Interview/ Ujjwal Nikam, lawyer
A high-profile lawyer, Ujjwal Nikam has argued crucial cases for the government. He was special public prosecutor in the 1993 Mumbai bomb blasts case and the 26/11 attacks case. His arguments led to the conviction of terrorist Ajmal Kasab, who was executed in 2012.
It was during Nikam’s questioning of terrorist David Headley in the US that the role of Tahawwur Rana in the 26/11 attacks came to the fore. With Rana’s deportation to India imminent, Nikam spoke to THE WEEK about the challenges ahead.
Excerpts:
Q/ Now that Tahawwur Rana is likely to be deported to India, what do you think will happen?
A/ First, it’s a great success for India. The US government has in principle decided that those indulging in terrorism in foreign countries will not be given shelter in the US.
The US supreme court has rejected Rana’s review petition. So, legally speaking, he has no option left, and he will be extradited in the shortest possible time. I am expecting that he will be in India within a month to face trial.
Q/ I spoke to Ramesh Mahale, who was chief investigating officer in the 26/11 attacks case, and he said Rana’s name was not in his charge-sheet. Isn’t this a legal problem for India?
A/ No, it is not, because Rana has already been tried for criminal conspiracy in the 26/11 case. So, according to Indian law, and US law, once a criminal has been sentenced, and has undergone the sentence, he cannot be prosecuted for the same offence. It is double jeopardy. So Rana will not be tried for the terror attacks.
Q/ So what now?
A/ He will be tried for the larger criminal conspiracy. Rana has already been convicted by a Chicago court for criminal conspiracy in the Mumbai terror attacks, so he will not be tried again [for those charges]. But the National Investigating Agency, which requested his extradition, has some material that has not been disclosed. Perhaps because the government of India has assured the US, and its supreme court, that Rana would not be tried for the charges he has been convicted by the Chicago court. So the NIA is going to charge him in Delhi.
But I am not interested in who is going to prosecute him. Being a law student, I am more interested in the fact that Rana is key to the entire criminal conspiracy, not only in the 26/11 attacks, but also other things, which I can’t divulge at this juncture.
Q/ Will you be fighting that case, too?
A/ I will not, because the NIA has its own prosecutors in Delhi.
Q/ When did you come to know about Rana’s role?
A/ When Headley made the deposition. I also went through his plea bargain documents [in] the Chicago court. I found that Headley was not going to be extradited as per their law. So filing a case only against him was of no use.
Let me tell you how this idea [to go after Rana] came to my mind. After Kasab’s execution, three government officials and I visited Islamabad. We were there for seven days, holding meetings with the Pakistani home ministry. We assessed their evidence. And I asked the Pakistanis: why are you not prosecuting the key people involved in criminal conspiracy―like Hafiz Saeed and Zakiur Rahman. They said, ‘We have already prosecuted some people.’ I said, ‘You have prosecuted small fish. Saeed and Rahman were still in Pakistan.’
Where is the evidence, they asked. One general said India had not shared the evidence with them. I laughed and said, ‘Look, conspiracy was hatched on your soil. You have to collect the evidence. How can we collect the evidence without your permission?’
They said India did not cooperate, that they had asked for joint investigation in the Mumbai case.
We returned to Delhi and reported to the government of India. Then, one fine morning, I read Headley’s plea bargain agreement. I discussed my idea with the Mumbai Police. They did not approve it. What is the use of Headley, they asked, if he cannot be brought here and tried. I told them: we can make him an approver, because he is an accused. He had visited [Mumbai] before and after the terror attacks. He cannot be extradited, but we can use him.
In English, there is a saying: set a thief to catch a thief. I am from a village, where you remove a thorn using another thorn.
But they did not approve that idea as well. So, I met Devendraji (Devendra Fadnavis), who was CM, and shared this idea. He liked it. I met National Security Adviser Ajit Doval and the US ambassador. They made arrangements for me and IPS officer Atul Chandra Kulkarni to go to Chicago and Washington, where we had a series of meetings.
Then I took evidence from Headley. He [knew] Rana’s immigration centre in Mumbai. He also produced an email correspondence between him and a Lashkar-e-Taiba operative. In that correspondence, Headley has mentioned a diary with mobile numbers of army officials―lieutenant colonel, colonel, brigadier. Who are they, I asked him. He said they were ISI people. They were guiding them for the attack.
S. Jaishankar was then foreign secretary. We shared the evidence with Pakistan, but there was no reply. This is the story of Headley.
Now, Rana is big fish. Because of him, Headley came to Mumbai, and visited Pune and Delhi. Rana would know the details. That is my guess.