position where the judgement wants us to believe the following –  No one jumped and ran away. Two men walked down the stairs. No one walked down the stairs.

It is true that in quantum mechanics the dilemma of Heisenberg’s Uncertainty Principle makes it impossible for us to determine the position and the momentum of a subatomic particle at the same time, such that it is impossible to determine, were Shahzad Ahmad a subatomic particle, whether he was present or absent in the course of an observation. Unfortunately, grown men are not subatomic particles. And they either walk out of a space, or do not walk out of a space. (Given that is already established that they have not jumped away like Spiderman).

[Thanks are due to Dhruv {See Comments, below} for pointing out the error in the unmediated invocation at this point in the text of the related but distinct dilemma of Schroedinger’s Cat. ]

The Nature of Witnesses
The entire prosecution’s case is built on the assumption that we must believe policemen because they are policemen. In any normal criminal trial, there has to be the concurrence of independent witnesses for a police version to have credibility. In this case there are many independent witnesses. There is a young man who was present throughout the encounter in that house and who is currently under arrest – Mohammad Saif, and he says that Shahzad was not in the house. Another man, Zeeshan, who left the house earlier in the morning says that Shahzad was not there when he left. In any ordinary trial, their testimony would have a bearing on the prosecution’s argument. After all, one of them was as much there as the policemen. But, somehow, it doesn’t. Not here.

There were also people in the neighborhood, on the street, who saw everything that happened, saw who came in and went out of the house. But no one is listed as a witness. A neighbour called Owais Malik actually called up the Jamia Nagar police station to inform them that a shoot out was in progress. He is listed, but he is not asked about what he thought happened.

And the explanation for this given in the judgement is that it can be understood that they (the neighbors) would not be forthcoming because, as the prosecutor stated “…majority of the residents of that area of the religion as was those of the suspects. If the police officers tried to involve any such local resident, it would have created social unrest in that area, causing fear to the life of those police persons even”. So from now on,  are we given to understand that it can be generally accepted that out of due consideration for the ‘fear of the life of the police persons even‘,  Hindu defendants must have Muslim witnesses and Muslim defendants must have Christian witnesses, and as for the poor Parsis, there are so few of them that if they are ever accused of committing crime, , they must be content (in the absence of a commensurate demographic match between defendant and witness) with having hardly anyone at all to speak in their favor. This too, I suppose,  is a kind of closure.

Seizures and Verification
Similarly, in any murder investigation, items gathered from the scene of the crime have to be listed and this list has to be attested to by an independent witness, someone who is not a policeman. The ‘passport’ harvested from the scene of the crime is neither listed immediately in the seizure list (it ‘appears’ on the scene when an investigative officer from the Karol Bagh thana makes his appearance in connection with the queries he has about the relation of the occupants of the house to the bomb blasts. But even then, there is no independent attestation of the discovery of this so called ‘crucial’ piece of evidence. How can we be certain that this was not planted, ex post facto ?

The Reservation Slip
The reservation slip containing Shahzad’s name is produced courtesy the Indian Railways. We are not told how the police came to have possession of it. Merely that they have it, and that it has been verified by a railway clerk. Why a terrorist would wait for more than a week after he has set off bombs in a city to make his getaway, and do so by buying tickets from the Indian railways on his own name remains an enigma. If the dreaded ‘Indian Mujahideen (IM)’ have the operational intelligence to set off simultaneous bombs in major Indian cities, surely they can be relied upon to have a slightly more sophisticated escape strategy. But these details do not bother either the prosecution or the judge. They have a reservation slip, and that is their ticket to a conviction.

The Phone Call
Then there is the phone call. We know from the text of the judgement that after being arrested in February 2010, the police made a recording of Shahzad’s voice in order to match it with the voice in the call intercepted by them from Atif’s phone ( No. 9811004309) to the man they say is Shahzad’s father. However, no attempt to make this match seems to have occurred. If they do have a recording of the original call, and a recording of a subsequent voice sample, at least making them match would prove that the bearer of the voice used that phone seven or so hours before the encounter. It would still not prove that the bearer of the voice fired a gun, but it would at least prove that the voice had spoken into that phone. But this is not done. The defense argues that not bringing the original phone tap and the subsequent voice sample into the court amounts to suppression of evidence. But the judge does not pay attention. And so, a call is invoked, but we are not able to hear it.

