SACW #2 | Oct. 17, 2006 | India: Afzal, Khan, death penalty

[Harsh Kapoor]

South Asia Citizens Wire | October 17, 2006 - Pack 2 | Dispatch No. 2303

India:  Afzal, Khan, death penalty:

[1]  India:  Hang the truth (Sonia Jabbar)
[2]  India:  Unnecessary Controversy (Vinod K. Jose, SPDPR)
[3]  India:  Injecting Canards (Colin Gonsalves)
[4]  India:  Satyameva Jayate? : With Regard to 
the Impending Execution of Mohammad
Afzal Guru (Shuddhabrata Sengupta).
[5]  India: Fair trial demand justified  (Edit, Kashmir Times)
[6]  Mohammed Afzal's  Hanging (Letter PUDR)


____


[1] 


Hindustan Times
October 17, 2006

HANG THE TRUTH

by Sonia Jabbar

Those arguing that Mohammad Afzal's death 
sentence should not be commuted to life 
imprisonment are doing so on the grounds that a) 
the Indian courts pronounced the sentence after a 
fair trial and appealing to the President for 
intervention would amount to undermining the 
judiciary, and b) it would send out a wrong 
message - that India is a weak State soft on 
terrorism. Both arguments are flawed.

First, the presidential review is hardly illegal 
or controversial, enshrined as it is in Article 
72 of the Constitution, precisely to check cases 
where the death penalty is deemed as too harsh a 
sentence or where there has been a miscarriage of 
justice. Second, the apex court had a choice of 
sentencing Afzal under two laws for conspiracy 
and chose the harsher (Sec. 120B read with Sec. 
302 IPC), not because it was the only law that 
would serve the purpose but because it believed 
that only the death sentence could satisfy the 
Indian public: "Š the collective conscience of 
the (sic) society will only be satisfied if 
capital punishment is awarded to the offender." 
So the court projecting the desires of an 
imagined society, tosses the ball into the court 
of the citizens of India, and the citizens of 
India, citing the judgment, toss the ball right 
back into the courts in an absurd game of 
circular logic.

The second argument of 'sending out a wrong 
message' is intimately tied up with assumptions 
of Afzal's guilt. Television shows are full of 
people indignantly proclaiming Afzal to be a 
terrorist and the mastermind of the Parliament 
attack. Both are patently false. The 
investigating agencies and the prosecution named 
three masterminds: Maulana Masood Azhar, chief of 
the Jaish-e-Mohammad and the prisoner exchanged 
for the IC-814 hostages; Ghazi Baba, the alleged 
chief of Jaish operations in J&K; and Tariq 
Ahmed, a Kashmiri. The Supreme Court acknowledged 
that Afzal was neither the mastermind nor the 
executor of the Parliament attack, and that it 
had no direct evidence, but only circumstantial 
evidence to prove Afzal's guilt as a conspirator. 
The Parliament attack was a serious and 
unprecedented crime and Afzal's sensational 
arrest two days after the attack, his trial, and 
subsequent debates on the death sentence all 
serve to divert attention away from the crime 
itself.

On December 13, 2001, an Ambassador with five 
armed men entered the Parliament premises while 
it was in session. The security personnel 
apprehended the car and in the exchange of 
gunfire that lasted for 30 minutes, all five 
terrorists were killed. Considering the enormity 
of the attack and the fact that we nearly went to 
war with Pakistan, the government in a departure 
from all norms (where the CBI would normally 
investigate such a case) named ACP Rajbir Singh 
of Delhi Police as Investigating Officer. And who 
was this man? A self-proclaimed encounter 
specialist, who later conducted the dubious Ansal 
Plaza encounter, and was finally disgraced with 
charges of corruption when he attempted to 
blackmail a couple of west Delhi businessmen.

Not surprisingly, the Parliament attack 
investigation was completed in a record 17 days. 
But with the apex court setting aside Afzal's 
confessional statement as unreliable, there is 
nothing else that confirms the sequence of events 
or the conspiracy theory linking the masterminds 
with Afzal. Who were the attackers? Who were the 
masterminds? What was the conspiracy? Five years 
after the Parliament attack, the Indian public 
still doesn't know the truth, and seems to be 
content to hang a man, close the case and sweep 
the rest under the carpet.

Afzal's own statement recorded by the courts 
blows holes in the police version. And yet the 
honourable judges have selectively ignored the 
startling revelations. According to Afzal, he 
joined the JKLF in 1990, but was disillusioned 
and surrendered before the BSF in 1993. As the 
courts noted, Afzal had to regularly report to 
the Special Task Force (STF) as
per the laws governing surrendered militants. 
Regarding Tariq Ahmad, named by the prosecution 
as one of the masterminds, Afzal says that it was 
at an STF camp that he was introduced to Ahmad. 
As for Mohammad, the terrorist killed in the 
attack, Afzal says that Tariq took him to meet 
the DSP of Humhuma Chowk, Dravinder Singh, who 
then introduced him to Mohammad. Singh allegedly 
instructed Afzal to take Mohammad to Delhi, find 
him accommodation and help him out generally.

Afzal admits doing this and accompanying Mohammad 
to purchase the Ambassador, which Mohammad later 
used in the attack. According to Afzal, his role 
began and ended with these specific acts 
performed at the behest of Ahmad and Singh. And 
yet no one - the investigating team, the 
prosecution, the judges or the reporters - have 
bothered with investigating this further. Where 
is Tariq Ahmad? Is there any truth to the 
Dravinder Singh link? Does none of this merit 
investigation?

For those who may be tempted to dismiss this 
story, Afzal begs us to investigate the records 
of the calls made to his cell-phone and to 
Mohammad's from Srinagar. He claims there were 
many calls to both these numbers from DSP 
Dravinder Singh. This is easily verifiable and 
yet, has not been investigated. Curiously, 
although the Supreme Court alludes to the 
terrorist Mohammad making and receiving other 
phone calls from Dubai and Mumbai, no one has 
thought it fit to scrutinise these telephone 
numbers. Why has the focus of the investigation 
been limited to Afzal, Shaukat, Geelani and Afsan 
Guru and the ambit of investigations not enlarged?

