Content

[1] India:
- Letter to the India’s president - Sign on Petition
- Letter to Indian National Human Rights Commission

[2] The death sentence for Mohammed Afzal Guru
and the future of barbarism (Aseem Srivastava)

[3] Taking a Blunderbuss to a Mouse: Some
Observations on the Mohd. Afzal Case (Mukul Dube)

[4] India: When the Noose Is Doubly Good News (Sri Raman)

[5] India: Life, not death: Why Afzal mustn’t hang (Meenakshi Ganguly)

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[1]

1) Letter to the president.

its at:

http://www.petitiononline.com/ekta1/petition.html

2) Letter to Indian National Human Rights Commission. Reproduced below.

We are asking a select group of invited Indian
and international personalities to sign the
letters. Both the letters will be handed in
personally in New Delhi. Would you please
consider signing both the letters? [send your
signatures to: admin justiceforafzalguru.org

Letter to NHRC:

November 12, 2006

Hon’ble Dr. Justice A.S. Anand

Chairperson, National Human Rights Commission,

Faridkot House,

Copernicus Marg,

New Delhi 110001

Dear Sir,

We are writing to request you to take action
according to your constitutional powers in the
case of Mohammad Afzal Guru of Sopore, Kashmir,
to prevent a serious miscarriage of justice. Mr. 
Guru was sentenced to death in the Parliament
attack case by the trial court on 18 December
2002 and this sentence was upheld through appeals
in the Delhi High Court and the Supreme Court.
Mr. Guru has appealed to the President of India
for clemency and is currently awaiting a decision.
It is clear that the trial process was flawed and
highly unfair, for the following reasons.

1. Mr. Guru was not provided a lawyer at the crucial trial stage.

2. The Special Cell of the Delhi Police, which
was placed in charge of investigating the case,
used the media to brand Mr. Guru as guilty even
before the trial. He was produced before the
media and forced to “confess”. Subsequent
statements by a media person present at the event
that Mr. Guru appeared to be in a highly
disturbed frame of mind were ignored by the
courts. The media trial, which included a film
broadcast on Zee TV, previewed and approved by
the then Prime Minister, was clearly a factor in
prejudicing the outcome of the trial.

3. The confession made by Mr. Guru to the police
while in custody was under duress. Mr. Guru was
tortured and his family were threatened. When he
was produced before a magistrate, Mr. Guru
retracted his confession, yet the evidence
therein was used as the basis for his conviction
and sentencing.

4. The Delhi High Court acknowledged that the
investigating agency fabricated evidence against
the accused, yet upheld the verdict.

5. The Supreme Court rejected Mr. Guru’s
confession on account of the procedural
irregularities in obtaining it, yet upheld the
death sentence based on nothing more than
inadequate circumstantial evidence.

Mr. Guru’s trial does not meet international
standards for a fair trial: he was denied due
process, legal counsel and the presumption of
innocent until proven guilty. These violate
articles 7, 10, 14, and 17 of the International
Covenant on Civil and Political Rights. India
signed and ratified the International Convention
on Civil and Political Rights in 1979 and is
obliged to protect the rights guaranteed therein.

It is also pertinent that under international
human rights standards people charged with crimes
punishable by death are entitled to the
observance of strictest fair trial guarantees in
view of the irreversible and extreme nature of
the penalty. Carrying out the death penalty upon
conclusion of a trial in which the provisions of
International Covenant on Civil and Political
Rights have not been respected, which can no
longer be remedied by appeal, would be a serious
reflection on the Indian judicial system.

All of these circumstances point to the need for
a new trial for Mr. Guru, in order that justice
may be done. We urge you to exercise your mandate
to protect human rights and the rule of law, to
obtain a new trial for Mr. Guru. Further, in
light of the disclosures of fabricated evidence
by the investigation agency which have been
clearly acknowledged by the higher courts, and of
the manner in which Mr. Guru was tortured and
manipulated by the Special Task Force, we also
urge you to ask for a judicial enquiry to find
out the real truths behind the attack on the
Indian Parliament.

Sincerely,

The undersigned

---

[2]

www.sacw.net | 16 November 2006

http://www.sacw.net/hrights/aseem16Nov06.html

We must leave alone what is not in our power to change

THE DEATH SENTENCE FOR MOHAMMED AFZAL GURU AND THE FUTURE OF BARBARISM

by Aseem Srivastava

“The vision of justice is God’s delight alone.”

Artur Rimbaud

"It is not the eternal in man that kills. It is
not the eternal in man that dies."

