Death Penalty Debate Revived

25 October 2006
Mohammad Afzal’s execution was postponed after his family filed a clemency petition, but the debate about abolishing the death penalty still has to take place before conservatives yield ground to liberal opinion, says Bidwai.

NEW DELHI, Oct 25 (IPS) - Even as it confronts terrorism, Indian society stands wracked by deep divisions over whether criminals and their accomplices whose acts cause civilian deaths should be sent to the gallows or not.

The debate is currently focused on former Kashmiri militant Mohammad Afzal, who was sentenced to death by India's highest judicial forum, the Supreme Court, for his alleged role as a conspirator in a terrorist attack on India's Parliament House on Dec. 13, 2001.

Afzal was to be hanged last Friday, but his execution was indefinitely postponed after his family filed a clemency petition. The execution threat will hang grimly over Afzal's head until and unless India's largely ceremonial president, APJ Abdul Kalam, commutes his sentence.

Kalam is fully empowered to do so if the Manmohan Singh government decides that Afzal's life must be spared. But it has come under great political pressure to execute Afzal and it not clear if it can summon up the political will to recommend clemency.

Broadly the division of opinion on whether Afzal should hang or not broadly runs along the Left -Right fault-lines. The leftist parties, which support the Singh government from the outside, oppose Afzal's hanging, as do almost all the parties in Jammu and Kashmir state, who believe that the execution will set back the peace process and fuel militancy.

But the right-wing, ultra-nationalist Bharatiya Janata Party is clamouring for Afzal's execution, as are other conservative groups which believe that terrorism must be exemplarily punished, even at the cost of civil and political rights.

At the social level, the dividing lines are more blurred. Going by media surveys, as many as 78 percent of those polled say Afzal should be hanged. Only 26 percent believe his sentence should be commuted to life imprisonment. In the same sample, 81 percent say "terrorism" deserves the death penalty.

"Public opinion is particularly prejudiced against Afzal because of the way the police publicised his guilt," says Usha Ramanathan, an independent law researcher. "Just a week after the parliament attack, the Delhi police Special Cell unethically broadcast a television interview with Afzal where he allegedly confessed to his role in the crime. This ‘confession' has little legal value, but it impressed many people who watched it live," says Ramanathan.

"People forgot", she adds, "that the officer who organised this interview was notorious for killing many people in fake ‘encounters' and has since been disgraced. The impression about Afzal's guilt has stuck."

The Indian debate on the death penalty has two components: one specific to Afzal's guilt and appropriate punishment for it; and the other, more generic, on the ethics of capital punishment irrespective of the crime.

The first debate is the more vigorous. Proponents of capital punishment for Afzal hold that the Supreme Court heard his appeal and concluded that he was guilty of murder, criminal conspiracy and waging war against the state, and hence must be hanged.

In its judgment of August 2005, the court pronounced: "The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving maximum punishment to the person who is proved to be the conspiratorà"

Those baying for Afzal's blood say the President has no power to renew the apex court's considered judgment.

Opponents of capital punishment for Afzal cite a number of arguments about the weak evidence against him, as well as the harsh nature of the punishment, with a total finality to it.

They also defend the President's power of pardon under India's Constitution, which was upheld by the court. The court recently clarified that the President is fully entitled to reappraise evidence, open an entire case for scrutiny and reach an independent conclusion different from the courts'.

The critics point to many loopholes in the prosecution's case. For instance, there is a major discrepancy between the Delhi police's version of the time and place of Afzal's arrest, and the Jammu and Kashmir police records. The police failed to establish Afzal's critical or pivotal role in the conspiracy. Indeed, they did not even identify the five attackers, who were shot dead.

Afzal confessed to having helped the attackers' "leader" Mohammed to come to Delhi from Srinagar and purchase a car used in the attack. But Afzal was not shown to be the mastermind or chief conspirator.

Besides his own testimony, which the Supreme Court says cannot be relied upon, circumstantial evidence of Afzal's involvement in conspiracy hinges on the recovery of explosives from his house, and most crucially, on the records of cellphone calls to the five attackers.

However, the explosives recovery record is not watertight. The police could not explain why they broke into Afzal's house while he was in jail -- when his landlord had the key.

The cellphone record traced several calls from the five men to a particular Delhi number. 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 machine number, which is unique to each instrument.

But how did the police discover the machine 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) did not match. The evidence is certainly not firm enough to award Afzal the severest possible punishment.

Afzal's personal deposition describes how he was drawn into secessionist militancy, but got disillusioned. He "surrendered" to the Kashmir police but was constantly harassed and subjected to extortion by its Special Task Force. The picture that emerges is that of a person who is not beyond reform.

Equally important is the legal point that during his trial, Afzal was not allowed to have a defence lawyer of his choice and was forced to cross-examine witnesses himself.

"This should itself be considered a strong argument against denying Afzal the benefit of the doubt," says Prashant Bhushan, a Supreme Court lawyer who has taken up a number of pro bono cases, including the Narmada dam litigation. "Absence of an adequate defence opportunity warrants a milder punishment than death. And yet the Supreme Court demanded that Afzal's life should ‘become extinct'. This is a total miscarriage of justice."

Those who oppose Afzal's execution say that the Court was driven by excessive anti-terrorism zeal and violated its own stipulation that the death penalty 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.

"It is as if retribution, rather than a balanced view of prevention and deterrence, guided the Supreme Court," argues Ramanathan. "Retributive punishment is a dubious legal proposition. It also fails to take into account the possibility of reform of the accused."

Afzal's case has triggered two other debates: should clemency be granted when the death penalty will further inflame political discontent in Kashmir; and on the merits of the death penalty.

Most of those who demand that Afzal be hanged also oppose political reconciliation in Kashmir and demand purely military means to tackle the discontent there. Their opponents warn that hanging Afzal would further alienate Kashmiri opinion from the Indian state; the government is duty-bound to consider this while deciding on clemency.

The larger question of the morality or effectiveness of capital punishment is again being debated. India is not among the 129 countries which have stopped awarding the death penalty. The argument against it is reinforced in India by the observation of a former chief justice of India (P.N. Bhagwati), that it is exclusively given to the poor who are unable to defend themselves.

"This makes the death penalty especially repugnant in India", says Bhushan. "It strengthens the argument that it violates the sanctity of human life, is irreversible in its effect and fails to deter heinous crime."

Over the past 60 years only gruesome cases of murder or political assassination, such as that of former prime minister Indira Gandhi in 1984, have attracted capital punishment.

Yet, given the present climate, India is not about to abolish the death penalty. Clearly, a more sane and sober debate will have to take place before conservatives yield ground to liberal opinion.

Published by [LINK01]. Copyright 2006 Inter Press Service