The role of the police is also suspect due to 
their claims and counterclaims. The J&K and Delhi 
Police both announced that Mohammad was Sunny 
Ahmad Qazi, the very same 'Burger', the hijacker 
of IC-814. On investigation, the CBI found this 
to be untrue. If this were so, why has the CBI 
not probed into the other claims made by the same 
agencies? On December 19, the Thane Police 
Commissioner, SM Shangari, made a startling 
announcement. He said the Mohammad killed in the 
Parliament attack was the same Mohammad Yasin 
Fateh Mohammad of the Lashkar-e-Tayyeba whom he 
had arrested in Mumbai on November 23, 2000, and 
handed over to the J&K Police on December 8, 
2000. The Commissioner described Mohammad in 
detail, giving his address in Pakistan, and even 
narrated how the militant had fought the police 
in hand-to-hand combat after he was grievously 
injured. The following day, IGP Rajendran of 
Kashmir Range, rubbished the claim and was backed 
by DCP Ashok Chand of Delhi Police who said, "The 
terrorist named Hamza killed in Delhi on December 
13 was definitely different from the one Thane 
police claim to have arrested last year." 
Thereafter, we have heard nothing more on this. 
Who was lying and why? If the Parliament attack 
Mohammad was different from the one captured in 
Thane, what happened to the Thane Mohammad? Why 
was he not produced? Why wasn't anyone interested 
in cross-checking this claim?

And how hard did the investigators try to catch 
the alleged masterminds, Masood Azhar, Ghazi Baba 
and Tariq Ahmad? The Delhi Police claims the 
Srinagar Police arrested Afzal and Shaukat when 
they were going to meet Ghazi Baba with 
Mohammad's laptop and Rs 10 lakh in cash. In 
which case, why were they nabbed and not followed 
to the meeting with Ghazi Baba? Why did the 
Srinagar Police not want to catch the suspected 
mastermind when they had specific information, 
allegedly from Afsal Guru, about this meeting?

On April 3, 2002, Judge SN Dhingra asked the 
Delhi Police whether Interpol had been alerted 
for the arrest of the three masterminds. A senior 
police officer replied that the "matter was being 
looked into".  Thereafter, we have heard nothing 
more about Interpol or any further activity to 
arrest the three masterminds. And apart from a 
few members of civil society, no one - not the 
judges, the security experts, the investigating 
agencies, the Indian intelligence agencies, MPs, 
journalists - have thought it fit to demand a 
probe.

If I were the mastermind, would hanging Afzal 
deter me from planning further attacks, or would 
it only confirm my suspicions that India is 
content to leave me untouched as long as they get 
somebody to hang? The Supreme Court observed, 
"The challenge to the unity, integrity and 
sovereignty of India by these acts of terrorists 
can only be compensated by giving the maximum 
punishment to the person who is proved to be the 
conspirator in this actŠ" I beg to differ. Afzal 
is the reddest herring that has appeared before 
the Indian republic in a long time, and the 
challenge to this country's "unity, integrity and 
sovereignty" would be far better met by 
conducting a thorough and professional probe into 
the Parliament attack instead of hanging a man 
who is so clearly the scapegoat in the whole 
sordid affair.

Sonia Jabbar is an independent journalist who has 
been writing on Kashmir since 1995.


_____


[2] 


Outlook
Oct 16, 2006

'Unnecessary Controversy'
'We are not questioning Mr Gonsalves's integrity 
as a lawyer and we hope that we can put this 
controversy to rest so that the work to try and 
save Afzal's life can move ahead.'

Vinod K. Jose, SPDPR

We are deeply shocked by the controversy Mr. 
Colin Gonsalves has raised at this crucial 
juncture of the campaign for clemency for 
Mohammad Afzal. We would like to state that we 
are not questioning Mr Gonsalves's integrity as a 
lawyer and we hope that we can put this 
controversy to rest so that the work to try and 
save Afzal's life can move ahead.

We would like to place the facts along with 
supporting documents for the record so as to put 
an end to this unnecessary controversy.

On February 15, 2003 Colin Gonsalves filed an 
Application under section 386 and 482 of the 
Criminal Procedure Code for Addition of 
Additional Grounds. In this Additional Affidavit 
Para (c) states:

     "Appellant states that Section 354(5) Cr. PC 
is unconstitutional and ultra vires Article 21 of 
the Constitution of India, in as much as death by 
hanging is the only manner of execution 
prescribed in law and such an execution 
constitutes cruel, inhuman and barbaric treatment 
and also constitutes exceptionally harsh and 
cruel punishment. This section was upheld in 
Bachan Singh's case on the reasoning that death 
by hanging in its severity is comparable to any 
other known method of execution; but this is many 
years ago. In the last decade there have been 
tremendous strides in techniques of execution 
and, the lethal injection for example, is proven 
to be a less painful method of causing death. For 
the legislature to prescribe death by hanging as 
the only method of execution is arbitrary, harsh 
and discriminatory and violative of Article 21. 
The Bachan Singh's case therefore on this point 
is outdated and obsolete and the issue deserves 
to be looked at afresh."

Mohammad Afzal told us he was asked to sign the 
Affidavit on February 4, 2003 without being shown 
the contents. He discovered that his lawyer had 
made this submission from a report in the Indian 
Express. Afzal was upset and he tried to contact 
his lawyer for an explanation but his lawyer did 
not meet him. At the time of Appeal to the 
Supreme Court he refused to give Mr. Gonsalves 
his Vakalatnama and instead wrote to the 
Chairman, All India Defence Committee for SAR 
Geelani, requesting them to find him another 
lawyer.

Mohammad Afzal wrote on January 26, 2004:

     "Being in high-security ward of Tihar Jail 
where it is too difficult to communicate with 
outer people like lawyer etc., in a week, I have 
seen a news Through Indian Express daily that my 
lawyer had Told the High Court on behalf of me 
that I (AFZAL) had accepted the death sentence 
and I want only that method/way of 
killing/hanging should be changed by injecting 
the Powerful Toxic injection So as to reduce the 
pain of dying. I object and challenge this false 
statement which has been actually given by lawyer 
himself without my knowledge and consent making 
my whole process of appeal a mockery."

In September 2004, Afzal's wife Tabassum in an 
Appeal which was published in Kashmir Times and 
later in Asian Age and outlookindia.com on 
November 4, 2004 wrote:

     "In the High Court one human rights lawyer 
offered to represent Afzal and my husband 
accepted. But instead of defending Afzal the 
lawyer began by asking the court not to hang 
Afzal but to kill him by a lethal injection. My 
husband never expressed any desire to die. He has 
maintained that he has been entrapped by the STF. 
My husband was shocked but he had no way of 
changing his lawyer while being locked up in the 
high security jail."

To the best of our knowledge Mr.

Colin Gonsalves did not issue any clarification, 
or seek to meet his client so that the matter 
could be clarified. It can be imagined how 
distressed Afzal was when he learnt his lawyer 
had asked that he be killed by a lethal injection.

