SACW #2 | Nov. 18-19, 2006 | Who was behind 13 Dec 2001 | Life not death penalty for Afzal Guru

[Harsh Kapoor]

South Asia Citizens Wire - Pack 2 | November 
18-19, 2006 | Dispatch No. 2318  - Year 8

Enquire into who was behind the 2001 attack on 
the Indian Parliament, that nearly provoked war 
between India and Pakistan - Dont make Afzal Guru 
a Scapegoat.

[1]  India:
    -  Letter to the India's president - Sign on Petition
    -  Letter to Indian National Human Rights Commission
[2]  The death sentence for Mohammed Afzal Guru 
and the future of barbarism (Aseem Srivastava)
[3]  Taking a Blunderbuss to a Mouse: Some 
Observations on the Mohd. Afzal Case (Mukul Dube)
[4]  India:  When the Noose Is Doubly Good News (Sri Raman)
[5]  India: Life, not death: Why Afzal mustn't hang  (Meenakshi  Ganguly)

____


[1]  


1) Letter to the president.

its at:

<javascript:ol('http://www.petitiononline.com/ekta1/petition.html');>http://www.petitiononline.com/ekta1/petition.html

2) Letter to Indian National Human Rights Commission. Reproduced below.

We are asking a select group of invited Indian 
and international personalities to sign the 
letters. Both the letters will be handed in 
personally in New Delhi. Would you please 
consider signing both the letters? [send your 
signatures to:  <admin at justiceforafzalguru.org> ]


Letter to NHRC:

November 12, 2006
Hon'ble Dr. Justice A.S. Anand
Chairperson, National Human Rights Commission,
Faridkot House,
Copernicus Marg,
New Delhi 110001

Dear Sir,
We are writing to request you to take action 
according to your constitutional powers in the 
case of Mohammad Afzal Guru of Sopore, Kashmir, 
to prevent a serious miscarriage of justice. Mr. 
Guru was sentenced to death in the Parliament 
attack case by the  trial court on 18 December 
2002 and this sentence was upheld through appeals 
in the Delhi High Court and the Supreme Court. 
Mr. Guru has appealed to the President of India 
for clemency and is currently awaiting a decision.
It is clear that the trial process was flawed and 
highly unfair, for the following reasons.
1. Mr. Guru was not provided a lawyer at the crucial trial stage.
2. The Special Cell of the Delhi Police, which 
was placed in charge of investigating the case, 
used the media to brand Mr. Guru as guilty even 
before the trial. He was produced before the 
media and forced to “confess”. Subsequent 
statements by a media person present at the event 
that Mr. Guru appeared to be in a highly 
disturbed frame of mind were ignored by the 
courts. The media trial, which included a film 
broadcast on  Zee TV, previewed and approved by 
the then Prime Minister, was clearly a factor in 
prejudicing the outcome of the trial.
3. The confession made by Mr. Guru to the police 
while in custody was under duress. Mr. Guru was 
tortured and his family were threatened. When he 
was produced before a magistrate, Mr. Guru 
retracted his confession, yet the evidence 
therein was used as the basis for his conviction 
and sentencing.
4. The Delhi High Court acknowledged that the 
investigating agency fabricated evidence against 
the accused, yet upheld the verdict.
5. The Supreme Court rejected Mr. Guru's 
confession on account of the procedural 
irregularities in obtaining it, yet upheld the 
death sentence based on nothing more than 
inadequate circumstantial evidence.
Mr. Guru’s trial does not meet international 
standards for a fair trial: he was denied due 
process, legal counsel and the presumption of 
innocent until proven guilty. These violate 
articles 7, 10, 14, and 17 of the International 
Covenant on Civil and Political Rights. India 
signed and ratified the International Convention 
on Civil and Political Rights in 1979 and is 
obliged to protect the rights guaranteed therein.
It is also pertinent that under international 
human rights standards people charged with crimes 
punishable by death are entitled to the 
observance of strictest fair trial guarantees in 
view of the irreversible and extreme nature of 
the penalty. Carrying out the death penalty upon 
conclusion of a trial in which the provisions of 
International Covenant on Civil and Political 
Rights have not been respected, which can no 
longer be remedied by appeal, would be a serious 
reflection on the Indian judicial system.
All of these circumstances point to the need for 
a new trial for Mr. Guru, in order that justice 
may be done. We urge you to exercise your mandate 
to protect human rights and the rule of law, to 
obtain a new trial for Mr. Guru. Further, in 
light of the disclosures of fabricated evidence 
by the investigation agency which have been 
clearly acknowledged by the higher courts, and of 
the manner in which Mr. Guru was tortured and 
manipulated by the Special Task Force, we also 
urge you to ask for a judicial enquiry to find 
out the real truths behind the attack on the 
Indian Parliament.
Sincerely,
The undersigned