Things get curiouser with this phone call, as we know they tend to do (from the past experience of the 13 December case) whenever phones ring in a terrorism related investigation in this country.

There is curious observation on page 24 of the judgement and it is worthwhile to quote the exact language of the judgement.

“As per Sh. Bhisham Singh, Additional DCP Crime Branch (Prosecution Witness 26), in September 2008 after interrogation of accused Shahzad Ahmad and from analyzing call details of phone, it was revealed to him that accused Shahzad Ahmad was using a mobile No. 9811004309 to speak to his mother and father, while he was staying at Batla House and said phone was in the name of Atif Ameen. He handed over ownership detail, CDR of said mobile phone to the IO (investigating officer) of this case”

Time Travel
The anomaly is not noticeable at first glance. A policeman interrogated the accused and got some information about a phone he was using, after which he analyzed the call records of that phone and found who it belonged to and then passed on this information to the investigating officer. The problem is with the date of said interrogation. The judge clearly says, that the interrogation of Shazad Ahmed by Sh. Bhisham Singh took place in September 2008 (presumably soon after the encounter itself). But from what we know so far. Shahzad was absconding in September 2008. No one knew where he was. The police got to him only in February 2010. So how can a missing Shahzad be interrogated to produce a revelation that will link him to a phone number belonging to a dead man that will then be used to catch him (it is the call record of this phone number belonging to the dead Atif that identifies him, Shahzad – through his father- who’s phone receives the phone calls from Atif’s phone) and nail his guilt. So the missing Shahzad says things to a police man who interrogates him that are used to find him and make sure that he is no longer missing. Notice the pattern, a man walks jumps. He does not jump. He walks down a staircase and out of a building, He does not walk down a staircase and out of a building. He is missing and not missing at the same time. He is interrogated, he is at large.

Meanwhile, in an aside, the judge admits that there is something unusual about the deaths of Atif and Sajid. The post mortem reports of the two deceased men does mention lacerations and wounds at ‘the back of the chest’ and ‘deep muscle wounds on the middle of the front of the right leg’ (Sajid), and  ‘abrasions on the knee cap’ and lacerations on the ‘back of chest’ and ‘front of the middle of the right leg’. The fact that at least one of them has bullet holes on top of his skull, which indicate that the man was shot from above at close range, ensuring that this was not by any means the result of ‘firing in self defense’,  evades the attention of the judge. But we will let that be for now. Let us stick to what the judge does say about the injuries on the body of the two dead accused. He says – that he ‘finds weight in the learned additional public prosecutor’s argument that these injuries were caused when said persons fell down on the floor after being shot.” Which is all very well. But said injuries are not consistent with said persons falling down on the floor. For them to be consistent, they all need to be either on the front or on the back, depending on how the body has fallen. If there are injuries on the ‘back of the chest’ and on the ‘knee cap’ and ‘front of the leg’ of the same person, then they cannot be explained away as the result of a fall. A person cannot fall on his front and on his back at the same time.

Guns and Bullets and Missing Guns and Bullets
Finally, comes the question of the gun, and bullets. Several guns were apparently recovered from the crime scene. There was an AK 47 with cartridges, pistols (made in China), spent bullets, cartridges and live ammunition. All the bullets found match the guns that were said to be found at the crime scene (be they in the hands of the police, or the alleged terrorists). But the gun that Shahzad is said to have carried was not found. The police say he threw it into a canal near Bulandshahar in UP, and that the flow of water carried it away. The problem is, no bullets were found on M. C. Sharma’s body either. He was shot, but the bullets that he was shot with are missing. So we have no idea about which gun was used to fire at him. In other words, as long as there was a gun, any gun, it would do. The police say that the two men they killed fired at him. And that the two men who escaped, including Shahzad,  also fired at him. The guns that the police say that the two men who died used (and we have only the police’s word for this) match the bullets that were found on location.

