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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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