After Supreme Court rejected Afzal's appeal he 
wrote to Society for the Protection of Detainees' 
and Prisoners' Rights (SPDPR). His letter shows 
anguish and helplessness. In that letter he wrote:

     "I was repreented by one Human rights 
activist Colin Gonzalves. (Advocate) in High 
Court. I was shocked when I came to know that 
from news paper Indian Express. That my Advocate 
has requested the court that AFZAL wants that he 
should be killed by Lethal Injection rather by 
hanging. When I contacted From High Security ward 
of Tihar Jail to my Lawyer He neither came to 
meet me nor informed me regarding this False 
request which I never did." 

Mr. Colin Gonsalves has claimed that "I have 
never argued that Afzal accepts his guilt and 
that he prays for death by lethal injection" yet 
Mr. Jethmalani says that he remembers Mr. 
Gonsalves arguing that "there are more humane 
methods of carrying out the death sentence and a 
lethal injection is one of them."

Incidentally, the South Asia Human Rights 
Documentation Centre (SAHRDC) has brought out a 
monograph entitled " Legitimising Cruel, Inhuman 
and Degrading Treatment: The Ignominy of the Law 
Commission of India's Report on Modes of 
Execution " has documented how cruel is death by 
lethal injection.

Mr Ram Jethmalani has stated that if Mr 
Gonsalves's argument on the lethal injection had 
succeeded, there would not have been any 
"provision left for executing the death 
sentence." If we accept Mr Jethmalani's 
contention then we would have to ask why the 
argument finds no place in the 250 page written 
submission submitted by Mr Gonsalves at the end 
of his arguments in the High Court.

It is unfortunate that neither Mr. Colin 
Gonsalves nor Mr. Ram Jethmalani contacted SPDPR 
and sorted out the matter and instead given rise 
to controversy which can only have an adverse 
effect on the campaign.

We would like to also point out that it is most 
unfortunate that Ms. Nandita Haksar's name has 
been dragged into this controversy. Her 
reputation as a committed Human Rights lawyer 
cannot be questioned by anyone who has any 
knowledge of the Human Rights movement in India 
and much of her work is done with quiet 
dedication away from public eye. She spent more 
than three years running the campaign for 
Geelani's acquittal and SPDPR has requested her 
to help them run the campaign for Afzal.

Mohammad Afzal's letters have been published by 
SPDPR in their pamphlet entitled "Hanging Afzal 
Would be a Stigma on Indian Democracy: Afzal's 
Story in his Words ".

We believe that the controversy can be put at 
rest if Mr. Colin Gonsalves apologizes to Afzal 
and Tabassum and asks for their forgiveness for 
causing them so much pain and anguish.

Vinod K. Jose is Secretary, Communications, SPDPR 
(Society for the Protection of Detainees' and 
Prisoners' Rights)
_____


[3]


Hindustan Times
October 17

INJECTING CANARDS

off track | Colin Gonsalves

Afzal's defence rested on two gross infirmities: 
one, it was a trial by media; two, he was denied 
a lawyer. Before his trial could begin, the 
police called in the media to broadcast a 
nationwide 'confession' on prime-time TV. Such a 
'confession', though inadmissible as evidence in 
court, had a huge popular impact and a fair trial 
became nigh impossible. ACP Rajbir Singh stated 
in his testimony: "I allowed media to interview 
accused Afzal in my office under the consent of 
my senior officer, namely DCP."

The High Court observed that it has become a 
disturbing feature that the accused are "brazenly 
paraded before the press and are exposed to 
public glare in cases where test identification 
parade arise, weakening the impact of 
identification. What is fundamentally disturbing 
is the fact that custody is given by the court. 
This custody is not to be misused."

Afzal was not given a lawyer in the trial court. 
He wrote to the judge saying he needed a 
competent senior advocate and suggested four 
names. The judge inquired from two of the 
advocates present in court, who declined, and 
proceeded to appoint a lawyer for Afzal. When 
Afzal said he did not want that lawyer and the 
lawyer informed the court that he wished to 
withdraw, he was appointed to assist the court. 
Assisting and defending are two things. No lawyer 
should be forced to proceed with a trial, 
especially in a capital case, against his wishes.

The Constitution permits the sentencing to death 
according to Sec. 354(5) of the CrPC, but only by 
hanging. If this section is struck down as 
constituting 'cruel, inhuman or degrading 
treatment', there will be no law by which life 
can be taken, and consequently the sentence of 
death cannot be executed. The challenge to this 
section was pleaded in Afzal's case with a view 
to having the section declared null and void. No 
argument was made that Afzal be given the lethal 
injection.

I cannot understand why people who showed no 
interest in Afzal's fate through all these years 
of trial and appeal, are now spreading the canard 
that I asked for his death by lethal injection. 
It distracts from the presentation to be made 
before the President and does grave disservice to 
Afzal.

The record of the trial court shows he did not 
receive a fair trial. The arguments before the 
President should proceed on the basis of the 
evidence on record that would shock anyone's 
conscience.

Colin Gonsalves is a senior advocate, Supreme Court.




_____


[4]

Posted on reader-list from sarai.net
Date: Mon, 16 Oct 2006 22:57:06 +0530

SATYAMEVA JAYATE? : WITH REGARD TO THE IMPENDING EXECUTION OF MOHAMMAD
AFZAL GURU IN TIHAR JAIL.

Shuddhabrata Sengupta


A few days from now, a man called Mohammad Afzal Guru, son of Habibullah
Guru, currently resident in Ward Number 6 of Jail Number 1 in Tihar
Central Prison in Delhi will hang to satisfy the bloodlust of the Indian
Republic, unless the President of India thinks otherwise,  A few weeks
ago, I recall reading the NDTV newscaster Barkha Dutt's breathless three
cheers for the fact that India retains the death penalty (so that the
indignant tears in the eyes of television presenters like herself, and
the loved ones of murder victims, can be wiped away with each rope that
tightens around the neck of condemned prisoners). [See 'A Battle for
Life : Barkha Dutt, on NDTV Columns, September 20, 2006
http://www.ndtv.com/columns/showcolumns.asp?id=1061 ]

At times like this, when hangmen are asked to practice their moves,
nothing comes more in handy than the teflon coated enthusiasm for
capital punishment of television crusaders like Barkha Dutt. Great
democracies, like the United States of America, the Islamic Republics of
Iran and Pakistan, the Peoples Republic of China, the Democratic Peoples
Republic of Korea and enlightened states like the Kingdom of Saudi
Arabia are known for their zeal in retaining the death penalty as a
necessary part of state ritual. The Republic of India is in eminent
company, and I am grateful to Barkha Dutt for making me remember that. I
need not advance moral and ethical arguments against the death penalty
here, because they have been so well countered by Ms. Dutt. Never mind
the fact that states that have done away with the death penalty have
lower rates of violent crime, never mind the fact the innocence of
people that  condemned to die has often been established after they have
been executed. Ms. Dutt has demonstrated that the death penalty is the
balm that comforts her agonized soul. And many of those who argue that
the President should not in fact assent to the petition filed by Afzal's
family are also arguing that the Afzal must hang so that the Indian
democracy and the loved ones of those who died defending the Indian
parliament may rest in peace. The dignity of the Indian Republic hinges
on the lever that will catapult Afzal into the empty space under the
gallows in Tihar jail. As the noose tightens, our polity will blossom
with renewed vigour.

