Halting the descent into medieval barbarity

23 October 2006

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?

This article was first published by The News International. Copyright 2006 The News International