_____


[2]

www.sacw.net | 16 November 2006
http://www.sacw.net/hrights/aseem16Nov06.html

We must leave alone what is not in our power to change
THE DEATH SENTENCE FOR MOHAMMED AFZAL GURU AND THE FUTURE OF BARBARISM

by Aseem Srivastava

"The vision of justice is God's delight alone."
							- Artur Rimbaud

"It is not the eternal in man that kills. It is 
not the eternal in man that dies."
		   			- The Upanishads


Our moral exhaustion today

A soldier, in fidelity to the orders of his 
commander, the peer pressure of his fighting 
mates, and the despairing heat of the moment, 
shoots down innocents. The realization hits soon 
enough, and yet too late. Because, on impulse, he 
is led to carry out further atrocities, as if 
they would absolve him of his first crime. This 
happens all too often in wars, though such facts 
- lined as they are with psychological subtleties 
- are not easy to record.

When you are "programmed to kill" and the 
efficient weaponry to implement orders is at 
hand, killing becomes a self-perpetuating affair. 
Once the thick first line is crossed the ones 
that follow are too thin and invisible to meet 
the eye of conscience. Only the other side can 
perceive the horror and feel the pain and trauma. 
And, often, seek revenge.

What does one say? What does one do? So often 
nowadays it appears that we quickly reach the 
point where there is little left to say, almost 
nothing that can be done, plenty to undo and, 
most ominous of all, the lurking risk of further 
wrongs piling up, of hell getting ever more 
hellish and of the world moving further down the 
precipitous slope of barbarism from the tragic to 
the farcical. There may have been times and 
places in the human past when violence might 
actually have meant something. Howsoever things 
may have stood in the past, what is on offer 
today is mostly a nihilistic spectacle of the 
absurd, a cowardly martial routine which only 
awakens our conscience when we ourselves or one 
of our own are the aggrieved party.
Every child knows that two wrongs don't make a 
right. But every adult seems to forget it. 
Revenge is not the same as justice, no matter 
that some jurists and moral philosophers have 
lavished plenty of ink on tomes about retributive 
justice. However, only the other day, the Dalai 
Lama told Japanese reporters "the death penalty 
is said to fulfil a preventive function, yet it 
is clearly a form of revenge." "However horrible 
an act a person may have committed, everyone has 
the potential to improve and correct himself", he 
said.
Revenge has no future - because it thinks of 
none. It is driven by the past and appears to be 
innocent of the savage demands that a wounded 
conscience may impose later on. In fact, in the 
shadow of revenge, justifications or even further 
wrongs must almost inevitably follow, precisely 
to deceive oneself, above all, about the absence 
of the commands of conscience, and of the prior 
wrongness of one's deeds.


Can we escape moral illusions?

The moral fantasies that so many of us live - and 
what is more important for us than to persist in 
maintaining our moral appearances! - become 
necessary illusions for our day-to-day survival, 
indispensable parts of the psychological kit of 
our hardened capacity to live with ourselves. 
Short of an unlikely collective expiation on all 
sides, there is no reprieve from this 
unacknowledged nightmare. Hypocrisy is inevitable 
and becomes, as Oscar Wilde was led to remark, 
"the debt that vice pays to virtue."
Perhaps, as some philosophers have pointed out, 
therein lies hope: that we must be, in some 
ultimate remote corner of our lost hearts, after 
all, good by nature. Otherwise it is a bit 
difficult to understand the trouble that we take 
to not merely appear good before others, but to 
want to feel good about ourselves even in the 
privacy of our souls, after having done some 
wrong or having been complicit in one. Our 
misdeeds trouble us in some mysterious spot of 
the soul, hence the need to justify and, if at 
all possible, overlook or forget. Call it 
preferred "blindsight" if you will.

It is no easy task to be a good human being. 
Strange that we seem to so readily take it as an 
article of faith that we are, by definition, and 
by the mere virtue of our existence, good. The 
corollary that others are, pari passu, evil, 
almost follows as a moral reflex that preserves 
our deluded self-image, justifying our own evil 
through the logic of moral sloth and practical 
convenience. Thus, unsurprisingly, history knows 
more blood to have been shed in the name of the 
good than for evil. Moral self-righteousness is a 
lot harder for us to recognize in ourselves and 
uproot than is plain self-interest.