But how can one say that the bullets that were not found match the gun that was also not found. The addition of two unknown’s does not make for something we can say we know.

And yet, this is the basis on which it is argued that Shahzad was one of the people who shot at M. C. Sharma. We know that M. C, Sharma died of gunshot wounds (where and when and how these wounds occurred or might have occurred, is another story altogether, and has been dealt with elsewhere). We do not know which bullets entered his body and killed him. We do not know which gun or guns fired those bullets. We do not know which gun Shahzad had in his hand, (if he had a gun, if he was present) therefore, according to the prosecution, Shahzad, who may not have been there, who may not have had a gun in his hand, which may not have had the bullets that killed M.C. Sharma, is guilty of his murder.

Uncommon Intention and the Non-Proof of Terrorism – The Impossibility of Closure
Why, because the judge says that he had a ‘common intention’ along with the other occupants of the house. And yet, the judge, on page 41 of this 46 page judgement also says, that the defense council has pointed out that  “it has not been proved on file…that the occupants of flat number 108, including the accused were active members of the Indian Mujahideen” (in other words, there is no proof that they were terrorists)

He goes on to say – “True, there is no evidence on record to establish that fact. At the same time, this court cannot be expected to endeavor in giving any finding about said fact. For the purpose of decision of this case it hardly matters as to whether accused was affiliated to Indian Mujahideen or not”.

What exactly does this mean ? it means that the judge admits to the fact that there is no proof that the occupants of Flat 108, L-18 Batla House were the dreaded ‘IM’ module that M.C.Sharma and his colleagues went in to bust. But the people who cannot be proven to be the IM terrorists, can, nevertheless be seen to have sufficient motive to shoot at the police party that came after them on the assumption that they were in fact IM terrorists, which as we have seen is impossible to prove.

If this is ‘common intention’ we need new definitions of both what it means for something to be common, and for something to be intended. Four young men do not have terrorist affiliation in common, (because this has not been proven) and yet, they are guilty because someone got shot in the presence of some of them. Two of them are dead, so they cannot be sentenced, because we have not yet reached that acme of judicial innovation where we can sentence dead men to die. It is asserted that one of them (Shahzad) was there, contrary to any reasonable standard of proof, but it is reiterated that he was there, again, because a policeman got shot at, and who but the unprovable terrorists could have shot him? And since the police are not terrorists, those who cannot proven to be terrorists must at least be found guilty of an act that they would have done, if they were terrorists.

A lot of ‘ifs’, ‘buts’ and ‘would haves’ to hang a single conviction on, and yet we have it, a verdict of guilty. Just as in the middle ages we had verdicts of guilt based on whether or not an accused person flinched in pain when he or she was branded with a hot iron rod. It was called justice then. This is called justice now.

And this is what must give us ‘closure’.

[Having pronounced his verdict on the 25th of July, today, on the 29th of July, the 2nd Additional Sessions Judge of the Saket Court is due to announce the sentence on Shahzad Ahmed.]

Update : Tuesday, July 30, 2013

Shahzad Ahmed, has got life imprisonment and has been asked to pay a fine of 95,000 for his alleged role in the killing of Inspector M.C.Sharma in the Batla House Encounter Case.

All those who worked tirelessly to demolish the prosecution arguments and the a section of the media’s propaganda around the case ( the teachers and professors of Jamia Millia Islamia who are a part of JTSA, Shahzad Ahmed’s defense counsel, Mr. Tamta, the RTI activist Afroze Alam Sahil, and many journalists who followed the case, and others committed to justice ) really deserve to be congratulated. Their work has paid off, even if in a small measure. It is good to know that the judge could not bring himself to award the death penalty, (probably because the prosecution’s case was so weak anyway) but the sentence of life imprisonment is not something to be celebrated, as it has by no means been established that Shahzad is guilty.

