Afzal
Must Not Be Executed
By Praful Bidwai
19 october, 2006
Tehelka
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.
Praful Bidwai is
a senior Delhi-based journalist
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