Democracy Demands: Justice for Afzal, Repeal of AFSPA

From ML Update, A CPI(ML) Weekly News Magazine

Vol.9 No.41 10-16 OCT 2006

Editorial

The whole of Kashmir is demanding in one voice justice for Afzal Guru. And for once the voice of Kashmir is resonating quite audibly in different corners of the country including the capital city of Delhi. Revolutionary and democratic forces all over India are at one with the people of Kashmir in their common call for review and revocation of the death sentence awarded to Afzal Guru in connection with the December 2001 attack on Parliament.
There are good reasons as to why the demand for clemency for Afzal has become a popular democratic cry beyond the Kashmir valley. While the entire country condemned the attack on Parliament, the case built up by the state and its investigation and prosecution agencies has since been exposed to be full of gaping holes. Attempts made by the Delhi Police to secure conviction of Delhi University Lecturer SAR Geelani in the same case have already been judicially rebuffed. Legal experts have pointed out many loose ends in the whole case and Afzal Guru and his wife Tabassum have complained about custodial torture and denial of their right to get a lawyer of their choice to defend Afzal.

Soon after Tabassum met the President and sought his intervention to stay the death sentence, Advani and Rajnath Singh rushed to Rashtrapati Bhawan to warn him against granting Presidential pardon to Afzal. This is the party which when it was in power had released key terror suspects from jail and sent its senior leader and External Affairs minister in Vajpayee’s cabinet to Kandahar to hand them over to an international terrorist organisation to meet the demands of plane hijackers. It finds nothing wrong in giving in to hijackers’ demands and striking deals with terrorist organisations when it is in power; it rubbishes the Constitution and the Supreme Court in the name of ’faith’, and equally characteristically it feels unnerved by the voice of democracy and reason. Once again the BJP has exposed how utterly it despises and fears democracy.

The death sentence for Afzal on rather shaky grounds and insufficient and doubtful evidence is reflective of the typically dubious and biased manner in which the state has been dealing with terrorism, throwing every notion of human rights and democracy to the winds and often harassing and persecuting entire communities – religious and national minorities – in the name of tackling terrorism. This has been exposed time and again in Kashmir, Punjab and the North-East and now Muslims all over the country are complaining of this vicious bias on the part of the Indian state. Sonia Gandhi and Manmohan Singh had to admit as much in their recent speeches at the Nainital conclave of Chief Ministers of Congress-ruled states. Even as the Congress Chief Minister of Jammu and Kashmir, Gulam Nabi Azad has been compelled to reflect the sentiment of the people of his state to demand clemency for Afzal, the Congress continues to follow in the footsteps of the BJP and turn a deaf ear to the voices of reason and justice.

The anti-democratic attitude of the Congress gets further exposed on the issue of the draconian Armed Forces Special Powers Act. The Act that gives a virtual licence to the Army to kill and rape at will and shields the Army from the long arms of law that grip every common citizen in the country has always been resented by the people as the biggest serial killer of liberty, democracy and dignity of the people. The people of Manipur, the state that has suffered the longest spell of the Act and consequently the bitterest taste of its draconian and barbaric potential, have time and again risen in heroic revolt against this killer Act. Manipur’s spirit of protest and resistance has found its most determined champion in Sharmila Chanu who has been on a fast for the past six years demanding scrapping of the AFSPA. While she holds the state guilty of murdering liberty and justice and waging war on the people, the ’rule of law’ in the country accuses her of attempting suicide! After her recent release from judicial custody in Imphal when she travelled to Delhi, an unnerved UPA government promptly put her back into judicial custody and transferred her to the All India Institute of Medical Sciences. But the government refuses to answer her simple straightforward demand: repeal the AFSPA.

In 2004 when the whole of Manipur was aflame with the fire of people’s resistance after the rape and murder of Manorama, Manmohan Singh had visited Imphal and a commission was set up to probe the AFSPA ’controversy’. The report of the commission headed by former Justice BP Jeevan Reddy has been lying with Manmohan Singh’s government since June 2005. The government has refused to make the report public, let alone implement its unambiguous recommendation to repeal the Act which the Commission has found to have become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.”
When Manmohan Singh goes abroad he pushes speeches and treaties down the throat of Indians that glorify our formal colonial masters and current imperialist bosses and bring only shame, humiliation and insecurity to the country. When he visits Imphal and Vidarbha, he sheds crocodile tears and gives empty assurances that are never fulfilled. Thus the Reddy Commission report has been gathering dust and in Maharasthra farmers have been left ’free’ to hang themselves right within the premises of the state Assembly. This politics of murder and falsehood cannot go on forever. This government must be made to understand that Tabassum and Sharmila are not alone; their cry for justice is a cry of millions in the country. If this cry is ignored, the people’s verdict will soon be out against the killer and liar government. And nobody will be able to hush it up.