There is no reason to be complacent. The guilty verdict still needs to be challenged. Shahzad Ahmed (or any young person) must not be condemned to a life in prison if their guilt cannot be satisfactorily established.

A List of Kafila Resources on the Batla House Encounter

Report on the Batla House ‘encounter’

A Little Less Melodrama and a Lot More Forensics

The Jamia Nagar Encounter: ‘Curioser and Curioser’

Delhi Police Special Cell – Encounters, Frame-ups, Impunity: Manisha Sethi

Swami & Friends: JTSA’s response to Praveen Swami

Batla House and the problem with the deluded journalist: Manisha Sethi

Jamia Teachers’ Solidarity Group: Some Questions for the Delhi Police and Embedded ‘Journalists’

JTSA lists some more ‘genuine’ encounters in Delhi for the Home Minister

Revealed: The Jihadi Literature that Delhi Police Recovered from the Terrorists They Killed in Batla House

JTSA welcomes the SIT report on Ishrat Jahan, demands free and fair probe into Batla House ‘Encounter’

Ravinder Tyagi of Batla House (in)fame in yet another frame up!: JTSA

Batla House ‘Encounter’: Whom is the JP Trauma Centre Shielding?

A Tale of Two Encounters – Dehradun and Batla House: Jamia Teachers Solidarity Group

34 thoughts on “The Batla House Judgement and the Impossibility of Closure”

  1. Subramanian Swamy (who has also been called “maverick”) himself had challenged Digvijay Singh’s position on this, Digvijay Singh I believe pointed to the Home Minster Mr. P. Chidambaram as responsible for denying a probe into the Batla House encounter (reference: ).

    Whether that is mere politicking or not, finally the probe happened. A probe and trial puts a lot of things into the open. It is good. It is a step towards “closure” for all parties, including the wife of the slain inspector too (not to forget). Of course it will never satisfy all parties but it is better than keeping the encounter completely mired in darkness.

    On the other hand if we postulate apriori that closures are impossible then how can we support the call for probe on the alleged case of killing of Muslim youths in Hashimpura. I think probes are always good to throw light into how these things happen. Democracy cannot work without institutions like courts and so on, however imperfect they be.

    1. For the response you’ve come up with, you might as well have been the judge in this case!

      Your statement, :”Democracy cannot work without institutions like courts and so on, however imperfect they be” is staggering. It’s because they are imperfect that courts of law and systems of justice are built on presumption of innocence. There’s nothing in this case that we’ve heard or read that proves otherwise.

      1. If all these things Shuddhabrata has claimed to be facts in this article were indeed facts, the lawyers for the accused would (and should) have presented them to the Court in the first place. If they had done so and were able to prove that these were facts, the outcome would have been different, is it not ? Unless you say that the defense lawyers were incompetent or malicious, the conclusion is obvious.

        I have a challenge for Shuddhabrata.

        There is a way to appeal any verdict. If he is serious at all, Shuddhabrata should print a copy of his article and give it to the lawyers for the accused. Will they bother to use at least one of Sudhdhabrata’s points in their legal arguments ? If not, why not ?

        The only think Shuddhabrata “catches” here is the bad grammar on Page 24 which causes the timeline open to confusions. Unless the police were utter idiots who believe in Time Travel (as Shuddha thinks), the “September 2008” thrown at the wrong place in that sentence must refer to the time of the CDR (call detailed records) only and not the time of interrogation. I will readily offer that rebuke from Shuddhabrata is perfectly in order for those who drafted such bad sentences !

        1. I know from those who attended the hearings that the weaknesses (the failure to match the voice samples, discrepancies in the seizure report, anomalies in the post mortem reports, the ‘passport’ controversy) in the prosecution’s case were robustly challenged by the defense lawyer. There are also news reports to this effect, some of which are linked to in this post.That the text of the judgement (which is what I have worked with here) does not reflect this shows the weakness of the judgement not of the arguments of the defense lawyers.