In championing capital punishment, Barkha Dutt also joins the
illustrious pantheon of the good and the great in India, such as Shri
L.K. Advani, Shri Maninderjeet Singh Bitta (of the All India Anti
Terrorist Front) and Shri Buddhadev Bhattacharya who have all, from time
to time, publicly expressed their desire to see different people hanged
to death in recent times. Politicians such as Ghulam Nabi Azad who have
pleaded for a 'postponement' of Afzal's execution in view of 'prevailing
circumstances' are as cynical as those (especially in the BJP) who
demand that Afzal be hanged as soon as possible while simultaneously
demanding that the unfortunate man called Sarabjit Singh who is held in
death row in a Pakistani prison be released. Broadly echoing the Ghulam
Nabi Azad line (with some nuanced differences) is the gerontocray of the
Communist Party of India, which has not found fault with the verdict,
only expressed an apprehension about the consequences of its execution.
The central leadership of the Communist Part of India (Marxist) has
maintained an undignified and convenient silence, even though its
prominent legislator in Kashmir, Yusuf Tarigami has publicly opposed the
death penalty for Afzal. Farooq Abdullah of the National Conference in
Jammu and Kashmir has suddenly discovered what he calls 'innocence' in
Mohammad Afzal Guru in an interview given to Karan Thapar, and this is
somewhat belated, because he never said a word about the 13 December
Case while he was a coalition partner of the then ruling NDA.
Presumably, the National Conference's sensitivity to the issue of Human
Rights violations in Jammu and Kashmir have an inverse relationship to
the fact of its being in office in that state. The only Indian
politician of any stature who has publicly expressed a principled
opposition to the death penalty, and to capital punishment as such, is
the DMK patriarch K. Karunanidhi. The Indian political class's romance
with the death penalty is not anything new, and we must remember that
even Mohandas Karamchand Gandhi could see nothing wrong in Bhagat Singh
being hanged. Capital Punishment and the core values of Indian
Nationalism seem to have a close relationship. Perhaps they are both
predicated on the idea that the nation-state and the rule of law demands
sacrificial victims from time to time to re-invigorate the tired
vitality of its foundations. The Indian state hanged Kehar Singh when it
could not find anyone else to hang in order to restore it's vitality in
the Indira Gandhi Assasination case, and this time, Mohammad Afzal Guru
must serve that necessary function. Perhaps Giorgio Agamben, whose
rediscovery of the concept of the pariah turned sacrificial victim of
the foundational violence of the state though the term - Home Sacer has
found such contemporary resonance in the light of Abu Ghraib and
Guantanamo Bay , needs to turn his attention to the precincts of the
maximum security ward in Tihar Prison. Mohammad Afzal Guru is as likey a
candidate today as any for the status of Homo Sacer.

Today, I read Vir Sanghvi, another eminent media mandarin, wrestle with
his conscience about whether or not Afzal should hang. In a large op-ed
piece in the Hindustan Times e paper next to a smaller piece from Karan
Thapar that hesitantly takes a different view.

[See - The Complexity of Execution, Vir Sanghvi, Counterpoint, Hindustan
Times, October 15, 2006
http://www.hindustantimes.com/news/181_1820675,00300001.htm
and - Should Mohammad Afzal be Hanged, Karan Thapar, Hindustan Times,
Sunday Sentiments, October 15, 2006
http://www.hindustantimes.com/news/181_1820688,00300002.htm]

And like all good Indian liberals who won debating prizes in high
school,  Sanghvi too does this by dispassionately examining the pros
('good strong signal to 'terrorists') and cons ('this damn inconvenience
of the fact that he did not really have a legal defence') of execution
before saying -  "um, yes, maybe, there will be some good that can come
out of hanging him, because you know, it might, you know, stop a
hijacking, because, you know, you can't really hijack a plane to ask for
a dead man to be brought alive, can you" - impeccable reasoning, and so
much more reassuring for Vir Sanghvi the next time he checks in to fly.
Dead Afzal, no hijakers. Its as simple as that. In fact we should
logically follow through with the Sanghvi logic to propose that  all the
prisoners in Tihar jail  be summarily executed tomorrow.  it would solve
the burgeoning Indian aviation industry's security concerns for the next
ten years. Conscientious Citizens like Barkha Dutt and Vir Sanghvi
should be invited to conduct executions, preferably live, on television
(there is always such a shortage of hangmen, and it would make for such
good reality tv, and people could phone in saying how much more tranquil
they feel when they watch an execution) in order to redeem frequent
flyer points against swift and successful hangings. The more they hang,
the higher they will fly. Fasten seat belts and hang a Kashmiri.

I wish I were in Delhi, where I could get more of a sense of what is
going on, talk to people, get a grip on the fact that there are faces
that I would see and voices that I would hear of many people I know who
would not be as hysterically celebratory about hanging people in prisons
as the firm of Dutt, Singhvi & Co and others like them happen to be.
But all I can do is read what I can where I am from the internet. So my
day begins (when I get online) by typing the words 'Afzal', 'Guru' and
'Hanging' on google, and hoping that I can soon add 'Clemency' or
'Commutation' to my search string to yield some hopeful result. When I
did add the word 'clemency' or 'pardon' recently, I got a result that
confirmed my long held views on the wisdom inherent in our republic's
judicial apparatus. The lord justices of the Supreme Court of India have
sent out a thinly veiled warning addressed to the President, instructing
him to act with caution, or else provoke a judicial review of the
executive authority of the Presidency. Their words suggest that the
President must exercise the utmost restraint and consideration, and not
be carried away by passion, in arriving at any decision regarding the
death penalty awarded to Mohammad Afzal Guru.

It seems remarkable to me to think that the state's decision to kill a
man in cold blood should be prefaced in terms of reason, caution,
consideration and restraint, and that the mere consideration of reasons
to save that life should be qualified by terms that suggest that even
the entertainment of such a thought could be unreasonable, excessive,
rash and impudent.