CPI (ML) Demands Review and Revocation of Death Sentence Against Mohammad Afzal

CPI(ML) has expressed solidarity with the range of individual citizens and democratic groups demanding that the death sentence against Mohammad Afzal be reviewed and revoked.

The Supreme Court has failed to find any evidence linking Afzal with any banned organisation, and has also held that there is no direct evidence against Afzal. Further, Afzal and his wife Tabassum have declared that Afzal was tortured in custody, denied a lawyer of his own choice, and effectively denied a fair trial.

Afzal’s own claim that he acted under duress and torture on part of the STF deserves further investigation, since it is likely to unravel the facts about the real perpetrators of the attack on Parliament. The role of the investigative agencies in the Parliament attack case was shown to be shoddy at best and biased and illegal at worst. The way in which these agencies tried to frame an innocent DU teacher, who was subsequently acquitted, is still fresh in public memory. Indian people deserve to know the true facts about who is responsible for the attack on Parliament; the hanging of a man without giving him a chance to defend himself will only serve to stall any thorough and impartial investigation.
The hanging of Maqbul Bhatt in the 1980s sparked off a long phase of unrest and insurgency in Kashmir. If Mohammad Afzal is hanged after being denied a just and fair trial, it will irrevocably jeopardise all efforts to forge peace in Kashmir. The death sentence against Afzal has already sparked off mass outrage in Kashmir. In the interests of Indian democracy and justice, it is imperative that the death sentence against Mohammad Afzal be revoked.

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All the following articles have been circulated by South Asia Citizens Wire | October 6-14, 2006 | Dispatch No. 2301.

 Why Afzal Must Not Be Executed

Tehelka, Oct 14 , 2006

Hanging him would be poor statecraft. What’s
worse, the sentence is legally flawed

by Praful Bidwai

* Bidwai is a senior Delhi-based journalist

The “black warrant” issued to Mohammed Afzal for
his involvement in the 2001 Parliament attack has
triggered widespread popular protests in Kashmir
and revulsion among the country’s liberals. Jammu
and Kashmir’s ruling coalition and chief
minister, indeed all parties barring the BJP,
have called for clemency for Afzal. The issue has
precipitated a national-level polarisation
between the opponents and supporters of Afzal’s
execution.

The second camp holds the strangest of
bedfellows: on the one hand, Hindutva
ultra-nationalists, for whom counter-terrorism is
a stick to beat Muslims with, and on the other,
rabid Islamist-separatists like Syed Ali Shah
Geelani, who want a “martyr” to their anti-India
cause.

Among their opponents are those who believe that
hanging Afzal will have terrible political
consequences, much graver than the execution of
Maqbool Butt in 1984, which was among the factors
which greatly increased Kashmiri popular
alienation from India and eventually precipitated
the azaadi movement. The timing of the execution,
on the last Friday of Ramzan, and at a delicate
political juncture, couldn’t have been more
disastrous.

The political argument cannot be lightly
dismissed. Yet, there are three other, weightier,
arguments too.

First and foremost is the moral case against the
death penalty per se - far and away the most
powerful argument. It holds that no individual or
institution has the right to take the life of a
human being. That violates the fundamental human
compact on which any society aspiring to be
civilised is based. Irrespective of their causes
or consequences, there are some things that you
simply don’t do. Killing another person, except
in self-defence, is one. A legitimate State is
duty-bound to defend life, not cause death.

Afzal was guilty not of murder, but of conspiracy
to commit murder. He was tried under POTA which
punishes the second with life imprisonment, the
first with death. Yet, the courts sentenced Afzal
under a much harsher law.

Capital punishment is always unacceptable,
however heinous the crime. It is a crude form of
retribution, in which bloodthirst and revenge
masquerade as righteousness - without remedying
or redeeming the original crime. The death
penalty brutalises society and gives legitimacy
to barbaric revenge.

It’s a proven fact that the best judicial systems
can go wrong by holding an innocent person
guilty. They’re intrinsically fallible. Capital
punishment leaves no room for correction. Death
is final, irreversible.

In the United States, over 500 people have been
executed since the death penalty was reinstated
in 1976. But more than 120 condemned prisoners
were released because they had been wrongfully
convicted. Last year, the only woman ever sent to
the electric chair in Georgia was granted pardon - 60 years too late. She was a Black maid who
killed a White man who held her in slavery and
threatened her life.

