www.sacw.net
21 October 2006
Halting the descent into medieval barbarity
by Praful Bidwai
(This article appeared in print in 'The News International')
Is South Asia destined to repeat the history of the Middle Ages, when
executions of criminals used to be public events in much of the world,
elaborately organised to the applause of mobs drunk with revenge?
Going by the clamour for hanging Mohammed Afzal for the Parliament
House attack case in India and Mirza Tahir Hussain for murdering a cab
driver in Pakistan, this could well be the case. That would be a
terrible retrogression from the twentieth century, which witnessed,
first, the end of executions as a public spectacle, and later, the
abolition of capital punishment in nearly 130 countries.
A major reason for this retrogression at least in India is the
post-September 2001 global political climate, and the dawning of the
age of terrorism and counter-terrorism, which has brought back revenge
and retribution. As the Latin American writer Eduardo Galeano puts it:
"In a world that prefers security to justice, there is loud applause
whenever justice is sacrificed at the altar of security…"
Galeano says executions have 'a pharmaceutical effect' on the elite.
'Pharmacy' is derived from the Greek 'pharmakos' -- "humans sacrificed
to the Gods in times of crises".
A section of Indian society is seeking just such pharmaceutical relief
through the demand for hanging Afzal. A medieval lynch mob is being
mobilised through lurid media stories. Some describe how the families
of those killed in the attack cannot get justice unless Afzal is
hanged. There must be no clemency for the traitor. He must die.
Contrary to the widely held impression, the clamour for executing Afzal
does not derive primarily from anti-Kashmiri prejudice and
Islamophobia. But it's nevertheless unspeakably sad that it is driven
by rank bloodthirst and a literalist interpretation of 'justice' for
the victims of the attack, and what constitutes 'adequate punishment'
for that terrible episode. All manner of arguments are being cited to
claim that the president has no power to pardon Afzal, including a
recent (October 11) verdict by India's Supreme Court.
However, India's former solicitor-general T.R. Andhyarujina has
clarified that the power of pardon is not an individual 'act of grace',
but an integral part of the criminal justice system and India's
Constitutional scheme. It does not interfere with the courts'
directives.
The president, as the Supreme Court has itself said, is entitled to
re-appraise a case, and come to a conclusion different from the
courts'. The purpose of the clemency power is to ensure that "the
public welfare would be better served by inflicting less punishment
than what the judgment has fixed." President Kalam, acting on the
cabinet's advice, would be fully within his rights to take a fresh look
at Afzal's case. It's his constitutional, moral and legal duty to
ensure that there are no grey areas in the body of evidence on which
Afzal was sentenced.
Consider the bare facts. Afzal was not the mastermind or chief
conspirator in the Parliament attack. He didn't personally commit
murder or participate in the attack. Yet, he was sentenced to death for
murder (Sec 302 of the Indian Penal Code), waging war against the state
(Sec 121 and 121A), and criminal conspiracy (Sec 120A & B). The
punishment is prima facie excessive and disproportionate.
Assistant Commissioner Rajbir Singh of the Delhi police's
anti-terrorism 'Special Cell' completed the investigation in just 17
days. An 'encounter specialist', Rajbir Singh stands disgraced for
extortion and corruption. Huge gaps remain in reconstructing the
sequence of events, links between Afzal and the claimed masterminds
(Jaish-e-Mohammed's Masood Azhar, Ghazi Baba and Tariq Ahmad), or the
attackers' identity.
The biggest gaps pertain to the role of the Special Task Force of the
J&K police, to whom Afzal, a former JKLF militant, surrendered.
Afzal claims -- without being contradicted -- that he was introduced to
Tariq Ahmad at an STF camp. Tariq took him to a police officer,
Dravinder Singh, who introduced him to Mohammad alias Burger, named as
the leader of the five attackers.
Afzal admits that he brought Mohammad to Delhi and helped him buy the
car used in the attack. But he says Dravinder Singh and Tariq ordered
him to do so. Here, the investigation goes cold. There is no trace of
Tariq or Dravinder. In the murky world of Kashmir's
insurgency-counter-insurgency, it's hard to pinpoint crime and
complicity. And it's a mystery why the police knew nothing about the
activities of a surrendered militant on whom they kept tabs.
Besides his own testimony, circumstantial evidence of Afzal's
involvement in conspiracy hinges on the recovery of explosives, and
crucially, on records of cell phone calls to the five attackers.
However, the explosives recovery record isn't watertight. The police
couldn't explain why they broke into Afzal's house during his absence
-- when the landlord had the key.
The cell phone record traced several calls from the five men to number
98114.89429, which allegedly belonged to an instrument seized from
Afzal during his arrest. The instrument had no SIM card. The only
identity mark was its IMEI number, unique to each instrument.
How did the police discover the IMEI number? There are only two ways:
open the instrument, or dial a code and have the number displayed. But
the officer who certified the recovery said on oath that he neither
opened nor operated the instrument. Besides, the testimonies on the
date of purchase of the phone with a new SIM card (December 4) and its
first recorded operation (November 6) don't match!
This means that there's a large grey area in the evidence. This puts a
big question mark over the conclusion that Afzal must be awarded the
severest possible punishment. Afzal's personal deposition describes how
he was drawn into secessionist militancy, but got disillusioned. After
surrender, he was harassed and subjected to extortion by the STF. The
picture that emerges is that of a person who can act in good faith and
isn't beyond reform.
Afzal's death sentence violates the Indian Supreme Court's own
guidelines, which say that capital punishment should be awarded in 'the
rarest of rare cases' -- when a murder is extremely brutal, grotesque,
diabolical and revolting, targets a community or caste. These criteria
don't apply to Afzal.
India's judiciary has often distinguished between the commission of an
act and conspiracy to commit it. Thus Nahuram Godse was hanged for
Gandhiji's assassination, but not his fellow-conspirator Gopal. In the
1995 Purulia arms-drop case -- the worst breach of security in modern
India -- the state commuted life sentences awarded to six men. Five
ethnic-Russian Latvians were freed -- at the request of the Russian
government. Peter Bleach was freed in February 2004 at the repeated
urgings of British Prime Minister Tony Blair. The reasons for releasing
them involved a judgment on political relations with foreign
governments.
In Afzal's case, the government must apply the 'public welfare' test
and take a statesman-like view based on a compassionate and humane
vision. Finally, we must recall the all-important moral argument
against capital punishment. It violates a principle at the heart of any
civilised society -- prohibiting the planned killing of a person.
Capital punishment does not deter heinous crime. All legal systems are
fallible. It's absurd to extinguish a human life by assuming the
opposite. When will we learn this in the subcontinent?
The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi
Return to the
South Asia Citizens Web