The Upanishads

Our moral exhaustion today

A soldier, in fidelity to the orders of his
commander, the peer pressure of his fighting
mates, and the despairing heat of the moment,
shoots down innocents. The realization hits soon
enough, and yet too late. Because, on impulse, he
is led to carry out further atrocities, as if
they would absolve him of his first crime. This
happens all too often in wars, though such facts
– lined as they are with psychological subtleties
– are not easy to record.

When you are “programmed to kill” and the
efficient weaponry to implement orders is at
hand, killing becomes a self-perpetuating affair.
Once the thick first line is crossed the ones
that follow are too thin and invisible to meet
the eye of conscience. Only the other side can
perceive the horror and feel the pain and trauma.
And, often, seek revenge.

What does one say? What does one do? So often
nowadays it appears that we quickly reach the
point where there is little left to say, almost
nothing that can be done, plenty to undo and,
most ominous of all, the lurking risk of further
wrongs piling up, of hell getting ever more
hellish and of the world moving further down the
precipitous slope of barbarism from the tragic to
the farcical. There may have been times and
places in the human past when violence might
actually have meant something. Howsoever things
may have stood in the past, what is on offer
today is mostly a nihilistic spectacle of the
absurd, a cowardly martial routine which only
awakens our conscience when we ourselves or one
of our own are the aggrieved party.

Every child knows that two wrongs don’t make a
right. But every adult seems to forget it.
Revenge is not the same as justice, no matter
that some jurists and moral philosophers have
lavished plenty of ink on tomes about retributive
justice. However, only the other day, the Dalai
Lama told Japanese reporters "the death penalty
is said to fulfil a preventive function, yet it
is clearly a form of revenge.“”However horrible
an act a person may have committed, everyone has
the potential to improve and correct himself", he
said.

Revenge has no future - because it thinks of
none. It is driven by the past and appears to be
innocent of the savage demands that a wounded
conscience may impose later on. In fact, in the
shadow of revenge, justifications or even further
wrongs must almost inevitably follow, precisely
to deceive oneself, above all, about the absence
of the commands of conscience, and of the prior
wrongness of one’s deeds.

Can we escape moral illusions?

The moral fantasies that so many of us live - and
what is more important for us than to persist in
maintaining our moral appearances! - become
necessary illusions for our day-to-day survival,
indispensable parts of the psychological kit of
our hardened capacity to live with ourselves.
Short of an unlikely collective expiation on all
sides, there is no reprieve from this
unacknowledged nightmare. Hypocrisy is inevitable
and becomes, as Oscar Wilde was led to remark,
“the debt that vice pays to virtue.”
Perhaps, as some philosophers have pointed out,
therein lies hope: that we must be, in some
ultimate remote corner of our lost hearts, after
all, good by nature. Otherwise it is a bit
difficult to understand the trouble that we take
to not merely appear good before others, but to
want to feel good about ourselves even in the
privacy of our souls, after having done some
wrong or having been complicit in one. Our
misdeeds trouble us in some mysterious spot of
the soul, hence the need to justify and, if at
all possible, overlook or forget. Call it
preferred “blindsight” if you will.

It is no easy task to be a good human being.
Strange that we seem to so readily take it as an
article of faith that we are, by definition, and
by the mere virtue of our existence, good. The
corollary that others are, pari passu, evil,
almost follows as a moral reflex that preserves
our deluded self-image, justifying our own evil
through the logic of moral sloth and practical
convenience. Thus, unsurprisingly, history knows
more blood to have been shed in the name of the
good than for evil. Moral self-righteousness is a
lot harder for us to recognize in ourselves and
uproot than is plain self-interest.

The hard thing is to know oneself to be morally
imperfect and to abide the sight of one’s
imperfection without succumbing to the tempting
impulse to “run away” from one’s past by actually
repeating the misdeeds, thereby perpetuating the
“rightness” of one’s actions in one’s moral
self-image. Human beings appear to find it very
difficult to neither justify nor condemn their
misdeeds. Memory and habit are the devil’s
accomplices here. Moral reasoning - and the faith
and patience that command it - are so easily
enfeebled by that devastating logic of the heart
which seeks to wash one’s wrongdoings in a
cleansing ritual of lies, illusions and
self-deceit, even shedding further blood if
necessary and contributing all along to the
social edifice of mendacity.

