"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.
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.
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 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.