The Burden of Proof

Or Why India has to do much more to gather evidence to pin down Pakistan

Hindustan Times October 3,2006

There is an element of the theatre in today's terrorist violence. The attack on the twin towers, the plan to simultaneously bomb trans-continental passenger jets and the Mumbai blasts of 1993 and 2006 all manifested this. Over the years, those who are involved in counter-terrorism, too, have understood the importance of the dramatic in their work. Modern terrorism is about winning hearts and minds, just as defeating it requires a strategy to undermine its mesmeric appeal. Some of this was on display last week, when Mumbai Police Commissioner AN Roy announced significant breakthroughs in the 7/11 case. Roy's carefully scripted, and presumably well-rehearsed, press conference was clearly timed to catch the festival season and instil a sense of security among the people. It was also meant to send a signal to Pakistan.

The message was contained in not what Roy said, but what he did not. He provided considerable detail about how the blasts were executed, who executed them, how the bombs were assembled, packed and placed, and so on. But he had little to say about the larger conspiracy: what was the motive, who were the people who sent the RDX, and the 11 Pakistani nationals, two of whom were later killed in a shootout. He did repeatedly say that the conspiracy was "ISI ki taraf se, Lashkar-e-Tayyeba ke dwara" (on behalf of the ISI, executed by the LeT) and masterminded by Azam Cheema, the LeT operations commander, from his camp in Bahawalpur, where several of the bombers were trained. But while he provided great detail on the Indian end of the plot, there was little on the Pakistani part of it - no telephone intercepts, code-sheets, tell-tale Pakistan-supplied passports or even live Pakistanis. And that is where the rub lies.

Almost immediately since, a war of words has broken out across the India-Pakistan border. Islamabad claims it has been falsely accused; Indian critics say that, given the Mumbai charges, the entire concept of the joint mechanism to tackle terrorism is deeply flawed. The media-driven controversy has generated dangerous eddies that threaten to upset the already battered peace process.

Proof is always a major problem in terrorist crime. Under the Anglo-Saxon law that we follow, the burden of proof rests with the prosecution. This law, in contrast to the French one based on Code Napoleon, provides extensive rights to anyone accused of even the most heinous crime. That is why even in colonial India, a police confession was not admissible as evidence. Today, confronted with terrorism, countries who share this tradition like India, Britain and the US, have been attempting to rewrite the old rules regarding evidence and detention, and the admissibility of confessions. The Indian police's weak forensic skills make the collection of information and its fashioning into evidence even more difficult. And this is true of even ordinary criminal cases, leave alone terrorist crimes, where the perpetrator sometimes blows himself up along with the evidence.

Actually, in such cases, getting even the most basic information is sometimes a major problem. Given the enormity of their crimes, terrorists have evolved into super-criminals who are hardened, dedicated and disciplined. For years, the Indian media carried a sketch of Abu Salem with a Gandhi-style cap and moustache and beard, looking something of a Thirties figure. But when he was captured, we found a dapper and clean-shaven man, who could not have been remotely linked with the old sketch.

Now India has named Azam Cheema as a perpetrator. Yet, little is known about him and his background. The Indian Interpol notice has a grainy sketch, and besides his height (1.73m) and his date of birth (1953), there is little else. How accurate this information is, too, cannot be stated with any certainty. So who is the person that we want the Pakistanis to hand over?

Speaking of Salem brings out another problem. Indian media reports are working themselves into a blather about the fact that Pakistan has said that the new mechanism will not be used to hand over anyone. They are not aware that the evidence at the hands of the Mumbai Police was not sufficient to get Abu Salem back from Portugal, and he would not have been extradited had it not been for considerable US pressure on its Nato ally. Expecting Pakistan to hand over someone is like putting the cart before the horse in more ways than one. For one, we do not have an extradition treaty with Pakistan. Second, we do not have the kind of relationship that would enable Pakistan to hand over suspects to India, as it has been doing in the case of the US with regard to Al-Qaeda.

That is exactly what the composite dialogue and the new joint mechanism seek to establish. The standard of proof of the joint mechanism will necessarily not be juridical, but political. That requires shared understanding that terrorism must end and there must be shared commitment to do so. This, given our past history and current tensions, requires considerable patience and effort.

Indian scepticism on Pakistan's commitment to ending terrorism is justified, but it tends to view things in a static mode. Pakistan's reactions towards terrorism are actually quite messy and changing. There is a part of Pakistan, wracked by sectarian killings and growing Talibanisation, which wants to do everything to change things. But there is also a part, unconscionably close to the powers-that-be, which sees jehadis as the only lever against India and Afghanistan, the two countries vital to Pakistan's security. Though involvement of Pakistanis in a terrorist crime in India need not always imply Pakistan's official complicity.

We are being dangerously short-sighted in seeing only the external dimensions of the Mumbai blasts. What the event and recent arms recoveries show is that the communal poison that was injected into Maharashtra two decades ago has now begun to take effect. Where Indian Muslims steered clear of the ISI and its agents in the past, there is now a pool of disaffection that has given rise to the kind of sleeper cells that carried out the recent blasts. The technology-savvy means of communications have become impossible to crack and the local connection prevents the kind of policing as is done in Delhi to detect outside elements.

The big chink in our armour is our inability to effectively police our borders. Roy categorically charged that two Pakistani terrorists had come through Nepal, four through Gujarat and five from Bangladesh. The RDX explosive, too, came from outside, as did the money to finance the operation. While we may be powerless to act against terrorist trainers and masterminds abroad, we can, and should, do much more to interdict terrorists and explosives coming in from outside.

A bit of calm thinking has been reflected in Foreign Secretary Shiv Shankar Menon's remark that we must hold Pakistan to its deeds, not words. In the India-Pakistan context, to expect the latter to tamely hand over the suspects that India wants is expecting too much. For that to happen, India would either have to have compelling proof, or our relations will have to be far, far better than they are today.

Unfortunately, in the current context, public and even some governmental opinion seems more inclined to want to rub Pakistan's nose in the dirt, rather than to see the extent to which they will walk their anti-terrorist talk. While this emotion is understandable from the public at large, it should not be allowed to colour policies whose goals must be to relentlessly do what is best for the country.