Capital punishment is typically awarded to the
poor, illiterate and otherwise underprivileged
people who find it hard to defend themselves.
Former Chief Justice PN Bhagwati, no less, called
it a sentence quintessentially targeted at the
poor.

The death penalty isn’t a deterrent. In Canada,
the homicide rate per 100,000 people fell from
3.09 in 1975, a year before abolition of the
death penalty, to 1.73 in 2003. In 2000, The New
York Times found that over two decades, the
homicide rate in states with the death penalty
was 48 to 101 percent higher than in non-death
penalty states. In India, the state of Travancore
recorded fewer murders after abolition. The US
homicide rate is four times higher than in
abolitionist Europe.

Death is probably even less of a deterrent for
terrorists driven by extremist or deeply
irrational ideologies.

The second, jurisprudential argument pertains to
one of the central doctrines under which numerous
death sentences have been pronounced in India
(and elsewhere): waging war against the State.
This is a modern version of lese majeste, or
affront to the Sovereign or Crown who claims
divine authority.

This early medieval doctrine has an obnoxious
theological origin: treason not only offends
social mores; it’s a crime against God’s
arrangements on earth. Like an unpardonable sin
against God, it “cannot be expiated”, but must be
axiomatically punished by death.

Such reasoning should be abhorrent to any
civilised conscience. In India, a worthy
sentiment is gathering in favour of abrogating
Section 377 of the Indian Penal Code, which
criminalises homosexuality because it’s held be
“against the order of nature”. Lese majeste is
its analogue.

The third argument is a legal one. The punishment
awarded to Afzal is grossly disproportionate.
Afzal was guilty not of murder, but of conspiracy
to commit murder. He was tried under pota, which
makes a clear distinction between terrorist acts
causing death, and conspiracy in causing them. It
punishes the second with life imprisonment, the
first with death.

Yet, the courts sentenced Afzal under a much
harsher law (Section 302 of IPC, etc). But
draconian punishment shouldn’t be applied under a
general criminal law when a terrorism-specific
law is in existence.

Even in the Gandhiji assassination case, the
courts didn’t interpret Section 302 as applying
to conspirators. Gopal Godse, who was deeply
involved in the conspiracy, was not executed; his
brother was.

An element of anti-terrorist zeal is evident in
the simplistic manner in which our courts have
dealt with complex issues of differential
culpability, especially after Indira Gandhi’s
assassination. Kehar Singh was executed although
he did not kill her.

The evidence of conspiracy against Afzal hinges
on his own testimony - he confessed that he
brought one of the five men involved in the
Parliament attack of 2001 from Srinagar to Delhi
and helped him buy a used car - and on the
recovery of explosives from his house, and most
crucially, on records of cellphone calls to the
five.

But the evidence is open to doubt. The explosives
recovery record is not watertight. The police
couldn’t explain why they broke into his house
during his absence while he was in jail - when
the landlord had the key.

The cellphone record traced several calls from
the five men to number 98114-89429. The police
allegedly impounded the instrument from Afzal
while arresting him in Srinagar. The instrument
had no sim card. So the only identity mark was
its imei number, unique to each instrument.

There are only two ways to find this tell-tale
number: open the instrument, or dial a code and
have the number displayed. But the officer who
wrote the recovery memo said on oath that he
neither opened nor operated the instrument.
Besides, the testimonies regarding the date of
purchase of the phone with a new sim card
(December 4) and its first recorded operation
(November 6) don’t match.

The conclusion is plain: there’s a large grey
area in the evidence, which calls for leniency in
determining Afzal’s guilt and punishment. The
courts took the opposite view. This grave flaw
must be corrected.

Afzal’s death sentence violates the Supreme
Court’s own guidelines, which say that capital
punishment should be awarded in "the rarest of
rare cases" - when a murder is conducted in an
extremely brutal, grotesque, diabolical and
revolting manner or is targeted at a specific
community or caste. In the Machhi Singh case, the
court stipulated five considerations: motive,
socially abhorrent nature of the crime (e.g.
targeting dalits or minorities), magnitude, and
the victim’s personality. These don’t
collectively apply to Afzal.

Yet another factor speaks in Afzal’s favour. He
is a surrendered militant, who induced two others
to give up militancy, but was harassed by the
Special Task Force and subjected to extortion. It
was an stf officer, Tariq, who asked Afzal to
bring Mohammed to Delhi. In the murky world of
Kashmir’s insurgency-counter-insurgency, it’s
hard to pinpoint crime and complicity. By all
indications, Afzal got embittered by the stf’s
misdemeanour, extortion and criminality.

Afzal is by no means beyond the pale of reform.
President Kalam should act sagaciously and
commute his sentence. It’s his constitutional and
moral duty to prevent miscarriage of justice and
apply a humane touch.

