The strange pardon of Headley

Transcripts show how the Mumbai attack trial was led astray

Written by Manisha Sethi | Updated: December 1, 2017 12:26 am
David Headley apprpver in 26/11 Mumbai attacks Why was David Headley, accused number 2, converted to a pampered approver and prosecution witness number 1 with such scandalous alacrity?

One more anniversary of the horrendous Mumbai attack passes us by. One more ritual of pointing out what’s wrong with our security apparatus; yet another repeat of castigating Pakistan for protecting Hafiz Saeed. But no one, it seems, is willing to ask why a trial, perhaps one of the most significant trials in a terror case, was allowed to collapse. Why was David Headley, accused number 2, converted to a pampered approver and prosecution witness number 1 with such scandalous alacrity?

On December 10, 2015, Headley, appearing for the first time on a video screen from an undisclosed location alongside his lawyers, expressed his desire to become an approver. It took the Special Public Prosecutor (SPP) Ujjwal Nikam a mere 30 minutes to confer with the investigating officer (IO) and turn in a “No Objection” certificate to the grant of pardon. Apparently, the SPP did not feel compelled to seek instructions from the government to discuss the grave consequences of pardoning the man who had conducted reconnaissance of the sites, photographing and videotaping Taj Mahal and Oberoi hotels, CST station, Leopold café, Colaba police station so that attackers could familiarise themselves with the locations; who had hired boats to select landing sites for the attackers. It strains credulity to think that a decision with such ramifications could have been the result of an impromptu conference between the SPP and the IO.

The charade of legality was reinforced by repeatedly announcing that Headley was now in the custody of the sessions court. It was crucial to fulfill the procedural requirements under the grant of pardon rules. If Headley was truly in the custody of the Indian court, why was Nikam’s argument that the US authorities had been requested only for four days of Headley’s presence accepted by the court in order to reject the defence’s application to defer the cross-examination by a few days? Even the period of Headley’s appearance was beyond the Indian court’s control.

The court records its appreciation of the witness for “facing searching and gruelling cross-examination” — a small price, one would imagine, in return for complete amnesty. If the purpose of accepting Headley’s application to turn approver was the elicitation of the full extent of the terror attack conspiracy, one fails to understand why the prosecution and the court sought to protect him from the defence’s questioning.

In the end, whom did Headley indict? There isn’t a whisper in his testimony about the role, if any, of Syed Zabiuddin (alias “Abu Jundal”), the other accused, who unlike the mollycoddling Headley received, was subjected to months of solitary confinement in an airless bunker. Indeed, Nikam admits that Headley did not even mention him.

Did Headley, then, indict the Pakistani state? He does, after all, provide detailed accounts of the meetings, the shadowy and not-so-shadowy links between ISI and Lashkar, Hizbul Mujahideen and Jaish-e-Mohammad. But just weeks after Headley’s testimony, the government rolled out the carpet for Pakistan’s Joint Investigation Team in Pathankot. So Headley’s pardon was certainly not to nail the complicity of the Pakistani state or its agencies in the attack. And was someone fantasising that they could prosecute and try the assortment of actors named by Headley in his statement: Sajid Meer, Hafiz Saeed, Lakhwi et al. In whose elusive search did the prosecution so willingly renounce Headley’s extradition and trial?

In the end, there is only that 19-year-old girl from Mumbra. There, he said it, was the relieved reaction of sections of the media and the BJP when Headley named Ishrat Jahan as a LeT operative, after much cajoling and prompting by Nikam. “Reopen the Ishrat Files”, frothed many self-righteous news anchors, ruling party spokespersons and retired bureaucrats from intelligence agencies.

Read the Headley transcripts not so much to understand the mind of this double agent masterfully negotiating one plea bargain after another. Read it to understand how the Mumbai attack trial was torpedoed so that the cold-blooded execution of a young girl could be justified and any attempt to unearth the political conspiracy behind it could be buried.

Most of all, read it to understand the falsehood and vacuity of national security ideologies. Those claiming to be the most vociferous upholders of national security turn out ultimately to be its pallbearers.

Sethi is the author of ‘Kafkaland: Law, Prejudice and Counterterrorism in India’

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