        2. Denial of justice doesn’t always owe itself to poorly-prepared and/or inept lawyers and a weak case. It’s no secret that lower courts have often acted in haste. They have been known to overlook or ignore facts in cases, which has led the higher courts to overturn their decisions on many, many occasions, often with a word of rebuke. Let’s not kid ourselves about the fairness of the justice system. And, the less said about the police the better

          1. Kunal,

            You make a very important point. The incompetence and corruption in our lower courts is astounding. It makes you wonder how these officials are selected and whether there are any checks and balances. At some point, this is going to be reflected in the quality of the High Courts and the Supreme Court itself. Perhaps the effect is already there. We cannot keep pretending for long that somehow our High Courts and the Supreme Court are miraculously going to be “world class” while the rest of the judicial system continues to be abysmal. If nothing else, our higher courts are going to get overloaded with appeals — as it is, the backlog is going to take 200 years or so to clear.

            Kaushik Basu once said and not as a joke that India is the only country which runs a free market in things which not even market economies would dare to do so. Not even the most ardent free marketeer would suggest that the justice system ought to be run on free market principles. And yet in many of our lower courts, that is exactly what happens: if you have money, you can get any judgement. Most would have forgotten but there was an incident a few years in which some journalists managed to get a warrant against the then president, Abdul Kalam. They said it was to expose what was going on. As usual, after a few weeks it was forgotten.

            In cases like the one at hand, I would be very sceptical until the appeals process is over. And I’d be sceptical even then. For those who disagree with Shuddhabrata, a request: rather than attacking him personally, try to find holes in his reasoning. You’ll be doing everyone a service.

            And incidentally, for those who don’t trust Kaushik Basu, I’d refer you to Rajeev Dhavan — see his introduction to Marc Galanter’s classic Law and Society in Modern India who makes roughly the same point.

            1. ‘A la’ putting of words into some one else’s mouth, you have put ideas into the heads of people like Kaushik Basu and perhaps even Dhavan, and pulled these out in opportune time to suit your sophistry.

              In effect, you have argued that since some of the lower courts were corrupt, every lower court must be corrupt and specifically that the court that gave this verdict must too be ! What a third-rate reasoning ! It is like saying your neighbour’s wife was unfaithful, so yours must be too. Of course, I am not saying that every lower court is corruption free which would be a strong statement to make, and I see no reason to make such a statement — precisely because there is a lot of corruption and nexus and father-son-uncle-nephew judge networks in our system. The caste system of judgeship running within brotherhoods and coteries, families and conjugations; including favorite appointments / career paths with benefits as recently alleged by one Bengali gentleman judge Bhaskar Bhattacharya as well as previously alleged in the in-camera sex CD case etc point to its existence. But the point of the original article we are commenting on is not judicial failings in general but whether this particular judgement is “acceptable” (i.e. brings closure) to one of the parties or not. It is a partisan view in which there is a “desired” outcome which when not obtained, is unsatisfactory. This is simply the nature of litigation and dispute. One wins, and the other loses. But there is an appeals process which can address it, in a much better and just manner, than a media trial !

              Now to revisit what Kaushik Basu says about the judiciary, I could only find “Words Don’t Feed the Poor” — which was an impressive read and is highly recommended. What Kaushik Basu says there is that socially unacceptable contracts should be thrown out even if they appear to be “free market”. Certainly that makes sense but can’t be used justify your convoluted logic, however much you stretch it, that he is talking about the “free market” where you can buy judgements.

              Giving “young boys” the license to do criminal acts and get away with it, will only build for us a permissive socieity with a higher social cost which everyone will have bear the burden of. Allowing romantic notions about “young boys” and a picture of a corrupt judge issuing baseless warrants may add up in your head to take you to the wrong conclusions. That misstep, if not intentional, is just a human failing. But if intentional, then it is clearly Goebbelasian and not in the realm of any rational discourse !

          2. How can one rely on the “justice” dispensed by trial courts of a nation whose apex court bases its judgements on circumstantial evidence & sends people to gallows just to satisfy nation’s collective conscience..!