I have remarked on the sagacity of the Supreme Court of India on other
occasions, especially when the lord justices have passed innovative
verdicts that suggest that illegal squatters on urban land in a city
like should think more carefully about inclement weather, but I am once
again amazed at the wisdom and sopistication that some lord justices of
the  Supreme Court, and other distinguished legal professionals like
Soli Sorabjee, our erstwhile attorney general, have displayed in
suggesting that even the banal human quality of compassion, or the
ordinary, commonplace tendency to doubt that justice has been done when
an accused person has gone unheard, or apprehensions about the
unleashing of a new spiral of violence, can on occasion be wild,
unreasonable, excessive and ever so intemperate. It is evident from the
tenor of their pronouncements that cheap sentiments like sympathy, or
ordinary doubts about the due processes of trial, or worries about more
loss of life, when seen through the exalted filter of national security,
are but irritating excesses that need to be held in check. That truth
alone must triumph that the Supreme Court, the Ministry of Home Affairs
and the Intelligence Bureau deem acceptable for the health of the Republic.

In view of this, we might as well propose an amendment to the
constitution such that the national motto be expanded to read -
'Sravoccha Nyayalaya-cha-Guptachara Vibhaga-cha-Griha Mantralayasya
Satyameva Jayate". Such a move would yield a national motto or slogan
that would render a resonant and precise statement about the present
status of the concept known as the truth in the Indian Republic,
especially in the wake of the events of the 13th of December, 2001. To
have all manner of truths, especially crassly inconvenient and common
ones emerge triumphant, such as the fact that the Indian state is a
brutal colonial power that holds Kashmir and parts of the North East by
military force and with the aid of  "shoot at whim" laws such as the
Armed Forces Special Powers Act will simply not do. We need refined and
processed truths - such as those that condemn Mohammad Afzal Guru to hang.

Still, It is possible that APJ Abdul Kalam (the man, not necessaily the
President, or the erstwhile weapons designer) may have some residual
human qualities that may make him look askance at the fact that Mohammad
Afzal Guru is sentenced to be hanged in a few days on the basis of
statements that actually clearly implicate agencies of the Indian
Government such as the Special Task Force that operate in the territory
of Jammu and Kashmir occupied by India in the affair of the attack on
the Indian Parliament in December 2001. That is why the Supreme Court
must rush to protect APJ Abdul Kalam the President from being swayed by
APJ Abdul Kalam the human being. No untoward considerations, such as the
possibility of the outbreak of rage in the wake of a blatantly unfair
execution, or the simple injustice of a man being killed for being
trapped in circumstances that were totally beyond his control, must be
allowed to stay the  president's or the hangman's hand. He has listened
to Afzal's son and wife. He has given them his time, and that shows how
magnanimous the Indian state can be, and now, he must say no. Afzal must
die.

We do not need a reminder of the fact that Afzal's alleged involvement
in the planning of this attack is the only reason why he is being
sentenced to die. Unlike, other instances of the award of capital
punishment, where the accused are likely to be people who have actually
killed other people in particularly heinous ways, Afzal is accused only
of being an an actor in a conspiracy, a cog in the wheel of terror. His
was not a hand that held a gun on that day. He fired no shots, killed no
one. He was caught because his phone number was in the phone directory
in one of the mobile phones found on the person of the dead terrorists.
In a letter written to his Supreme Court defence lawyer, Afzal points
out that his mobile phone has numbers of STF personnel, and the same
logic by which he is implicated in the conspiracy of December 13 should
logically lead to an investigation of the STF personnel's role in the event.

   If that is so, then it would be natural for us to expect that all
leads as to who else may be implicated in this conspiracy would have to
be exhausted before any one of the conspirators or actors (in this case
Afzal) is given the ultimate punishment. We know that Afzal did not have
adequate legal representation in the course of his trial, but we also
know that he made statements that the court took note of, in the sense
that they are on the court record, which include statements that
implicate officers of the Special Task Force in Jammu and Kashmir. These
are public documents, and they have been meticulously collated in
NIrmalangshu Mukherjee's courageous and disturbing book on the December
13 case - (December 13: Terror over Democracy. Published by Bibliophile
South Asia, New Delhi. 2005). This book is available at any good
bookship in Delhi, and I am amazed that the media has not in fact made
more of this story than it has.

[For more details of why Mohammad Afzal should not die, see Nirmalangshu
Mukherjee's excellent summary of the main arguments outlined in his book
   in - 'Should Mohammad Afzal die?', The Economic and Political Weekly,
September 17, 2005 this article is available online at -
http://www.indianet.nl/indpk162.html#20050917b]

Perhaps, once again, phone calls from the Intelligence Bureau and the
Home Ministry to editorial offices of newspapers and television channels
have done their job. That is the charitable explanation, that the
majority of the media has acted out of fear. The uncharitable
explanation is that the media is silent about Afzal's relationship with
the STF for the same reason as to why it was so vocal in loudmouthing
SAR Geelani's presumed culpability in the same case. The mainstream
media, to a very large extent is not an organ that takes orders from the
intelligence apparatus. It is in fact a part of the intelligence
apparatus. The 13 December Case will go down in the history of Modern
India as an instance  that revealed the extent of  embedding of the
intelligence apparatus of the Indian state within the so called 'free'
media in India.

In this delicate game of silence and overstatement, the courts have
based their indictment of Afzal partly on the statments made by him and
partly on confessions extracted under brutal physical and mental torture
in police custody, and the majority of the reporting in the media has
conveniently overlooked that fact that the names that have been named by
Afzal in these very statements point in the direction of the Indian
Government's security, intelligence and counter-insurgency apparatus in
Jammu and Kashmir. The 'needle of suspicion' to use another favourite
Supreme Court phrase, is pointing all over the place, but no one seems
to be looking. There is a pattern here that we need to recognize -  when
things are obvious, look away, and when truths need to be manufactured,
use every tool in the book to manufacture them.

We need only to remember that barring Shams Tahir Khan of Aaj Tak, no
other journalist present during Afzal's infamous press conference stage
managed by Rajbir Singh the sometime decorated special cell police
officer, encounter expert and part time extortionist, had the gumption
to report that Afzal had in fact stated that SAR Geelani was in no way
involved with the events of December 13. All other journalists and the
news channels that they represented, who had been present at that
'encounter' with the truth according to the Delhi Police's Special Cell,
had fallen in line with Rajbir Singh's 'request' to edit out that part
of Afzal's testimony. The only English language national level
newspapers or publications that more or less consistently maintained an
independent tone were the Hindu and to some extent, Frontline. The only
news website that toed a slightly different line was rediff.com, and the
only detailed un-biased reports that were published, could actually be
found in regional newspapers and publications, mainly in Kashmir, and
one, oddly in Kerala.