A forgotten story, worth recalling

Setting aside the terrible memories of the past,
and the nasty realities of the present, there is
an urgent need today to rediscover the liberating
power of forgiveness and the merits of mercy. One
shining - and rarely remembered - example of this
is provided by South Africa under Nelson
Mandela’s leadership in the mid-1990s. As long as
the wrongdoers from the Apartheid era were
willing to publicly and candidly confess their
crimes, they were offered amnesty by the Truth
and Reconciliation Commission. This was not a
perfect solution to a problem of breathtaking
moral complexity. At the hands of the White
Apartheid regime, Blacks in South Africa had
suffered over decades and centuries every
inhumanity and humiliation imaginable - from
judicial torture, murder and rape to bloody
massacres. Many, such as Steve Biko’s family,
felt betrayed by the general amnesty offered to
so many of the killers and rapists. Apologies
from many privileged white families, such as De
Klerk’s were qualified. Others, such as
P.W.Botha, did not even go that far. All this had
predictable ripples on the other side.

However, Mandela’s rejection of retributive
justice was emphatic and his setting aside of
bitterness was an unparalleled act of mature
statesmanship, seen rarely in history. It saved
humanity from what would have been a certain and
unforgettable bloodbath. Given how hard it is for
justice to be done once vengeful atrocities of
this scale are unleashed, and how tempting it
must have been to allow them to take place
(witness Mugabe) Mandela’s was an act of
astonishing moral foresight.

A permanent paradox

If you kill one man or woman you are a murderer.
If you do so again, you are a murderer twice
over. You kill 10 and you are a serial killer.
For all these crimes the law lays down due
punishments. But if you are responsible for the
killing of a thousand or a million people the
crime is rarely acknowledged, let alone punished.
(Notice the reluctance in Turkey to allow
discussion of the Armenian genocide or in the US
of the genocide of native populations.) It
appears that somewhere between the number of 10
and a thousand, murder mutates into a moral
imperative. States are often founded on the
bloodshed. The rule of law is thenceforth
established and all that lies behind and beneath
is forgotten - without any public confessions or
reconciliation with the wounded. Little wonder
that history repeats itself with disturbing
regularity.

Mandela’s searing insight was to recognize the
futility of revenge for historical injustices on
a national scale. Humanity is able to punish only
the small and petty crimes. The truly big ones
elude our moral eye and, given our frequent
penchant for the pragmatic - of sharing in the
spoils of war, conquest and great injustice -
ever so often become the basis of states and
societies that are seen to be, ironically,
legitimate.

Mandela’s actions demonstrated humanity’s utter
helplessness in the matter of delivering precise
justice in matters that truly matter. Where even
the best of men have humbly accepted the limits
to the justice they can offer, lesser men ought
not to try. There is a lesson here for all those
states and governments and terror outfits so keen
to teach the other side a lesson.

“You never teach life anything”, Gabriel Garcia
Marquez has written. Punishment only hardens
criminals and has never stopped new ones from
undertaking similar ventures in the future. As
has been noted by some philosophers, that evil
exists in the world is undeniable. But that the
existence of evil is itself an evil can be
disputed. Further, that it is possible to
eliminate evil from the world - without oneself
staring into the same darkness - is a lethal
illusion that has led us to our present global
predicament. If we continue to take moral shelter
in the alleged crimes of others, almost
instinctively overlooking our own, we will only
continue to delude ourselves about our own
putative goodness and in the end there will be no
shelter from facts.

There is still time

All this is far from irrelevant to Afzal Guru’s
death sentence by the Indian judiciary. As has
been pointed out by some commentators, there are
many directions in which the circumstantial
evidence points that have not been investigated
at all, not to mention the repeated provocations
and assault on human rights for which Indian
military and paramilitary forces in Kashmir are
responsible. Under such conditions, to carry out
the sentence would be an act of ignorant haste
with predictable repercussions in Kashmir. Even
if Afzal’s guilt is established, the Indian state
must find the maturity to learn from countries
like South Africa - which abolished capital
punishment 11 years ago - rather than the US,
where so many states, including Texas, send
criminals to the gallows every year.

The use of force is in fashion today. We have
become too morally lazy to think before we act -
especially when we wield power. States and
governments so easily forget the imitative
repercussions that their organized, visible and
“legitimate” violence has on those restless,
disgruntled or aggrieved groups who might be keen
to resort to violence to resolve human conflicts.
When killing is used - often in deep ignorance of
facts, thus even more unjustly - by the state, it
legitimizes the use of violence in the
administration of justice. Terror groups then do
not have to restrain themselves and exercise
their moral imagination to find peaceful
approaches to their grievances. They take the law
into their own hands. They are only too happy to
put their fingers even closer to the trigger.
Recent observations from the experience of the US
in Iraq, of Israel in Palestine and Lebanon, of
the Indian state itself in Kashmir come readily
to mind.