 Appeal for Presidential Pardon for Mohd Afzal Guru

Sat, 7 Oct 2006

Dilip Simeon

From: Dilip Simeon

To: “DR APJ ABDUL KALAM”  rb.nic.in>
Subject: Appeal for Presidential Pardon for Mohd Afzal Guru

Dear Mr President

This is an appeal for a presidential pardon to
Mohammad Afzal Guru, sentenced to death in
connection with the attack on the Indian
parliament in New Delhi. May I remind you that
five terrorists were killed while carrying out
the attack. Even according to the prosecution,
Afzal Guru was accused of being a facilitator and
not someone directly involved in the attack.
Three others accused in the case have either been
acquitted or had their sentences revoked on
account of faulty evidence.

Mohammad Afzal Guru was the most under-privileged
of the accused and did not have adequate legal
counsel, having to make do with a court-appointed
lawyer. I request Your Excellency to ponder that
rich and privileged persons repeatedly get away
with murder in our country and the mass carnages
of 1984 and 2002 have seen repeated miscarriages
of justice, with barely a handful of sentences
obtained, and ample evidence of police complicity
in criminal acts.

In such a situation, Your Excellency it would be
a grave miscarriage of justice to hang a man who
was not even accused of killing anyone. Such an
action would be pandering to blood-lust and
primitive feelings of revenge, motives that are
completely out of place in a constitutional
system working under the rule of law. It would be
disproportionate according to the Supreme Court’s
understanding that death be awarded only in the
’rarest of rare’ cases.

I would add Your Excellency, that for the State
to kill someone in revenge is a barbarous
practice in any event, and that it is not
sufficient to argue that the needs of justice
require an eye to be taken for an eye. I know
that certain other countries do believe this, and
that militants of various kinds resort to the
heinous practice of political murder. But the
wrong-doing of others is no justification for the
Indian Union to continue with such a cruel
practice. It must rather, set an example in the
exercise of restraint and compassion, by which
alone the rising tide of political violence may
be contained.

Your Excellency, I repeat my appeal to you to
consider favourably the mercy petition on behalf
of Mohammad Afzal Guru and set aside the sentence
of death passed on him

With respectful regards

Dilip Simeon

Senior Research Fellow

Nehru Memorial Museum and Library

New Delhi

Dated October 7, 2006

 Should Mohammad Afzal Guru be hanged?

Issues in Secular Politics, October 2006 I

by Ram Puniyani

CRIME AND PUNISHMENT
Should Mohammad Afzal Guru be hanged?

As per the Supreme Court has given the judgment,
Mohammad Afzal Guru is to be hanged to death on
20^th October 2006. Guru was one of the accused in
the case of assault on the Parliament on 13
December 2001, in which, many a security
personnel were killed. Guru was not found to be
to be part of any terrorist outfit, nor did he
play any direct role in the same. In the trial
which took place the provisions of International
Covenant on Civil and Political Rights had not
been respected. Supreme court noted that there is
no direct evidence of his involvement. The
evidence was mainly circumstantial. All three
courts including Supreme Court have acquitted him
of the charges under POTA of belonging to either
a terrorist organization or a terrorist gang.

Court also noted that the evidence was
fabricated. Most importantly he was not given any
worthwhile legal assistance to defend him during
interrogation. When Ram Jethmalani offered to be
his lawyer the Hindutva goons attacked his
office. One also recalls here that the lawyers
offering to hold the brief of accused in 11 July
2006 Mumbai blasts were also threatened by
Hindutva outfit, a real case of cowardly display
of pseudo patriotism . At best Guru was
facilitator in the crime and not a part of
directly perpetrating the crime. Supreme Court
notes, that "The incident, which resulted in
heavy casualties, had shaken the entire nation
and the collective conscience of the society will
only be satisfied if capital punishment is
awarded to the offender." So does it mean that
the punishment is being given to assuage the
collective national conscience? One must add what
is presented as this conscience is the
consciousness of the section of dominant middle
classes.

Many a Human rights activist of repute sat on a
dharna demanding the commutation of the death
sentence, to life imprisonment. They issued
appeals to the same effect and also have floated
the petitions for clemency. Not to be left behind
another section of activists have floated counter
petitions demanding nothing short of death
penalty for this terrorist. In various talk shows
the angry audience is hooting down those talking
of the facts of the case and asking for leniency
in the light of the holes in the story built by
the police authorities. There are two major
questions involved in the case. One, that death
penalty should be given in the rarest of rare
cases, and two when world over the brutal capital
punishment is being done away with, should we
stick to it. The other peripheral issues which
are trying to undermine the basic issues are the
hysterical nationalism of Hindu right and
sections of society who cannot think that the
crime of those accused of acts of terror also
needs to be proved before they are punished, and
that the punishment has to be commensurate with
the crime. For them once Supreme Court has ruled
the doors for clemency are closed.