What this suggests is that the intensity in the court's and the broad
sweep of the national mainstream media's desire to execute Afzal and to
focus on him alone, to the exception of those individuals named by him
actually constitutes a move to consign aspects of the truth of what lay
behind the events of December 13, and the possible part played in them
by the 'deep state' in India, into a kind of oblivion - a black hole of
judicially mandated and media packaged silence from which nothing can be
recovered for posterity. With Afzal's death, the possibility of concrete
evidence for alternative  explanations behind the events of that day
will die. We will never know, who or what entity actually masterminded
the shootout in the Parliament that almost provoked a nuclear war and
ensured the legislation of the infamous and now repealed Prevention of
Terrorism Act by the then BJP led NDA ruling alliance. If the sentence
is carried out, we will never know how much the shadowy senior echelons
of the intelligence community in India, or the then home minister and
deputy prime minister L.K. Advani, or the then defence minister George
Fernandes, or the then prime minister A.B. Vajpayee knew about the fact
that a medical and surgical equipment salesman and surrendered JKLF
militant called Mohammad Afzal Guru was  being 'cultivated' trhough
torture, threats and extorition by STF personnel and serving military
and para-military officers. We will never know as to whether or not
this 'cultivation'  led up to the processes that included his being
instructed to take a man called Mohammad to Delhi, who eventually turned
up as the body of a slain terrorist outside the Indian Parliament in
Delh on the 13th of Decemberi. If Afzal dies, the deep state in India
will just get a few fathoms deeper, and many uncomfortable secrets will
die in its depths.

As I write this, I am sitting in far away London, looking at pictures of
Andamanese skulls, composite photographs of prisoners in British prisons
and fingerprint impressions of convicts taken in un-named colonial
prisons in nineteenth century India. Sometimes I do this in two rooms
scattered in the campus of the University College of London that houses
the remains of what was once founded as the National Eugenics Laboratory
by Francis Galton. Galton championed the idea that all social problems
could be solved by lessons learnt through indexing, recording and
measuring bodies and minds. The truths he sought to legislate, about
innate criminality and intrinsic genius, about racial characteristics
and inherited traits were to be made concrete by measuring heads and
deducing patterns from accumulated fingerprint impressions. In a series
of haunting photographs, Galton produces what he calls
'photo-composites' -  anthropometric images obtained by layering
portraits on to each other such that the features blend in to create a
composite face. A face that takes something from all the faces that go
into it. So you have the average criminal, the average lunatic, the
average East End Jew, the average of eight Andamanese crania. When I
think of the events that unfolded on December 13, 2001, I cannot but
help think of Galton's photo-composites, and his attempts at deducing
the extent of criminality in a given population by producing an average
image based on the statistical relationships of the distance of their
noses from their chins. Remember how Mr. Advani, the then home minister
said on December 13, 2001, that the slain 'terrorists'  - 'looked like
Pakistanis'. Perhaps he had an image of the 'average' Pakistani stored
in the database in his cranium, with which he could compare the features
of the dead men and come to this remarkable conclusion. Afzal's
indictment too, is an instance of the photo-compositing method of
jurisprudence. He is a Kashmiri Muslim man of a certain age, he once was
a JKLF activist, he moved often between Srinagar and Delhi for reasons
to do with his business.  It goes like this - you take any Kashmiri
Muslim man of a certain age, and they should look and sound adequately
Kashmiri, you identify the fact that they may sympathise or may once
have sympathised with the movement to rid Kashmir from brutal military
occupation (which is not hard to do, because most human beings would
want an end to the particular oppressions that beset them) , you zero in
on the fact that he moved between Delhi and Srinagar with some frequency
and you mix these facts together to produce the face of a terrorist.
There are thousands of such faces, and what matters is not individual
culpability in a given act, or even whether a person was coerced or
bludgeoned or cajoled into participating in a chain of events, but that
he should 'look' the part. His face should be an echo of the 'composite'
of the visage of the terrorist that we have learnt to see in our heads.

So much so that when the judges see Afzal, they also see Maqbool Butt,
the Kashmiri man whose hanging on February 11, 1984, precipitated by a
crime (the assasination of the Indian diplomat Ravindra Mhatre in
Birmingham) that he did not commit, was one of the sparks that stoked
the ongoing Kashmir uprising. Maqbool Batt, who spent long years in
Indian and Pakistani prisons, was like Afzal. dogged by the persistent
shadow of his entanglement in Indian (and Pakistani) intelligence
maneouvres. He had been sentenced to death many years previously for the
alleged murder of an Indian military officer during the prehistory of
the insurgency in Kashmir in the 1960s, when Butt had first started a
rag tag band of partisans called the National Liberation Front.
Subsequently, he may well have come under the shadow once again of
Indian intelligence outfits, who used him, it is alleged, to mastermind
the hijack of the Indian Airlines plane Ganga in 1971 - ( a remarkably
non violent hijack in which no passengers or crew were harmed, but an
ageing plane that had been out of commission and was surprisingly
brought back into use days before the hijack was conveniently blown up
while stationary in a Pakistani air field).

The shadowy truths of the RAW's involvement (through the Border Security
Force) in the hijacking of the Indian Airlines Fokker Friendship plane
Ganga, in 1971 (one of the precipitating factors of the 1971 war) with
which Batt had something to do, is one of those episodes in the history
of modern India which has never quite seen the light of day. And Batt
too, like Afzal, may have eventually been a pawn in a game far more
complex then he could have comprehended at the time. It is possible that
Butt too, like Afzal was acting at least part of the time under orders
that emanated from quarters deep within the Indian deep state.
Eventually, Butt, the secular idealist, the sometime double agent, the
victim of Indian as well as Pakistani justice, returned to India, was
arrested and put away to be forgotten in Tihar prison, and in the wake
of Mhatre's kidnap and murder, made to walk to the gallows. While alive,
he had been an obscure, little known agitator, in death he became
'Shaheed-e-Kashmir'. He proved to be far more dangerous in his death to
the Indian state then he was when he had been alive, so much so that the
Indian army routinely swoops down on his village on the 11th of February
each year to prevent his family from holding a private memorial function
in his honour. His brother too was killed in an encounter, his family
prevented from coming to Delhi on the day of his execution, and all
pictures or portaits of him have been taken away from the private homes
of his immediate family. The cynical shortsightedness and the awkward
combination of memory and forgetfulness that characterizes Indian state
policy in Kashmir may once again produce

Francis Galton's racially motivated pseudo-science died a quiet death,
and persists mainly as an object lesson in the dangers of the attempt to
harvest truths about the human condition on the basis of numbers alone.
But it is making a quiet back door entry through the new sciences of
biometrics that are at the core of the information technology of the war
against terrorism - which itself is the key operation of the settung up
of a new kind of state machinery predicated on the hyper-intensive
surveillance of  those it rules. This includes the impossible holy grail
of machine assisted facial recognition as a preventive forensic measure
designed to identify and neutralize potential terrorists. This would
mean giving a scientific edge to say the act of hanging Mohammad Afzal
Guru were it to take place, before, not after the 13th of December.