The methods of Gandhi, Martin Luther King, and
Nelson Mandela evoke interest even today
precisely because they provoked ethical thought
by the dignity and efficacy of the actions that
they carried out and inspired. If the movements
they represented used excessive violence they
would not only have been readily suppressed by
their much more powerful enemies, but also been
forgotten by now. The secret of their success was
their principled eschewal of the methods of the
powerful.

Mandela opened the door to a moral and spiritual
universe whose existence was not even suspected.
It shows us that there is indeed a vision which
transcends human conflicts and which helps us
accept with fortitude and grace the inerasable
facts of the past. It sets human life as it is
outwardly lived on this planet in its proper -
puny -perspective. It humbles us into recognition
of our own moral limits. What we cannot cure we
must endure. We cannot pretend to know all there
might be to know about the matter of good and
evil. Our knowledge is limited, our ignorance
infinite. Hence public remembrance and
forgiveness may be our best bet for living
peaceful, even satisfying, lives.

Mandela is reported to have said "for all people
who have found themselves in the position of
being in jail and trying to transform society,
forgiveness is natural because you have no time
to be retaliative.“He also said”one of the most
difficult things is not to change society - but
to change yourself." Mercy alone liberates us
from the shackles of revenge and false justice.

Indian leaders ought to regard this truth in
their deliberations over the fate of Mohammed
Afzal Guru.

Aseem Shrivastava is an independent writer. He
can be reached at aseem62 yahoo.com

---

[3]

www.sacw.net | 16 November 2006

http://www.sacw.net/hrights/mukulD16Nov06.html

November 15, 2006

TAKING A BLUNDERBUSS TO A MOUSE:
SOME OBSERVATIONS ON THE MOHD. AFZAL CASE

by Mukul Dube

[This article in Mainstream and on Counterpunch on 11 November 2006.]

According to the formula, the death penalty is
awarded only in the “rarest of rare” cases. There
must be something about the crime or the criminal
which causes the judge to decide that the penalty
of imprisonment for life will be insufficient.
The crime must be grave or heinous enough to
warrant the extreme penalty, or else the criminal
must be considered entirely without hope of
redemption.

Criminal. It goes without saying that the person
sentenced to death must have been shown
conclusively to have committed whatever was the
crime. It goes without saying that that person’s
guilt must have been established, to quote
another formula, “beyond the shadow of a doubt.”

Was Mohd. Afzal’s guilt in the "Parliament attack
case" established in this conclusive way? Here I
shall look only at the fact that the judgment
states that his guilt was established on the
basis of circumstantial evidence.

By its very nature, circumstantial evidence is a
weak form of evidence. It involves the putting
together of two and two and does not depend on
the sensory perceptions of any person.
Circumstantial evidence says not “he did it” but
"in view of this, this, and this, I think he must
have done it." It can be called deduction, it can
be called conjecture, it can be called jumping to
a conclusion. Certainly it is not based on
something seen, heard, smelt, touched or tasted.

In a lay person, the juxtaposition of a supposed
crime deemed to be of the “rarest of rare” kind
and an inherently weak form of evidence causes
perplexity and unease. It makes one think of stud
bulls running around a racing track meant for
greyhounds, or of a 5 lb. hammer used in driving
home a screw with a Phillips head.

There are those among Christians who hold that
the principle of lex talion (“an eye for an eye”)
was divinely ordained. However, this principle,
which was long ago abandoned by most civilised
societies, demands the strictest proof, as we see.
"On the evidence of two witnesses or of three
witnesses he that is to die shall be put to
death; a person shall not be put to death on the
evidence of one witness..." (Deuteronomy 17:6,7).
And here is Jehovah in the Old Testament: "...but
no person shall be put to death on the testimony
of one witness." (Numbers 35:30)

Judaism recognises the death penalty, but it
places strict conditions. "For a Jew to be
convicted by a Jewish court, two eyewitnesses
must have seen the perpetrator about to commit
the crime and warned him of the potential
penalty. The murderer must verbally answer that
he chooses to proceed anyway. (For a non-Jew,
only one witness is required and no verbal
warning.)" (_Jewish Journal of Greater Los
Angeles_, 10 March 2000)

How many eye-witnesses testified against Mohd.
Afzal in the “Parliament attack case”? One half,
perhaps? An eighth, or a sixtieth? Less than one
witness, that is certain.

The judgment of the Supreme Court was an attempt
to produce a poetically elegant piece of prose,
never mind the effect of much unwanted use of the
definite article. "Afzal is characterised as a
’menace to the society’, whose ’life should
become extinct’ to satisfy ’the collective
conscience of the society’" (Nirmalangshu
Mukherji, quoting from the judgment in "Should
Mohammad Afzal Die?", Economic and Political
Weekly, 7-13 October 2006).
What is conscience? My understanding of my own
conscience has always been that it is what
prevents me from shop-lifting, from kicking
puppies, from bursting fire-crackers at midnight.
It is also the force which makes me try to assist
anyone who seems to be in distress.