  2. I support every point that Shuddha has made in his excellent essay. Those of us who saw the events unfold know that every question and every doubt that Shuddha raises should have been addressed by the media and the trial court. Instead, they chose to corroborate the police version while helping to `manufacture’ evidence. There is something rotten in the state of this country.

    1. yes I agree the rotteness of the country is due to leftisits and so called liberals

  3. The basic fact that till date this terrorist cant provide any proof that he was not at batla house on that day further call record proves he was with another ISLAMIST TERRORIST atif, hence case closed. This case is a reason why ARMY NEEDS AFSPA.

    1. good lord !!! what a reason to continue afspa… dude next time please try to show basic reasoning skills

  4. Seriously, I agree with Shohini. Sometime I wonder if it is so easy to take the judiciary for a ride. Last article in Tehelka of “Arushi Talwar case –” also mentions so many anomalies in the case that it makes one wonder the seriousness of judiciary in finding the truth. You can only feel sorry for death of these young boys and their families.

    1. Raghu’s example shows his ignorance or bias, or both. The Talwars’ case exposes the CBI as inept and bungling, not the court. In any case that case is not finished ! Also Raghu suggestively calls them “young boys” who should get special treatment, but these were not juveniles at all. They did not claim to be juveniles. Raghu is mistaken or trying to mislead.

  5. How conveniently have you overlooked the fact that a policeman was killed. If he was killed, means those who were there weren’t saints. Also, I know through first hand information that initially when police tried to enter the compound, they were obstructed amid slogans of “Pakistan Zindabad”. Do you expect such neighbourhood to tell the truth?
    It is articles like these which provide them the fodder to propagate a sense of FALSE victim hood. Grow-up and be responsible. More than the state, its people like you who are responsible for spread of terrorism.
    By your assertion, in every case, if anybody is getting punished, there always something amiss and if they are not then only “justice has been done”. Thank heavens that people dont listen to moron like you.
    Also, if a political party like BJP comes out in support of the case its hypocrite, if it opposes its opportunist. At least here one should commend them for rising above party line.

    1. You cannot make any unbiased sane person believe that some Muslims in Batla House shouted “Pakistan Zindabad” when policemen landed there. It cannot happen in any Muslim locality in India. Even no ordinary Muslim citizen can shout this slogan in Kashmir. If police reported that they heard this slogan, they are definitely telling a lie. Another point: None will dare shout anything that can potentially anger policemen who have guns in their hand, they are wearing bullet-proof jacket and apparently looking for terrorists. What Shuddhabrata Sengupta writes here were reported by the expert team led by eminent legal rights activist Prashant Bhushan in 2008. That team and also other experts who visited the spot said that the staircase could have been the only escape route for anyone there. At least 14 policemen with guns in their hands were “looking for terrorists” there around the staircase. Can anyone believe that those two boys hoodwinked those policemen and escaped from the floor or building taking the staircase?

  6. Mr. Sengupta,

    An interesting read.

    However what is your stand on Atin Ameen? Do you suggest that Ameen too was innocent or do you accept that he was indeed a part of the IM and if I’m not mistaken, the chief bomb-maker.

    Secondly, why do you think the police would stage a fake encounter, from which two of these guys escape, followed by an arrest in Azamgarh – why would they go all the way to arrest this chap and implicate him in the case? Two dead terrorists is any day a pretty good catch for the police – medals would have been handed out – if Shazad’s arrest was to be a cover-up because they were afraid of him talking – why not off him in an encounter too? Why go through the rigour of a trial?


  7. Dear Kafila,
    Fortunately for Indians, you are not the courts. Go in appeal for all I care. But as of now, till this verdict is overturned, your ‘young guy’ is a terrorist. He would have been killed at the scene had he not run away. I hope the Court awards him death punishment. Only that will mean closure for the martyrs’ family in particular and Indians in general.