In some crude ways this pre-cognitive neutralization of the terrorist to
be is already a refined science in Indian statecraft. It includes the
provisions of the Armed Forces Special Powers Act which enable armed
forces personnel to shoot to kill on the basis of suspicion. it is the
theory of the practice known as the 'encounter'. Last week, even as the
attempts to protest against the impending execution of Mohammad Afzal
Guru were gaining momentum, two other events occured in Delhi which
merit our attention. The first was a demonstration against the arrest
and forced feeding of Irom Sharmila, a young Manipuri woman who has been
on a continuous hunger strike against the AFSPA, and the suspected
encounter death  of Irshad Ahmed Lone, a young Kashmiri man in Delhi.
While the first may have got some attention, the second is once again
wrapped in silence. Protests rocked the Channapora neighbourhood of
Srinagar at the manner in which his naked body showed visible marks of
torture. But the Delhi Police, and its Special Cell, thought it wise not
to display him as yet another trophy in their war against terror.
Perhaps, they thought, it would be too much to exhibit another
'encounter' in the days leading up to Afzal's execution.

In the light of this silence, it may be instructive to read a report
that appeared on the website of the Kashmir Times newspaper on October
11. It merits a lengthy quotation.

----------------------------------------------------------------------------------------------------------------
Kashmiri youth tortured, killed in Delhi
Protests rock Srinagar, custodial killing alleged
KT NEWS SERVICE : http://www.kashmirtimes.com/news4.htm

SRINAGAR, OCT 11: People took to streets and held strong demonstrations
at Channapora here today in protest against the murder of a local youth,
Irshad Ahmad Lone, an automobile engineer, in New Delhi. Police burst
smoke shells and resorted to lathi charge to disperse the demonstrators,
who retaliated by pelting stones on cops..

The bereaved family accused Delhi police of arresting Irshad and later
killing him in custody. According to them the youth had gone to New
Delhi for a job in an automobile company on September 21. He was
arrested by police there and brutally tortured. Later they were informed
by a cop from the union capital on telephone that Irshad is in an
unconscious condition in a hospital. The youth later succumbed to his
injuries.

Ali Mohammad father of Irshad said that in the morning of October 8 he
received a telephone call at his residence from New Delhi. The caller
identified himself as assistant sub inspector Ram Ji Lal of Inter-State
Bus Terminus (ISBT) police chowki Kashmiri Gate. The cop asked him
whether he knew Irshad. Ali Mohammad informed that he was his son. The
sub inspector told Ali Mohammad that his son was in an unconscious
condition at Sushrutra Trauma Centre.

Irshad's brother, Tariq Ahmad, rushed to Delhi. According to him, his
brother was in an unconscious condition with visible torture marks on
his body. Irshad's arms, throat and head had torture marks. He later
succumbed to his injuries. Tariq asked Ram Ji Lal as to what had
happened to Irshad. The cop claimed that they found Irshad in a naked
condition on a highway at ISBT Kashmiri Gate and that he was
unconscious. Asked as to how he got the telephone number of their
residence in Srinagar, Ram Ji Lal claimed that Irshad gave the number
before he lost his consciousness.

The bereaved family members said if police got their phone number from
Irshad why it did not ask him as to who had tortured him. They said
Irshad was arrested, tortured and then killed by Delhi police. Since
this morning large number of people visited the affected family and were
waiting for the body till late this evening. The body is likely to reach
here during night hours...

Senior separatist leaders Mohammad Yasin Malik, chairman JKLF, and
Shabir Ahmad Shah, president of Democratic Freedom Party (DFP) visited
the bereaved family to offer their condolences. Addressing the people
there Shah said the way Irshad was murdered it clearly indicated that
Kashmiri youth can not go to any Indian state." Their only fault is that
they are Kashmiri", he said.
Shah alleged that on one side government of India is talking about peace
and on the other side leaving no stone unturned to murder Kashmiri
youth. The DFP president was placed under house arrest. JKLF chairman
Mohammad Yasin Malik visited the residence of Irshad immediately after
his return from New Delhi. Accompanied by other party leaders, he took
part in protest demonstrations. Addressing the people, Malik strongly
condemned the killing. He asked as to what crime Irshad had committed."
Is being a Kashmiri the biggest crime", the JKLF chairman asked. He said
the slain engineer had qualified the interview for a job in Delhi on
merit. "But he was denied the job for being a Kashmiri. When he was
about to return his home, he was killed by unidentified men", Malik said. "

----------------------------------------------------------------------------------------------------------------

It appears from this report, and from the arrest of Irom Sharmila and
the police action in Delhi against those demonstrating  in solidarity
with her and against the AFSPA, that being a certain kind of Kashmiri,
or having Manipuri or identifiably 'north eastern' features is in fact a
crime in the capital of the Indian Republic. The pre-cognitive faculties
of the state know that 'people like that' are potential subversives, and
that no effort should be spared in neutralizing them. If this does
result in the occasional execution of a Mohammad Afzal Guru or the death
on the streets of Delhi of an Irshad Ahmad Lone, then it is way to small
a price to pay for the integrity and security of the Indian state.
It is said took the massacres of Algerians in Paris in 1961 for a
generation of French Intellectuals to begin to understand the actual
nature of the French colonialism in Algeria. How many Kashmiris will
need to die in Delhi's streets and in Tihar (since the number of the
dead in Kashmir does not seem to have much of an effect) for the Indian
intelligentsia to wake up to the fact that the Indian state is a
colonial state and that it acts like any occupying power would, in
Kashmir and significant parts of the North East?

In Afzal's written statement to his lawyer Sushil Kumar, posted earlier
on the Reader List (7th October, 2006) by Mahmood Farooqui, he (Afzal)
points out how Indian security officers routinely extorted money from
him because he was a 'surrendered militant' who had not become a special
police officer (SPO).

(see
http://www.humanrightskerala.com/index.php?option=com_content&task=view&id=4384&Itemid=5
for an online version of this letter)


In this sordid tale of greed, where different police officers demand
varying sums of money after torturing Afzal, lies one of the secrets of
Indian colonialism in Kashmir. Our militaries are in Kashmir, Indian
soldiers and countless Kashmiris are dying in Kashmir, also because
there is money to be made in this business. 'Terrorists' are just as
necessary a part of this equation. Because 'terrorists' become
'surrendered terrorists', and 'surrendered terrorists' are excellent
sources of cash, because if they do not pay up, they can be made to
become 'terrorists' again. Here is the time honoured police and gangster
tradition of the 'hafta' and 'vasuli' ratcheted up through the brute
force of a military occupation. This in fact is one of the sad truths of
the Indian state's presence in Kashmir, and for the sake of the triumph
of this truth, Mohammad Afzal Guru is sentenced to die.