The base on which Supreme Court has given the
judgment has been built by the police with
methods which are questionable, which have also
been reprimanded by the court in this case. The
argument on the other side is that if Guru is not
hanged it will be an insult to those who have
laid their lives for defending the parliament.
The other question, which has got mixed up this,
is the fate of peace process, which is going on
in Kashmir and South Asia as a whole. In the
visual media debates, one can see the hysterical
nationalism oozing from every pore of Hindu right
wing and some others. Some Muslim spokespersons
of this or the other party are finding this as
the best opportunity to wear their patriotism on
their sleeves by taking blinded firm positions
against any consideration of clemency. This
became most obvious when Mukhtar Abbas Naqvi of
BJP went to the extent of denying that Bhagat
Singhs kin can ever make a clemency petition in
this case, to the loud applause of the studio
audience. As matter of fact the appeal by Bhagat
Singhs kin Prof Jagmohan Singh and Anand
Patwardhan, the noted documentary film maker and
rights activist, had issued the appeal carried by
the media. It is unlikely that the BJP
spokesperson would have missed it; any way some
times even ignorance is bliss to pursue once
political assertions! The response of letter
writers in the newspaper columns is no different.
Most of them demanding the blood of this
’terrorist’! Nothing else can reflect the state
of social common sense in the society. By now
communal violence has become passé in the
society. It is justified to the extent that those
involved in this are neither punished nor even
looked down upon. On the other hand any body
remotely linked to acts of terror can be hanged
without any pangs of conscience, communal
patriotism at is worst is on display.

While Supreme Court deserves all the respect, one
has to see that the primary investigation done by
the police, whatever its flaws, forms the base of
the judgment. When that investigation has holes
should it be accepted as it is presented? When
the primary culprits are either dead are some of
them absconding, can ’the whole truth be out’? Or
is it that somebody has anyway to be punished to
quench the thirst for revenge, and who better
than the one who has a Muslim name and happens to
be from Kashmir. Kashmir has been reduced to
’our’ real estate, where we are putting lakhs of
our army to deal with couple of thousand of
militants! Surely if there is one Indian soldier
for every seventh Kashmiri, no wonder Kashmiris
will see it as an occupation army. After having
said that the punishment being meted out to Guru
is not commensurate with the crime done by him,
one will also endorse that the very notion of
capital punishment is nothing but barbarism, and
it does not become dignified if it is given to a
terrorist. Many of those otherwise swearing by
non violence are so communalized at core that
they are at the forefront of some or other moves
demanding the hanging of Guru.

One can understand that for RSS and its
affiliates this is the golden opportunity to
display their patriotism, partly also to wash the
sin of accompanying the terrorists to Kandhar by
one of their ministers. One can also understand
the success of RSS in communalizing the social
thinking to the extent that now truth and humane
values have ceased to matter in the face of
communal thinking. Justice is being converted
into revenge and punishment is meant to further
communalize the society rather than a means of
reform, rather than being an occasion to
introspect as to why such crimes are going on.
Surely no one is born a terrorist and no one
likes to resort to these means by choice. What
are the deeper circumstances due to which these
acts of violence are taking place needs to be
given a thought. One understands that terrorism
is a mere symptom of the underlying disease,
which has roots in injustices somewhere. One
understands the terrorism cannot be finished by
killing the terrorists. For that the underlying
causes have to be addressed.

The double standards of our society and legal
system are becoming glaringly apparent. The
perpetrators of communal violence not only get
away with their crimes but also some times they
get promotions, as in the case of Ramdeo Tyagi of
Maharashtra. Hundreds of police officials who
have been named in the inquiry commission reports
are enjoying the ’fruits’ of their crimes of
omission and commission. Thackeray and Modi who
have been the main architects of Mumbai and
Gujarat riots respectively, could not even be
touched by the long arm of law. On the contrary
they landed up increasing their political clout
after presiding over these genocides. While the
perpetrators of Mumbai riots are having a gala
time the culprits of subsequent bomb blasts are
being meted out the punishments due to them. The
general impression is gaining ground in the
society that by now there are two legal systems
in the society. One for the followers of Hindu
communalism, where killer of Pastor Stains, Dara
Singh, is spared the noose and is hailed as Hindu
Dharma Rakshak (protector of Hindu faith), the
perpetrators of communal violence who get away
with ease. The other one is for those who belong
to minorities. In their case even the remotest
association with the terror attacks is ground
enough for hanging or the severest possible
punishment.

