'The fight for Mohammad Afzal's life is a fight for all that is good and meaningful in Indian democracy; the cry for revenge and his death represents the dehumanized and authoritarian aspects of the Indian State and civil society.'
"The quality of a nation's civilization can be largely measured by
the method it uses in the enforcement of its criminal law."
"The first obligation of the criminal justice system is to secure justice
by seeking and substanting truth through proof. Of course the
means must be as good as the ends and the dignity of the individual
and freedom of the human person cannot be sacrificed by resort
to improper means, however, worthy the ends… Safety of society
and the worth of the human person may co-exist in peace."
…Quoted in the Supreme Court judgement
in
Parliament attack case.
I believe that if Mohammad Afzal is hanged it will be a severe blow
to the future of Indian democracy. Why do I say this? Because the
hanging would further institutionalize the growing lawlessness of
the police; it would strengthen the growing authoritarianism of the
Indian state; it would undermine the peace process in Kashmir
and give fillip to the Hindu fascist forces. Let me substantiate each
of these points with hard facts and then you, the reader can judge
for yourself whether you want to allow Mohammad Afzal to be
hanged in the name of your country.
Police lawlessness:
It is true that the attack on the Indian Parliament was the most
serious challenge to our democracy and if it had been successful
it would have had very long term consequences for the entire
region. Precisely for this reason it was imperative that the police
and investigation agencies should have carried out an honest and
vigorous investigation into the crime. Instead, the investigation
agencies did a shoddy investigation, fabricated evidence and
manipulated the nation's sentiments by telling lies through the
media.
The investigating agencies failed to arrest the three people who
they said had masterminded the conspiracy to attack the
Parliament: Masood Ahzar, Ghazi Baba and Tariq Ahmad. Then
the police try to say that one of the five men who attacked our
Parliament was the same man who had hijacked the Indian Airlines
plane to Afghanistan. However, it was soon discovered that this
was not true. In fact we still do not know the identities of the five
men who attacked the Parliament and they were all killed.
The investigating agencies along with the Special Cell of the Delhi
Police picked up four persons and charged them with the offence
of conspiring to attack the Parliament. And after the arrest they
carried out a media trial to make up for the deficiencies in their
investigation. They held a media conference on December 20, 2001
in the Special Cell, Lodi Road where they made Mohammad Afzal
incriminate himself on the national media. Then in the court under
oath the DCP Ashok Chand denied having had such a conference.
The Delhi High Court and the Supreme Court noted that this senior
police officer told lies on oath in the court.
The courts also noted that the police lied about the time and place
of arrest of the accused; they fabricated evidence including the
arrest memos and used torture to extract false confessions from
the accused. The result of this shoddy investigation was that two
of the accused that the police had tried to frame in the case were
acquitted because there was no evidence against them at all. The
two acquitted are S A R Geelani and Navjot Sandhu wife of Shaukat
Guru. Supreme Court also reduced the sentence of Shaukat Guru
from death to ten years rigorous imprisonment.
The Supreme Court upheld the death sentence against Afzal Guru
despite the fact the court held that there was no direct evidence
against him.
No direct evidence
The Supreme Court categorically stated that there was no evidence
to show that Mohammad Afzal was a member of any banned
organization. In fact the Court acquitted Afzal of the charges under
POTA. They held: "The conviction under section 3 (2) of POTA is
set aside. The conviction under section 3 (5) of POTA is also set
aside because there is no evidence that he is a member of a terrorist
organization, once the confessional statement is excluded.
Incidentally, we may mention that even going by confessional
statement, it is doubtful whether the membership of a terrorist gang
or organization is established."
None of the 80 prosecution witnesses ever even alleged that Afzal
was in any way associated or belonged to any terrorist organization.
Despite these facts the police and a section of the media still refer
to Afzal as a "JeM activist".
Does Mohammad Afzal have to pay the price for the shoddy and
illegal investigation by the corrupt and communal officers of the
Special cell? And the main Investigating Officer, ACP Rajbir Singh
is facing serious corruption charges and has been removed from
the Special Cell. Another officer was himself arrested on corruption
charges.
Rarest of rare cases
Under Indian law death sentence can be awarded only in rarest of
rare cases. There is no doubt that the offence Afzal has been
accused of is serious. It is very serious indeed. But the question is
not the seriousness of the offence but what role, if any Afzal played
and whether the death sentence is in accordance with the principles
of natural justice and equity.
The Supreme Court has not passed any strictures against the
corrupt officers for their shoddy and illegal investigation and has
held there is no direct evidence against Afzal. However, they have
confirmed the death sentence because they believe that his death
is necessary to assuage the feeling of Indian citizens.
I quote from the judgement: "The incident, which resulted in heavy
casualties, has shaken the entire nation and the collective
conscience of the society will be satisfied if the 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 the maximum punishment to
the person who is proved to be a conspirator in this treacherous
act. The appellant, who is a surrendered militant and who was
bent upon repeating the acts of treason against the nation, is a
menace to the society should become extinct. Accordingly we
uphold the death sentence."