The “collective conscience of the society” seems
an altogether different phenomenon. It does not
prevent “the society” from doing wrong: instead,
it impels it to do that which so many consider
wrong but which it transforms into right-if we
are to go by the specious reasoning of the
judgment-by reference to a man who is described
as a “menace to the society,” etc.

Other than the Supreme Court, which waved it
about to justify its award of the death penalty
to Mohd. Afzal, who knew of this "collective
conscience of the society“? Did”the society"
itself know of it? Were the people of, say,
Kashmir and the North-East among the possessors
of this unusual “collective conscience”? Just who
are those who make up “the society”? I am
compelled to conclude that they are those who
swallow the police’ version of facts dished out
by an obliging and singularly uncritical media. I
shall not repeat what so many have said about the
impossibility of Mohd. Afzal’s getting a fair
trial, given the sustained glare of one-sided
publicity his case had received.

I have argued elsewhere ("S.A.R. Geelani and the
Dance of Holy Justice," Mainstream, 3 September
2005) that, in setting free Geelani with a face
blackened for life, the Supreme Court gave the
media what they wanted. In the case of Mohd.
Afzal, the Supreme Court enabled the media to
sate the public thirst for blood which they had
created while co-operating with another arm of
the justice machinery, the police. With the wheel
of unreason moving in the only way in which
wheels can move, we search in vain for the
distinction between administration and judiciary.

As a side light, there was a comedy of errors in
which the errors were not those which the chief
actor described as such. Colin Gonsalves,
advocate for Mohd. Afzal at a late stage, has
insisted again and again that his 250-page
submissions-their length is stated each time-did
not contain the plea that his client, whose guilt
would implicitly have been accepted, be executed
by lethal injection rather than by hanging.
Indeed Mr. Gonsalves’ submissions did not contain
that plea; but he forgets that he filed a
supplementary affidavit-which bore the signature
of Mohd. Afzal who, when he signed it, did not
know what it contained - - which described lethal
injection as a method of execution much to be
preferred to hanging because it was humane, not
painful, etc. Why should a man sign such an
affidavit who knew that above his head hung the
death penalty? In the context of larger
philosophical considerations, perhaps? Mr. 
Gonsalves, otherwise hardly tongue-tied, does not
say.

There is something else, however, which eminently
credible people say who were present in court at
the time. It is that Mr. Gonsalves, in his oral
submissions, clearly asked that his client Mohd.
Afzal be put to death not by hanging but by
lethal injection. Unlike written submissions and
supplementary affidavits, oral submissions do not
form part of the record unless the court refers
to them in its judgment. The court did not refer
to them in this instance, possibly because of
their absurd nature: but, I repeat, those who say
that the defence lawyer’s spoken words included
this admission of his client’s guilt-and
apparently the foreknowledge that the sentence to
be handed down would be that of death-are
credible people.

The efforts to have Mohd. Afzal’s death sentence
commuted have attracted the attention of the
media, but in a strange and perhaps predictable
way: they have transformed the matter into a
debate for and against capital punishment.
Whether or not Mohd. Afzal received justice is
not of any interest to them. The oak is all, the
acorn forgotten. Other than the talk about Colin
Gonsalves and lethal injections-of which Mr. 
Gonsalves seems to have become aware rather more
than a year after I heard it-there is the
question of whether or not the trial judge said
to Mohd. Afzal, in his chamber and in the
presence of Seema Gulati, then amicus curiae,
that he should not worry because he was "our man.
’ This must remain forever a rumour, since no one
can be expected to say for the record that it
happened. If it did happen, though, once again no
difference remains between judiciary and
administration.

Mohd. Afzal, we might recall, is a former
militant who, since his surrender, was in close
and constant contact with the "forces of law and
order." Lamb to the slaughter? One man at least
will be hanged: forget that the genesis of the
plot to blow up Parliament has not been and
cannot be explicated. Do not ask if there even
was a plot. On the basis of circumstantial
evidence, with no independent witness or
corroboration, the Supreme Court has passed
judgment in order to satisfy its constructed
“collective conscience of the society.” A fine
conscience, one which bays for blood.

The strongest argument against the death penalty
is the imperfections of systems of justice. For
example, the Stanford Law Review uncovered 350
20^th-century cases in the U.S. in which "clearly
innocent" people had been sentenced to death.
That 75 of these cases dated since 1970 shows an
improvement over time, it could be argued.