In Kashmir, Indian army is seen as the occupation
army, thousands of innocents have been tortured
by this army, Chittsingpura is just a tip of
iceberg. The hanging of Maqbool Bhat in 1984 did
give a feeling of alienation and later a boost to
militancy. Who do we blame for that? Those
calling for a hangman for Guru surely are bent
upon repeating the process. Nation can watch the
hanging of those who have not committed the crime
of such a severe proportion, but while hanging
them what processes will be unleashed need to be
seen overcoming the communal myopia. We must
distinguish between the hysterical nationalism of
the likes of those demanding the hanging and the
humane nationalism wanting to call for
reconsideration of the punishment meted out, to
sooth the feverish pitch of communalized sections
of society. This hanging will surely reinforce
the perception of two sets of legal norms which
are prevalent in the country.

 Capital Punishment: The Afzal Guroo Case

ZNet - October 11, 2006

by Badri Raina

In recent weeks, the Indian public mind (often
cutely managed by a savvy media world), has been
much drawn towards two happenings.

One of these concerns the propagation of
“Gandhigiri” (a rather unfortunate analogue of
“Chamchagiri” or sycophancy, and “Dadagiri” or
ganglordism) by a Bollywood film wherein Gandhi’s
preferred methods of non- violence are sought to
be made applicable to everyday life.
Interestingly, some polls have it that this film
has done more to popularize Gandhi than anything
that has been done hitherto. Some thought that.

The other happening relates to the confirmation
of the death sentence on Afzal Guroo who was one
of the accused in the Parliament attack case
(December 13, 2001).

Amazingly, many of the very same social groups
who are taken in by the Gandhian approach to
problems-as depicted in the film-are also the
ones hot for Afzal’s death by hanging.
Altogether a rather gruesome contradiction. One
would think you can either have Gandhi or you can
have hanging.

Here is what Gandhi had to say on the subject of
capital punishment: "I cannot in all conscience
agree to anyone being sent to the gallows. God
alone can take life because He alone gives it."

Given the high regard in which the Supreme Court
of India is held for its competence and probity,
few ought to question the determination of guilt
it has made in the case of Afzal Guroo. After
all, it is to that competence and probity that
S.A.R. Geelani owes both his life and his
freedom, having been earlier sentenced to death
by the trial court in the very same criminal case.

Gandhi’s allusion to “conscience” here does,
however, seem to rebuke a phrase in the text of
the judgement delivered by the Honourable Court
upholding the death sentence. The Honourable
Court has averred that only the death sentence
would satisfy the “collective conscience” of the
country in the matter. One must ask as to which
order of conscience ought to have taken
precedence in the matter of sentencing-one that
abhors taking life or one that seeks it to
propitiate popular sentiment. In that conundrum,
we stand with the Mahatma.

As we also know, Gandhi’s rejoinder to the Code
of Hammurabi ("eye for an eye, tooth for a
tooth") was a witty and telling one: eye for an
eye and surely one day it would be a blind world!

Staying with Gandhi for a minute, perhaps his
most discomfiting moment in relation to capital
punishment was to come when the revolutionaries,
Bhagat Singh, Sukh Dev and Rajguru were sentenced
by the British to be hung.

The question has often been asked did Gandhi do
all he could to seek their reprieve from King
George, with whom he was then preparing to share
the first Round Table conference. No easy
answers here, although Gandhi did point out to
the colonial government that the sentence was not
an “irreversible” one. He was on several
occasions to plead that there is little he could
do. What, however, is on record in the matter is
the following statement from Gandhi:

"The government certainly had the right to hang
these men. However, there are some rights which
do credit to those who possess them only if they
are enjoyed in name only."
(Collected Works, Ahmedabad, Navjivan, Vol.45, pp.359-61, Gujarati)

The direction from “Gandhigiri”, then, is
explicit enough: you may have the right to
sentence Afzal Guroo to death, but it would do
you credit not to exercise that right.

The problem may be that India’s highly
meritorious forward classes are as severely
brutalized by events as any in America. Thus a
certain tribalism seems to have overtaken their
view of things. It remains a thought,
nonetheless, that the "eye for an eye, tooth for
a tooth" dictum does not obtain in most crimes
committed. For example, no country yet has a law
that decrees that an arsonist must be punished by
an official bonfire of all his belonging, nor a
rapist be punished by being required to offer his
womenfolk for retaliatory rape (except in some
tribal communities). The instinct, therefore, to
seek death for murder seems to answer to some
residual animality wholly repugnant to civilized
life.