  8. You must be really proud of yourself, author. You are misleading an entire generation with your lies.

  9. Dear Shuddha,
    Thank you for this piece. Wish I could be there at the hearing to see for myself this amazing travesty of justice.
    I think there are many questions which have been raised. The questions are not there to provide alternative answers or provide another theory as to what happened. The questions are there to show that the evidence (used to convict Shahzad Ahmed), is not good enough to pass muster in a court of law. The judge seems to have been determined to pronounce the man guilty. I hope the higher courts take the inconsistencies in the evidence more seriously – a man’s life and freedom is in question. Else, it will further cement the notion that an inferior quality of justice is available to Muslims accused of terrorism. In fact, it is judgments like these that create vicious cycles of violence.

  10. Sir, Schrodinger cat is not about determining the position and velocity/momentum of a subatomic particle.'s_cat
    Clearly, you meant Heienberg’s Uncertainity Principle.

    Science is both exact and exacting unlike humanities or lierature (fiction writing, for example).

    Taken a screenshot of this submission, and will keep monitioring publishing. Hope, it does not meet the same fate as my earlier critical but polite submissions at this site.

    1. Dear Dhruv,

      Many thanks for your correction. I will correct the text of the post accordingly (acknowledging you). Apologies for this error. I cannot speak for everyone else on Kafila (we have a policy that says that each author determines what they allow as comments on their post) but I do not recall restricting comments that are relevant to the specific discussion at hand, critical and polite. Do let me know if any comment of yours on any post of mine has been restricted before. I think, that if you follow my posts, you will see that there are often very harshly critical comments on what I write.

      I am still catching up with my poor physics. You are right, the demands of invoking a scientific metaphor are more rigorous than most of us trained in the humanities care to understand. I am always grateful for the vigilant and critical reader.



  11. @Kumar,

    I accept your rebuke to the extent that what I wrote about Kaushik Basu is not an exact quote. Apologies. But here is what I had in mind – it is a long time since I read that the article and I had to spend some time tracking it down.

    From Basu’s Budget in the time of restructuring: Reflections on restructuring published in the Economic and Political Weekly, Vol 26, No. 35, August 31, 1991, pages 2053-2056:

    Though we frequently fret that the Indian economy is excessively controlled and
    market is unable to function, it is worth being clear that it is not really a problem of more or less control but of control in the wrong areas.

    In certain domains the Indian market functions more smoothly than in most other countries. Here we can buy the Co-operation’ of the income tax official; we can buy driving licenses; we can pay our way out of having to do pollution checks on our vehicles. Those who believe that everything should have a market price would do well to tour the Bihar economy to find out what one of the closest real-life approximations of their ideal looks like.

    I have already apologized but I do so again if what I wrote is a misleading paraphrase of what is written above.

    I’ll not respond to the remainder of your tripe.

  12. @Kumar.

    Before I get to “the point of the original article”, which you’ve so eloquently, and with the “sophistry” you’re accusing others of, reduced to one of merely being “acceptable”, let me say that, as far as drawing parallels go, yours about the neighbour’s wife is pushing Modi’s analogy of the puppy for crudeness.

    So, according to you, this case is about what ‘is “acceptable” (i.e. brings closure) to one of the parties or not.’ Closure, as Edward Linenthal described it, is a horrific, pop-psychology term. It’s not available on tap because, as he says, traumatic events and pain have to be endured and not resolved. Unless, of course, we’re characters in a film. You say this case is about what is acceptable to one of the two parties. I didn’t know that justice systems were designed to cater to acceptability. I thought courts are meant to try cases on the basis of facts available to them and this case, as we’ve seen, has so many holes that it just doesn’t stand against reason. And, you have to be terribly naïve to club it with regular cases of litigation and dispute, although, I agree, the apathy, the corruption and inefficiency are consistent at all levels. This case goes to lack of transparency, bias, prejudice and so much more that is wrong with us today.

    When talking about “romantic notions” about “young boys” being given “the license to do criminal acts and get away”, I guess you’re referring to the juvenile system of justice. Wow, you sure do have a way with words, don’t you? Not just in India but around the world. these processes are based on carefully considered, serious ideas and not knee-jerk reactions like yours.

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