Besides, execution has by no means been shown to
be a deterrent. Now and then, murderers-that is,
those convicted of murder-are hanged and the
people are made to know of this. Yet murders
continue to be committed. I do not know if anyone
has tabulated these figures for a year or for a
decade or two: on the one side, the numbers of
people hanged for having committed murder; and on
the other, the numbers of murders committed in
the weeks and months following the hangings. When
many guilty people get away scot free, the
miscarriage of justice involved in hanging an
innocent becomes all the more appalling.

I shall probably never decide if I am absolutely
for or absolutely against the death penalty. On
the one hand are the Modis, for whom a sentence
of being torn asunder by horses would be horribly
mild: and on the other are the Afzals, who are
pushed towards the gallows although against them
proof positive exists by no stretch of the
imagination.

In our land of justice, the Afzals are tried,
never mind that for most of their trials they
have no lawyers to speak for them: while the
Modis do not even have charges framed against
them. Our socially conscious, responsible, etc.,
media find it convenient and safe to debate the
death penalty in the abstract.

A friend suggested another way of looking at this
affair. She said that the “attack on Parliament”
had been offered as the reason for the immediate
mobilisation of the armed forces on a scale
unprecedented in peace time; and that many hold
that the two countries were brought to the brink
of a nuclear war. Now Pakistan never accepted
that it had done anything wrong or that it had
looked the other way while its men did wrong and
its territory was misused. For its part, India
never presented evidence so convincing as to put
Pakistan squarely in the dock. Pakistan has only
expressed a general regret, which is very
different from saying “sorry.” That is, war-like
India ("You tried to blow up our Parliament: we
will blow up your country") could not extract
even an apology.

It was to justify that inordinately expensive and
dangerous “reaction”, my friend said, that Mohd.
Afzal was sentenced to be put to death. Blood
alone could serve as the ink on the rubber stamp
which would close the file in a satisfactory and
satisfying way; and Mohd. Afzal was State
property, a readily available resource, an
expendable pawn well placed.

---

[4]

truthout.org

9 November 2006

WHEN THE NOOSE IS DOUBLY GOOD NEWS

by J. Sri Raman

Within a fortnight, India is witnessing
furious debates over two death sentences. And no
prizes for guessing the political identity of
those who see the noose as positive news in both
the cases.

The far right is baying like a lynch mob for
the hanging of Afzal Guru, whom the Supreme Court
of India sentenced to death for a role of
“conspiracy” in the still largely mysterious
attack on India’s Parliament in December 2001. A
broader coalition of forces has backed the death
sentence for deposed Iraqi leader Saddam Hussein.

Afzal has appealed for presidential
“clemency,” under a statutory provision that can
save him still. The noose alone can save the
nation, counters the Bharatiya Janata Party
(BJP), the political front of the fascist phalanx
known as the “parivar” or the “family.” The party
wants Afzal killed before any clemency can be
considered.

Supporters of the sentence on Saddam have not
spoken up against an appeal against the verdict
being allowed (even if few see this as anything
but a formality). But they are sternly
disapproving of any effort by New Delhi even to
appear equivocal or sound embarrassed about the
verdict of the Washington-installed court.

The case of the anti-Afzal campaigners is
clear. The attack on Parliament may be an untold
story in many respects, though the then BJP-led
government trotted it out as an excuse for taking
India to the brink of a nuclear war with its
neighbor. No member of either of the legislative
chambers may have suffered bodily harm, though
some poor security personnel were killed. But,
according to the official version, Islamic
terrorists from Kashmir staged the attack with
the help of Pakistan. So, Afzal cannot escape the
death penalty, though justice continues to evade
thousands of victims of the Gujarat pogrom of
early 2002, which the party presided over.

The case of the anti-Saddam campaigners is
equally clear, though it may appear slightly more
complex. They may concede that some questions of
international law can possibly be raised in
relation to the case and the verdict. Their main
point, however, is that such questions should
make no difference to New Delhi - especially when
that all-important US-India nuclear “deal” is
involved.

It took very little to provoke them on this
issue. Just how little can be judged from the coy
and convoluted statement of India’s external
affairs minister, Pranab Mukherjee. "Such
life-and-death decisions,“he said,”require
credible, due process of law, which does not
appear to be victor’s justice and is acceptable
to the people of Iraq as well as the
international community.“He added:”We hope that
this verdict will not add to the suffering of the
people of Iraq."

For good measure, the ruling Congress Party,
which Mukherjee represents, rejected the Left
demand for New Delhi’s "active intervention to
get the sentence rescinded" and condemnation of
the “travesty of justice” by a court that
represented “occupation forces.” The party’s plea
was that the appeal provision made such steps
utterly unwarranted.

