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Why Afzal Must Not Be Hanged

By Nandita Haksar

27 May, 2010

All day I have been getting calls from television channels asking me for a bite on the Afzal case. I have refused. Whatever I wanted to say has been written in my book Framing Geelani, Hanging Afzal: Patriotism in the Time of Terror.

The question of Afzal came up because of the judgement in the Mumbai attack case and death sentence to Kasab. The facts of the two cases are different and there is no link between the two cases.

If the media really wanted to hear Afzal's side of the story it could read his mercy petition published in the form of a book by Champa Foundation along with Bibliophile South Asia in 2007. It is called The Afzal Petition: A Quest for Justice. Except for the Frontline, which reviewed the book, other media ignored it. Now the electronic media wants me to give them a bite so that they can satisfy their conscience that they have put both sides of the story.

The reason why we began the campaign for Afzal was because he did not get a fair trial. He did not have a chance to represent himself. And this fact alone makes it a clear case for commuting his death sentence into life imprisonment.

There is no need to get into any complicated legal reasons. The record of the Sessions Court is enough to show that Mohammad Afzal was denied a fair trial. He did not get a lawyer because he was too poor to pay the fees for a lawyer, and even those who he named refused to represent him (including a well-known human rights lawyer). The lawyer foisted on him by the Sessions Judge did not want to represent Afzal. The Order of the Sessions Judge, dated July 7, 2002, states: "Mr Neeraj Bansal has requested for withdrawal from this case, but he is requested to assist the court during trial." This shows Mr Bansal was an amicus curiae, not a defence lawyer.

Every Indian citizen should read the annexure to Afzal's mercy petition, reproduced in the curative petition filed by Indira Jaisingh. The chart lists the 80 witnesses produced by the prosecution and shows that the lawyer appointed by the Sessions Court for Afzal did not cross- examine 56 of those witnesses, even the most crucial ones. And even those who were cross- examined were done most inadequately, sometimes by merely giving one suggestion.

Anyone remotely interested in justice should just read the court records with regard to the cross-examination of the most important witnesses including the Investigating Officer. The records clearly show that PW 76 (Inspector H. S. Gill), on whose testimony Afzal was given a death sentence, was most inadequately cross-examined.
I do not want to go into the controversies about Afzal's lawyers at the High Court and Supreme Court. Even if they had done their best they could not have undone the damage done at the Sessions Court where the foundation of his case was laid.

These facts alone should shame us as citizens of the world's largest democracy.

Apart from the fact that Afzal was denied a fair trial, even on the facts of the case Afzal cannot be given death penalty because the prosecution did not produce any evidence of his being linked to any terrorist organisation. The Supreme Court of India acquitted Mohammad Afzal of the charges of belonging to any terrorist organisation. There was not even an iota of evidence produced by the prosecution to link Afzal with any banned organisation. Secondly, Afzal was not directly involved in the killing of anyone. Thirdly, the Supreme Court rejected his confession because it was found to be extracted by torture.

The trial of the four persons accused of attacking Parliament exposed the shoddiness of the investigation process. It brought to light the communal atmosphere in the Special Cell, the corruption of some of its officers (the Investigating Officer, Rajbir Singh, was involved in many corruption cases and subsequently murdered) and their story of arrests was proved to be not true. That is the reason that of the four accused two were acquitted, one was given ten years sentence and only Afzal was given death sentence.
Despite this the Supreme Court sentenced Afzal Guru to death. Why? The Supreme Court held: "The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender."

The Kashmiris have not forgotten the injustice perpetuated on Maqbool Butt and they will not forget Afzal if he is hanged. Kashmiris protested against Afzal's death sentence not merely because he was a Kashmiri, but because he was denied justice.

In a resolution passed in Srinagar on September 24, 2005 the leaders of the movement for Kashmir's self-determination asked the following question: "We the people of Kashmir ask: why the collective conscience of Indians is not shaken by the fact that a Kashmiri has been sentenced to death without a fair trial, without a chance to represent himself? Throughout the trial at the Sessions Court Mohammad Afzal asked the Judge to appoint a lawyer. He even named various lawyers but they all refused to represent him. Is it his fault that the Indian lawyers think it is more patriotic to allow a Kashmiri to die rather than ensure he gets a fair trial?"

This resolution was signed by Syed Ali Shah Geelani, Shabir Ahmad Shah, Mohammad Yaseen Malik, Mian Abdul Qayyoom and Nisar Mir.

In contrast, there was a tremendous response in Kashmir to our campaign for defence of the Parliament attack case accused and the acquittal of one accused after he was awarded the death sentence. They felt that for the first time some Indians had taken up the matter without any hidden agenda, without raising funds or for political gain. In fact our campaign created so much goodwill and hope. This is because the story of Afzal is the story of Kashmiris of his generation. And for the first time his story was being heard.

Apart from Kashmir, many Muslims also felt that our campaign for the Parliament accused had set new standards for human rights and they saw some hope in the midst of the Islamo-phobia engulfing our country. The campaign made them feel slightly more secure.

Now once again Afzal is being hanged by the media. Broadcasting the press conference he was made to give inside the Special Cell in violation of all rules and ethics. One TV channel even claimed that it was an interview with its correspondent when it was a conference in which he was in handcuffs and made to make a self-incriminating statement.

If Azal is hanged today will it resolve any problem? Will it satisfy the conscience of this country? Will all those gunning for him feel any safer? The answer to all these questions is 'no'. Hanging Afzal under the pressure of the Hindu Right-wing lobby would only endanger Indian security and would be a stigma on Indian democracy.