Can the collective conscience of the Indian people be satisfied if a
fellow citizen is hanged without even allowing him to defend
himself?
The Supreme Court noted that Afzal was denied access to any
lawyer at the stage of interrogation. The Court held: "The access
to a lawyer at the stage of interrogation serves as a sort of
counterweight to the intimidating atmosphere that surrounds the
detenu and gives him certain amount of guidance as to his rights
and obligations of the police."
Afzal denied legal assistance
Afzal comes from an economically poor family and did not have
the means to engage a lawyer. He was the only one of the four
accused who had no lawyer even though he was the most
vulnerable. Afzal asked the designated court to appoint a lawyer
for him and even gave a list of at least eight lawyers. However, the
lawyers refused to represent him out of fear of being dubbed anti-national.
When Mr Ram Jethmalani, senior counsel and Member
of Parliament offered to defend Geelani the Shiv Sena goons
ransacked his office in Mumbai. Such is the patriotism of the Hindu
fascist forces.
Finally, the designated judge passed an order on July 12, 2002
appointing a junior lawyer as his amicus curiae and gave Afzal the
right to cross examine the witnesses. Everyone knows that a
criminal trial requires knowledge of criminal law procedures and it
is impossible for a layman to conduct a proper cross examination
without legal assistance.
Afzal tried to get legal assistance and if you read his letter to the
All India Defence Committee for SAR Geelani and to his lawyer at
the Supreme Court
you will know how cruelly Afzal was denied an
opportunity to defend himself.
A section of the media and the Hindu fascist forces think that by
hanging Mohammad Afzal without even listening to his story is a
legitimate assertion of nationalism. They are indeed victims of the
ideology of Islamophobia spawned by the US war against terrorism.
But even in the USA the jury trying Zacarias Moussaoui for
committing acts of terror transcending national boundaries was
more compassionate than our courts. Zacarias was not given death
penalty even though he was involved in the conspiracy to attack
the twin towers on September 11, 2001. The reason why he was
not given death penalty was because he has an "unstable childhood
and dysfunctional family resulted in his being placed in orphanages
and having a home life without structure and emotional and financial
support eventually resulting in his leaving home due to his hostile
relationship with his mother."
If the courts had heard Afzal's story they would have realized that
his case cannot be judged or separated from the story of Kashmir
Valley and its tortured history of oppression and domination. There
is no way to judge Mohammad Afzal without understanding and
taking into account the political context of the conflict between the
Indian state and people of Kashmir.
Afzal's story
On October 21, 2004 the Kashmir Times carried Afzal's wife's
Appeal. It was reproduced in the Asian Age on Novemeber 4, 2004.
From Tabassum's
story you will understand the tragedy facing the people of Kashmir.
Afzal has corroborated the facts in his long letter to Sushil Kumar
the senior advocate who appeared for him in the Supreme Court.
However, the facts in the letter were never put on record before
the courts.
It is only when we read about the lives of Afzal and Tabassum that
we begin to understand the outrage of the people of Kashmir against
the death sentence awarded to Afzal. The people of Kashmir have
been pouring out in the streets to vent their anger, resentment and
anguish not only against a death sentence but for them Mohammad
Afzal is a symbol of Kashmiri people's resistance to Indian state's
Kashmir policy. A Resolution passed and signed by all the Kashmiri
leaders included in this collection of documents [available as a link under
'In This Story' at the bottom of this page] reflects the feelings
of Kashmiri people.
The death sentence on Afzal reminds the people of Kashmir of
how the Indian State hanged Maqbul Bhatt in the 1980s. It was
soon after that the Kashmiris took to armed resistance. Afzal's
death sentence has united all Kashmiris across ideological lines.
Would it not be wise to learn from past mistakes and understand
that judicial murder and state revenge can never lead to justice or
bring peace to Kashmir Valley or to our region? The fight for
Mohammad Afzal's life is a fight for all that is good and meaningful
in Indian democracy; the cry for revenge and his death represents
the dehumanized and authoritarian aspects of the Indian State
and civil society.
Read Afzal's story in his words and choose what kind of society
you want to live in.
Nandita Haksar
New Delhi
October 2006
Nandita Haksar is a civil rights
activist, and a Supreme Court lawyer. She is closely associated with the rights
of defendants in the Parliament attack case and this article appears as the
Foreword to the brochure, Afzal's Story In His Words brought out by The
Society for the Protection of Detainees' And Prisoners' Rights (SPDPR),
leading the public campaign against the death sentence to Mohd Afzal. Since many
of the articles carried in that brochure already exist in the dossier for
'Parliament Attack Case' in chronological order, available as a link under Also
See at the bottom of this page, they have been linked directly.