I can only hope that APJ Abdul Kalam looks carefully at the motto
inscribed on his website, his stationery, his cutlery and his towels
before he goes to sleep each night in the next few days as he weighs the
decision about whether to assent to the clemency petition filed by
Afzal's family. Satyameva Jayate.

_____


[5]

Kashmir Times
16 October 2006
Editorial

FAIR TRIAL DEMAND JUSTIFIED
Even best of judgements susceptible to human error

That the Kashmir issue would suffer a set-back 
politically, if the president rejects the 
petition for Afzal Guru's clemency and he is 
finally sent to the gallows, is a fact that 
cannot be negated. But that alone is not the 
reason why he should not be hanged. Afzal Guru, 
one of the prime accused in the attack on 
parliament on December 13, 2001, needs to be 
pardoned and his sentence commuted to something 
less severe. Firstly, in keeping with 
international humanitarian standards, there is a 
global campaign against capital punishments. 
Secondly, evidence against him is weak, 
fabricated, based only on a selective portion of 
his statement, which may have been coerced. 
Thirdly, he is neither the mastermind of the 
attack, nor did he execute the attack; he was a 
mere facilitator, whose complicity to the crime 
is minimal. While Kashmir's political situation 
is of paramount importance, and any bid to go 
ahead with the death penalty would prove counter 
productive, deepening the alienation of the 
people and increasing their skepticism to peace 
process or words like confidence building 
measures, it would be naÐve to either totally 
reject Guru's conviction, hailing him as some 
kind of a freedom struggle icon or rallying for 
his complete innocence. Such lop-sided protests 
don't help his case; in fact they provoke a 
negative reaction as is evident. The human rights 
activists, however, may be justified in seeking a 
fair trial, on the plea that Guru's side of the 
story was never really heard, for the man. 
Everything needs investigation and adequate 
understanding before passing any kind of verdict. 
The problem in this case is that the 
investigations have made things murkier rather 
than bringing some clarity.
Any opposition to this demand seeks to rob the 
nation from knowing the truth, besides causing 
probable injustice to the man accused and 
convicted of the crime. To understand the merits 
of the 'save Guru' campaign, it may also be 
important to question the logic of the dissenting 
voices also. The argument for justifying capital 
punishment is that this would be a likely 
deterrent and will prevent terrorism. There is no 
empirical evidence to prove that capital 
punishment has proved to be a deterrent. In the 
case of militancy, the probability is much less. 
Maqbool Butt's hanging became a stoking device to 
fan the fire of Kashmiri alienation against India 
at a time when there was no armed conflict. 
Butt's death alone may not be the reason for the 
conflict, but it added to the seeds of 
discontent. One hanging produced an entire 
generation of militants or militant supporters in 
the Valley. Evidence is available not just in 
Kashmir but world wide. In the aftermath of 9/11, 
the US tyranny in Afghanistan, Iraq or elsewhere 
in the world has only ended up strengthening the 
hands of the anti-US combatants or Islamic 
radicals or the Al Qaeda, if it exists. The 
so-called wars against terror have only ended up 
sparking more terror, perpetrated by both US and 
its allies on one side and the Islamic radicals 
on the other. The theory of deterrence can be 
easily discarded. Another argument is that Guru 
already stands convicted. The Supreme Court, 
while upholding death penalty for him has 
observed, "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." While one may argue whether the 
collective consciousness of people can or cannot 
be satisfied by hanging a person in a liberal, 
democratic set up, where law is not based on the 
principle of revenge, there are several other 
facts that can be deliberated upon. And whether 
this action based on the need to 'satisfy the 
collective conscience' would be in keeping with 
the spirit of the law. The instrument of clemency 
is a legal provision provided by the law in view 
of the fact that even the best of judgements are 
susceptible to human error. Take the case of 
Kehar Singh, accused and convicted in Indira 
Gandhi assassination case. It is now widely 
recognised that Kehar Singh's sentence was based 
on weak, circumstantial evidence. Today, even the 
judge who passed his sentence questions the 
accuracy of the judgement, according to a PUDR 
report. The report also points out another 
problem with application of the death penalty : 
due to the lack of clear guidelines, judges in 
India have a great deal of discretion in capital 
cases. As a result, whether a person is hanged 
for a particular crime depends largely upon the 
views of the individual judge. In the case of 
Harbans Singh v. State of Uttar Pradesh and 
Others [(1982) 2 S.C. Cases 101], three men 
convicted of playing an equal role in committing 
a crime each met with a different fate, depending 
on which Supreme Court bench heard their appeal. 
While the death sentences of two of them were 
commuted, the third was executed. Such arbitrary 
and unequal treatment of equally situated persons 
violates Article 14 of the Indian Constitution, 
the report aptly remarks. There are several 
parallels that can be drawn between Guru's case 
and Kehar Singh's, since role of both has been 
that of a facilitator. Certainly, then two wrongs 
do not make a right. Afzal Guru's petition for 
clemency and fair trial is lying before the 
president and it is hoped that wisdom prevails 
and justice triumphs. It is also hoped that the 
latest Supreme Court verdict in calling for a 
judicial review before giving the nod for 
clemency, should not be made a pretext to hamper 
Guru's case. The verdict is based on the premise 
that decisions on clemency cannot be subject to 
whims of certain individuals. This cannot and 
should not be misused to deny justice.

____


[6]

Economic and Political Weekly
September 30, 2006
Letters

MOHAMMED AFZAL'S  HANGING

People's Union for Democratic Rights (PUDR) 
strongly condemns  the reported decision taken to 
hang

Mohammed Afzal on October 20, 2006. Not only does 
PUDR condemn the death penalty in principle, but 
in this case, we have followed the Parliament 
attack case closely from the time it was 
committed to trial under Prevention of Terrorism 
Act (POTA) and had  observed the denial of fair 
trial in this particular case. PUDR's report, A 
Trial of Errors,  noted, "It is perhaps inherent 
in a trial under POTA that the accused is 
disabled to a point where rules of evidence 
become pliable and conjecture can take over and 
death sentences  become easy to award". 
Unfortunately, our apprehensions have come true. 
Besides lack of fair trial, it is well known that 
Mohammed Afzal did not have access to proper 
legal aid during the course of trial. Therefore, 
the punishment of death penalty to
MohammedAfzal is unfair and must be commuted.

DEEPIKA TANDON
Secretary, People's Union for
Democratic Rights,
New Delhi



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Buzz on the perils of fundamentalist politics, on
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