December 21, 2012
PUDR strongly condemns the death sentence to Mohammad Afzal as unfair and unjust and demands the commutation of his sentence. Not only does PUDR oppose capital punishment in principle as violating the right to life, as based on ‘an eye for eye’ revengeful ‘justice’; as inhumane, brutal, arbitrary, and discriminatory, but having followed the case closely we have observed the denial of justice to Afzal. We therefore appeal for clemency for Afzal.
To begin with, of those whose mercy petitions have come up before the President, the most frenzied demands in recent times have been for the execution of Muslim political prisoners – Ajmal Kasab, a Pakistan national sentenced and executed in the 26/11 Mumbai attack case, and now Afzal Guru. A Kashmiri Muslim sentenced to death in the Parliament attack case, the focus of rabid anti- Muslim sentiment, aggressive nationalism and the state’s ‘war on terror’, Afzal’s case has been embedded in a politics of hate from the very moment of his arrest.
Second, the case against Afzal has been based on faulty investigation, circumstantial evidence, and the suspicious role of the police. Afzal was not present at the site of the shooting, nor could he be associated with any unlawful organization. The police by allowing the media to interview Mohammad Afzal on 20 December 2003 and repeatedly telecast it for two days and then a hundred days after the attack prejudiced the case. Broadcast as the face of terror, the “identification” by witnesses could hardly remain independent and free of influence. While noting some of the violations by the police, the High Court still gave the police the benefit of doubt. The court rejected outright the defense’s argument that Afzal’s confession permissible as evidence under POTA and the fulcrum of the prosecution’s case had been extracted under duress and torture. In its reports ‘A Trial of Errors’ and ‘Balancing Act’, PUDR had provided a detailed critique of the evidence, investigation, role of the police.
Third, as is well known the High Court judgment in the Parliament attack case acquitted one of the accused given death penalty by the Special Court, reduced another’s sentence to ten years’ imprisonment, and acquitted a third who’d earlier been sentenced to five years. In what was clearly a ‘balancing act’, the High Court enhanced Afzal’s sentence to three life terms and two death sentences. Afzal thus became the scapegoat of a judiciary trying to balance justice and populist sentiment. The verdict, an example of the independence of the judiciary, also attested the circumscribed limits of judicial freedom when it comes to political prisoners. Afzal’s is therefore the test case for weighing the independence of the jury. However we believe that the pressures on the judiciary in such a social and political environment should never become an excuse to resort to capital punishment.
Fourth, Afzal’s case casts doubt on the free and fair trial for those tried under anti-terror laws, and sections under the IPC on waging war and conspiracy. The Supreme Court in its August 4, 2005 judgment sentencing Afzal to death even while accepting that there was no evidence that Mohammed Afzal belonged to any terrorist group or organisation, the Court observed “As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances, cumulatively weighed, would unerringly point to the collaboration of the accused Afzal with the slain ‘fidayeen’ terrorists.” In this manner, the fact that Afzal was declared guilty by a trial by media even before his case came up for hearing, that he had been subjected to brutal torture, that he had no legal representation as no lawyers were ready to represent him for fear of reprisal, that he was not even present at the site of the attack were not considered mitigating factors. As noted in PUDR’s report A Trial of Errors, “It is perhaps inherent in a trial under POTA that the accused is disabled to a point where rules of evidence become pliable and conjecture can take over and death sentences become easy to award.”
Fifth, the subjectivity inherent in the criteria of ‘rarest of rare’, the false logic of deterrence, the irreversible nature of the punishment and the possibility of error, make the death penalty to Afzal completely unfair and unacceptable. The Supreme Court in its judgment upholding the ruling of the High Court observed that Afzal as a surrendered militant was “bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct.” The Court thus rejected one of the cornerstones of liberal jurisprudence i.e., the reformative aspect of incarceration. The judgment also states that death penalty was the just response in this case as the “collective consciousness of society” must be satisfied. The protests in Kashmir against Afzal’s capital punishment played no part in the judge’s understanding of the “collective consciousness of society.”
Sixth, the subjectivity inherent in the standard of “rarest of rare”, possibility of judicial error and the irreversible nature of the penalty all call for the commutation of Afzal’s sentence and the abolition of capital punishment. The possibility of erroneous judgments and convictions, and Muslim people’s vulnerability has been brought to light in certain recent judgments. Two Kashmiri Muslims, alleged members of JKLF convicted in the Lajpat Nagar blasts were acquitted after spending sixteen years on death row. In another instance the Mumbai HC acquitted two others, Faheem Ansari and Sabauddin Ahmed, convicted in the 26/11 Mumbai attack case. The proven occurrence of such errors is a powerful argument against capital punishment. That those wrongly incarcerated are Kashmiri Muslims is no surprise. While the acquittal from or commutation of death sentences by these benches are noteworthy for their commitment to justice, the prior convictions and death sentences by lower courts underline the high possibility of error, and that life and death for certain groups of people depend on a roll of the dice and chance rather than free and fair trial.
Seventh, there had appeared to be a slight shift in the political class’s position on capital punishment. President Pratibha Patil commuted the death sentences of 35 convicts while President Pranab Mukherjee has commuted one death sentence. There had been a hiatus of eight years since the execution of Dhananjoy Chatterjee in 2004. The hanging of Ajmal Kasab on November 2012, and the current demand to fix the date of Afzal’s execution, if acquiesced to by the pending Home Ministerial advisory to the President, is a complete regression. It’s also a test case for assessing the exercise of the President’s Constitutional prerogative to re-examine and reject the verdict of the judiciary and its stance on capital punishment.
Lastly, what hangs in the balance is the life of a Kashmiri Muslim who crossed over into Pakistan when very young, who returned three months later and then voluntarily surrendered, who was tortured by the army for refusing to become a BSF informer, who tried to carve out a new life for himself by getting a degree in Delhi University, and set up a business in Delhi, who was unfairly convicted and sentenced to death, who was denied a free and fair trial.
Let him not be sacrificed to the electoral and communal compulsions of this country.
1. Commutation of Afzal Guru’s sentence.
2. Clemency for Afzal on the basis of prolonged incarceration
3. Clemency for all death row victims.
4. Compensation for those wrongfully arrested and incarcerated.
5. Abolition of capital punishment by the Indian government.