All this was not good enough for those firmly
of the opinion that it just was bad form for
Prime Minister Manmohan Singh’s government to
voice such reservations about the wisdom of the
Bush regime and its accredited representatives in
Baghdad.

From one particular editorial pulpit, known
for pious advocacy of the “strategic alliance”
and paramount importance of the nuclear “deal,”
came the exhortation: "It is possible to be
circumspect about at least some parts of the
legal architecture that surrounds the Saddam
Hussein verdict and yet keep the necessarily
hard-headed calculations of national interest in
mind. Which is to say the UPA government (United
Progressive Alliance) could have probably
achieved a better balance between its
reservations about the verdict and India’s
strategic goals in Iraq and the surrounding
areas."

Security expert C. Raja Mohan, a staunch
defender of Singh on the “deal,” sounded
displeased. "Irrespective of its intent, the
Indian reaction, issued in the name of External
Affairs Minister Pranab Mukherjee is bound to
irritate Washington, Baghdad and Tehran in one
stroke." Striking is the show of concern for the
sensitivities of Iran, which Mohan and
like-minded have been denouncing as a country
undeserving of India’s support on the nuclear
issue.

The BJP’s top leadership has avoided sounding
as bloodthirsty on this issue as on Afzal. The
party spokesman, however, conveyed implicit
disapproval of Mukherjee’s statement by
describing the sentence on Saddam as "an internal
affair of Iraq," as though it had nothing to do
at all with that country’s invasion and
occupation by foreign forces.

At lower levels, however, the party was more
open in its pro-noose stand on both the issues.
Just one example is the reported statement by a
leader of the party’s student wing, the Akhil
Bharatiya Vidyarthi Parishad (ABVP), in New
Delhi’s politically alive Jawaharlal Nehru
University (JNU). “We are happy,” reads the
statement, "that Saddam will be hanged to death
and we demand that Mohammed Afzal Guru ... should
also be hanged soon."

To the rest of the world, the two issues may
not readily appear to be related. To the common
people of India, however, the connection is
obvious.

---

[5]

Asian Age

7 November 2006

LIFE, NOT DEATH: WHY AFZAL MUSTN’T HANG

by Meenakshi Ganguly

Mohammad Afzal Guru is supposed to hang. His
conviction for his role in the conspiracy to
attack Indian Parliament in 2001 was upheld by
the Supreme Court in August. He was deemed
guilty enough to receive the “rarest of rare”
sentences: the death penalty. The hanging was set
for October 20, but was delayed as a mercy
petition awaits the decision of the government
and, eventually, President A.P.J. Abdul Kalam.

Much has been said and written about this case.
Most Kashmiri leaders say the hanging will
adversely affect the ongoing peace process. One
of India’s leading magazines published an essay
by Booker Prize winner Arundhati Roy arguing
against the sentence. Its rival magazine ran an
opinion poll of urban Indians that found 78 per
cent opposed “liberal rhetoric” such as hers, and
believed Afzal should be hanged. In fact, some
right-wing Hindu groups even held a mock hanging
to support this claim.

Some say that Mohammad Afzal was able to appeal
his conviction and therefore has no reason to
complain. The legal system has worked. Others say
that the guilty verdict was based on
unconvincing circumstantial evidence. Activists
also point out that he did not receive proper
legal counsel.

Let’s be clear at the outset. Human Rights Watch
unequivocally opposes the death penalty. Guilty
or not, we believe that neither Mohammad Afzal
Guru, nor Priyadarshini Mattoo’s killer, Santosh
Kumar Singh, nor Saddam Hussein, nor anyone
else, should be executed. Taking the life of a
human being is inherently cruel, and as a form
of punishment is unique in its irreversibility.
The intrinsic fallibility of all criminal
justice systems assures that even when there is
a fair judicial process, innocent persons will
still be executed. On a practical level, there
is no evidence that it is an effective deterrent.

The sentencing of Mohammad Afzal also represents
a different and perhaps deeper problem in India.
As a former militant, at the very least it seems
clear that Mohammad Afzal once sympathised with
Kashmir militancy. Militants blow up markets and
kill Indian soldiers and civilians. In the common
Indian narrative, Indian soldiers are the good
guys, and militants are the “bad guys.” Bad guys
deserve to be punished.