The most forcefully telling indictment of the
practice of capital punishment that I know of is
that of Albert Camus:

"What is capital punishment if not the most
premeditated of murders to which no criminal act,
no matter how calculate, can be compare
(cited in Wolfe Burton H. Pileup on Death Row,
N.Y. Doubleday&Co.,Inc. 1973, p.419).

Clearly, as Michael Radelet points out, " a
civilized society must be based on values and
principles that are higher than those it
condemns." (Facing the Death Penalty:Essays on
Cruel and Unusual Punishment, N.Y., 1989)

It must have been on the basis of such an
understanding of civilized life that the
Hammurabi Code was opposed by Voltaire, Diderot,
Thomas Paine, Adam Smith, and David Hume. Quite
some gathering there, wouldn’t you say? Immanuel
Kant was to put that opposition on the clearly
articulated anti-utilitarian
perception/conviction that "people are valuable
in themselves, regardless of whether they are
useful, or loved, or valued by others." (cited in
MacKinnon, Barbara, Ethics: Theory and
Contemporary Issues, 2^nd ed., N.Y. Wadsworth
Pub., Co., 1998).

MacKinnon makes the further excellent observation
that "using the concern for life that usually
promotes it to make a case for ending life is
inherently contradictory"(p.133). But, when the
blood is screaming, especially among the socially
endowed, who cares for contradictions.
Nonetheless, since capital punishment has indeed
been abolished in many countries, the case for
pushing the argument remains a strong one. It
may perhaps be a useful reminder to the Hindutva
lobby here in India that among those honourable
countries is one named Nepal! Three cheers for
Nepal.

As part of that case-building, it must be
repeatedly underlined that the utilitarian
argument-quite apart from the
philosophical/humanist one-remains flawed and
fallacious.

For example, the death penalty has nowhere
deterred the crime of murder. In 1989, Senator
Edward Kennedy stated before the House Judiciary
Committee:

"Not one of those countries (western democracies)
has capital punishment for peacetime crimes, yet
everyone of them has a murder rate less than half
of the United States." Likewise, FBI statistics
for 1976-1987 state: "In the twelve states where
executions take place the murder rate is exactly
twice the murder rate of the thirteen states
without the death penalty."
(source: The Information Series on Current
Topics: Capital Punishment, Cruel and Unusual?
Wylie:Information Plus, 1998.)

I have on purpose adduced above instances from
the United States of America, since our own
endowed social groups are rather more prone to
acknowledging the truth of anything if it has a
US of A label on it. This is a bit sad, because
our own Fali Nariman, Shanti Bushan, justice
Bhagwati and others have made telling critiques
of the logic of capital punishment.

Even when the injunction about the "rarest of
rare" cases is accepted for argument, does the
case of Afzal Guroo meet that requirement? Here
is a clue from what Shanti Bushan has to say:

"Merely because someone colludes with the actual
perpetrators does not mean he/she gets death
penalty. The role of conspirators needs to be
assessed. Hundreds were killed in Gujarat after
Godhra. Does it mean there would be death
penalty for all of them?"

Let us recall, for example, that in the Gandhi
assassination case, Nathuram Godse who pulled the
trigger received the death sentence, but his
brother, who was intimately part of the
conspiracy, did not. Afzal Guroo was neither a
chief plotter nor a participant in the actual
attack on December 13; if provenly anything, he
was a sympathetic, small-time facilitator,
although guilty nonetheless. Remembering that
he seemed not to have received the benefit of
legal representation through the trial, one must
ask whether the death sentence fits the merits of
his case. This speculation independent of the
fact that we regard capital punishment for any
offence as deeply offensive to the very raison d
etre of human existence.

Speaking of which, let us not forget the other
troublesome question, that of human error.
Michael Radelet counted, since the turn of the
century, 343 cases "in which a defendant facing a
possible death penalty was wrongfully convicted.
Of these, 137 were sentenced to death, and 25
were actually executed"(Ibid.,). Closer at home,
Nariman and Bhagwati have persuasively pointed
out that the executed Kehar Singh (Indira Gandhi
murder case) may actually have been innocent.

As the government of India mulls over the mercy
petition submitted by Afzal Guroo’s family, they
would do well to keep all of those things in
mind. Most of all, they should remember that in
the very same case, as stated earlier,
S.A.R.Geelani was pronounced guilty and sentenced
to death, only to be subsequently exonerated from
all culpability. To return to America: it should
be recalled that just recently one to the 9/11
attackers, Zachariah Mossaveih, was not given the
death penalty just on the basis that his
childhood was too abused to render him wholly
responsible. No insanity, mind you, just
childhood abuse. This is when he was otherwise
found guilty in the first degree.