Yet the backbone of any proper legal system is
that individuals who commit crimes should be
prosecuted and punished for their specific
actions, not for who they supposedly represent.
For many in India’s powerful middle class with
little real understanding of the complexities of
Kashmir, Kashmiris have become a distant
“other,” interchangeable people who need not be
considered as individuals. Thus, whether
Mohammad Afzal was a key figure in the attack
deserving a long criminal sentence or just a
marginal figure whose actions merit a much
lesser punishment is of little concern. This
needs to change if there is any chance of a
resolution of the conflict or, in the meantime,
making the justice system work in a fair and
impartial manner.

Recently, Human Rights Watch became the first
international organisation to release a human
rights report ("Everyone Lives in Fear: Patterns
of Impunity in Jammu and Kashmir") in Srinagar.
We noted that in Jammu and Kashmir, police and
soldiers have been given extraordinary legal
powers to tackle a violent armed conflict. Any
such law is based on trust that those thus
empowered will not abuse it. Unfortunately, our
research found that this trust has been violated,
and that abuse is common practice.

In Kashmir a person can be lawfully arrested for
committing or planning offences against national
security, such as harbouring militants, hiding
weapons or planning an attack. But the
extraordinary powers that the state provides to
its security forces also encourage abuses. To
take but one example, there are so many weapons
in a conflict area like J&K that to plant
evidence such as a grenade or a gun is all too
easy - and presents a credible story that is hard
to rebut.

Many Kashmiris have to supply food or shelter to
militants at the point of a gun. Yet, the Public
Safety Act can be used, or abused, to put such
people in detention for years, held without
trial, because the state never has to prove
their guilt. Often the basis of detention is
highly unreliable information provided during
the coerced confession of another, usually
through torture or the threat of torture.

Sadly, Kashmiri lawyers are grateful when a
person turns up in detention. Not because they
can make some extra money from another client,
but because it means the government has publicly
admitted that it has the person in custody, and
the detainee’s life, therefore, becomes more
secure. Those who do not turn up in an official
place of detention frequently “disappear” or turn
up dead, killed in a faked armed encounter.

Both the government of India and much of the
population are aware that this happens. There is
however, a widespread wink and nod. Some may
believe that “bad guys” deserve to die and
inquire no further. Government officials explain
privately that there is little option to use such
measures because the legal and judicial process
is flawed. It takes too long and it is too hard
to secure a conviction, they say. Witnesses,
terrified of reprisals from the militants,
refuse to testify against them. Detaining
militants carries the risk that their comrades
will organise jail breaks, abductions or plane
hijackings to gain their release. So the
security forces often murder those they believe
to be guilty. A police report is lodged
describing an armed encounter or an escape
attempt.

The Armed Forces Special Powers Act, used when
troops are deployed to tackle internal
insurgencies, has been widely criticised because
it allows enormous powers to arrest and shoot to
kill. The Act has also been used to protect
military personnel responsible for abuses,
leading to widespread impunity for human rights
abuses. For example, five days after 36 Sikhs
were killed in Chattisinghpora in March 2000,
the Army and police claimed to have killed the
militants that were responsible. The Central
Bureau of Investigation discovered that the Army
had lied, that the so-called militants killed
were illegally detained villagers who had
nothing to do with the massacre. Earlier this
year, five officers were charged with murder.
These men are now claiming immunity from
prosecution under the Armed Forces Special Powers
Act. For this reason, in J&K many troops believe
they can get away with murder. Because of these
abuses, a government-appointed committee in 2005
said the Act should be repealed. But the
government refused to release the report and has
not acted.

Justice in J&K has taken a peculiar form where
patriotism, nationalism, political ideology,
duty, and religion, all dance to their own tune
of retribution.

The killing of supposed informers and traitors by
militants, attacks upon civilians by both
government forces and militants, and the torture
and summary execution of supposed militants by
troops - all illegal in both peacetime and
wartime - are common in J&K. The militants
actually responsible for such attacks are seldom
prosecuted. Nor do troops responsible for such
killings face transparent courts-martial or
criminal courts.

In light of all of this, it is important to
consider Mohammad Afzal Guru’s case very
carefully. Is he really the person that so many
Indians supposedly want dead? Or are they taking
out their frustrations on an easy target? For
many, Afzal bears the burden of representing all
those who dare to oppose Indian rule in restive
parts of the country, because the attack on
Parliament was an attack on India. Conversely,
many Kashmiris would say that Afzal is a freedom
fighter, planning an attempt at the symbol of
Indian oppression.

Both views are flawed. For this multi-religious,
multi-ethnic, multi-cultural state to survive,
Indians have to believe in equal justice for all.
And in the case of J&K, there has been
consistent failure to deliver on this promise.
Dealt with properly, the case of Mohammad Afzal
could be part of the solution, not part of the
problem.

* Meenakshi Ganguly is the South Asia researcher for Human Rights Watch