As to “collective conscience,” it can work at
dangerous cross purposes among different sections
of the population, and in different regions of
India. If politics are to be a consideration,
the largest and the most fruitful view must
necessarily be taken of the matter. Such a
course would not be out of sync with what
far-sighted rulers have done repeatedly in
history.

 Intelligent design?

Hindustan Times, October 13, 2006

by Ajit Bhattacharjea

Ajit Bhattacharjea is a former Director,
Press Institute of India.

October 12, 2006

Four Octobers ago, a well-known Kashmiri
journalist, Iftikhar Gilani, was in Tihar jail
facing indefinite incarceration on concocted
charges. He had been jailed after a cursory trial
on June 9, 2002 and was abruptly released after
seven months when the charges were withdrawn.
Gilani had a rough time, but was relatively
fortunate. As chief of bureau of the Kashmir
Times in Delhi, he had many journalist friends
and others who campaigned for his release. The
charge against him under the Official Secrets Act
was found to be fabricated.

The primary evidence produced by the police was a
document on the hard disk of Gilani’s computer
with details of the number of Indian security
forces in Kashmir. But this was not secret
information. It was, as he pleaded, a paper by
one Nazir Kamal already published in the journal
of the Pakistan Institute of Strategic Studies,
Islamabad Papers, and taken from their website.
Offers to demonstrate this by securing other
copies of the paper or contacting the website
were ignored. Gilani’s copy was doctored to make
it appear secret. These and other details of the
frantic efforts of the prosecution, and the
officials behind it, to frame Gilani are detailed
in his book, My Days in Prison. Fortunately, the
patent failure of justice became impossible to
justify and he was released on January 13, 2003.
But for the influential friends who pursued his
case, he may still have been in jail. The maximum
sentence prescribed for an offence under the
Official Secrets Act is 14 years.

I recall Gilani’s case because My Days in Prison
indicates why the sentencing of Mohammad Afzal
Guru to death by hanging has evoked passion and
disbelief in the Valley. It documents the devious
lengths to which investigative agencies are
willing to go to be seen as saviours of the
nation. Kashmir is familiar with stories of
people being framed, of militants claimed killed
by the security forces turning out to be innocent
civilians, of young men disappearing without
trace. Suspicions are reinforced when it is found
that in Delhi, intelligence agencies are not
above fabricating or distorting evidence to get
credit for catching persons painted as threats to
national security. In Afzal and Gilani’s cases,
evidence of fabrication surfaced during hearings.

With stories concerning national security certain
to get headlines, intelligence agencies try to
exploit mediapersons to substantiate their
charges and embarrass the defence. Hints are
dropped about activities that further damage the
suspect’s reputation or weaken his case. In the
Gilani case, a newspaper reported that he had
confessed his guilt, which he had not. In the
Guru case, his counsel was quoted as suggesting
that he preferred death by lethal injection to
hanging, an implicit admission of guilt. He
denied admitting any such preference.
Intelligence personnel are keen on publicity.
Arrangements to be filmed or photographed with a
’catch’ are part of the routine; presumably with
an eye on a reward.

Gilani’s account of his ordeal is detailed and
credible. It contains names and designations. A
copy of Afzal’s letter to his lawyer from jail
has been circulated. It makes more painful
reading, with descriptions of torture and
extortion, but does not have the imprimatur of a
published document. Even so, Afzal’s account of
inadequate facilities for defence, the
circumstantial nature of the evidence and other
trial inadequacies seem sufficient to provide the
scintilla of doubt about his guilt required to
merit presidential clemency. It will be too late
to make amends if evidence to the contrary is
found after he has been hanged.

Justice must be seen to have been done especially
in a case involving an attack on Parliament
House. The Supreme Court did not find any
evidence in the charge that Guru was a member of
a terrorist gang or organisation. He was not
directly involved in the attack or the planning,
which was masterminded by three persons in
Pakistan. Even if guilty as a conspirator, the
view taken by the court raises more questions
than it answers. The following is an extract from
the judgment: "The incident which resulted in
heavy casualties, has shaken the entire nation
and the collective conscience of the society will
be satisfied if the capital punishment is awarded
to the offender. The challenge to the unity,
integrity and sovereignty of India by these acts
of terrorists and conspirators can only be
compensated by giving the maximum punishment to
the person who is proved to be a conspirator in
this treacherous act. The appellant, who is a
surrendered militant and who was bent upon
repeating the acts of treason against the nation,
is a menace to the society [and] should become
extinct. Accordingly, we uphold the death
sentence."