The hard thing is to know oneself to be morally 
imperfect and to abide the sight of one's 
imperfection without succumbing to the tempting 
impulse to "run away" from one's past by actually 
repeating the misdeeds, thereby perpetuating the 
"rightness" of one's actions in one's moral 
self-image. Human beings appear to find it very 
difficult to neither justify nor condemn their 
misdeeds. Memory and habit are the devil's 
accomplices here. Moral reasoning - and the faith 
and patience that command it - are so easily 
enfeebled by that devastating logic of the heart 
which seeks to wash one's wrongdoings in a 
cleansing ritual of lies, illusions and 
self-deceit, even shedding further blood if 
necessary and contributing all along to the 
social edifice of mendacity.

A forgotten  story, worth recalling

Setting aside the terrible memories of the past, 
and the nasty realities of the present, there is 
an urgent need today to rediscover the liberating 
power of forgiveness and the merits of mercy. One 
shining - and rarely remembered - example of this 
is provided by South Africa under Nelson 
Mandela's leadership in the mid-1990s. As long as 
the wrongdoers from the Apartheid era were 
willing to publicly and candidly confess their 
crimes, they were offered amnesty by the Truth 
and Reconciliation Commission. This was not a 
perfect solution to a problem of breathtaking 
moral complexity. At the hands of the White 
Apartheid regime, Blacks in South Africa had 
suffered over decades and centuries every 
inhumanity and humiliation imaginable - from 
judicial torture, murder and rape to bloody 
massacres. Many, such as Steve Biko's family, 
felt betrayed by the general amnesty offered to 
so many of the killers and rapists. Apologies 
from many privileged white families, such as De 
Klerk's were qualified. Others, such as 
P.W.Botha, did not even go that far. All this had 
predictable ripples on the other side.

However, Mandela's rejection of retributive 
justice was emphatic and his setting aside of 
bitterness was an unparalleled act of mature 
statesmanship, seen rarely in history. It saved 
humanity from what would have been a certain and 
unforgettable bloodbath. Given how hard it is for 
justice to be done once vengeful atrocities of 
this scale are unleashed, and how tempting it 
must have been to allow them to take place 
(witness Mugabe) Mandela's was an act of 
astonishing moral foresight.

A permanent paradox

If you kill one man or woman you are a murderer. 
If you do so again, you are a murderer twice 
over. You kill 10 and you are a serial killer. 
For all these crimes the law lays down due 
punishments. But if you are responsible for the 
killing of a thousand or a million people the 
crime is rarely acknowledged, let alone punished. 
(Notice the reluctance in Turkey to allow 
discussion of the Armenian genocide or in the US 
of the genocide of native populations.) It 
appears that somewhere between the number of 10 
and a thousand, murder mutates into a moral 
imperative. States are often founded on the 
bloodshed. The rule of law is thenceforth 
established and all that lies behind and beneath 
is forgotten - without any public confessions or 
reconciliation with the wounded. Little wonder 
that history repeats itself with disturbing 
regularity.

Mandela's searing insight was to recognize the 
futility of revenge for historical injustices on 
a national scale. Humanity is able to punish only 
the small and petty crimes. The truly big ones 
elude our moral eye and, given our frequent 
penchant for the pragmatic - of sharing in the 
spoils of war, conquest and great injustice - 
ever so often become the basis of states and 
societies that are seen to be, ironically, 
legitimate.

Mandela's actions demonstrated humanity's utter 
helplessness in the matter of delivering precise 
justice in matters that truly matter. Where even 
the best of men have humbly accepted the limits 
to the justice they can offer, lesser men ought 
not to try. There is a lesson here for all those 
states and governments and terror outfits so keen 
to teach the other side a lesson.

"You never teach life anything", Gabriel Garcia 
Marquez has written. Punishment only hardens 
criminals and has never stopped new ones from 
undertaking similar ventures in the future. As 
has been noted by some philosophers, that evil 
exists in the world is undeniable. But that the 
existence of evil is itself an evil can be 
disputed. Further, that it is possible to 
eliminate evil from the world - without oneself 
staring into the same darkness - is a lethal 
illusion that has led us to our present global 
predicament. If we continue to take moral shelter 
in the alleged crimes of others, almost 
instinctively overlooking our own, we will only 
continue to delude ourselves about our own 
putative goodness and in the end there will be no 
shelter from facts.

There is still time

All this is far from irrelevant to Afzal Guru's 
death sentence by the Indian judiciary. As has 
been pointed out by some commentators, there are 
many directions in which the circumstantial 
evidence points that have not been investigated 
at all, not to mention the repeated provocations 
and assault on human rights for which Indian 
military and paramilitary forces in Kashmir are 
responsible. Under such conditions, to carry out 
the sentence would be an act of ignorant haste 
with predictable repercussions in Kashmir. Even 
if Afzal's guilt is established, the Indian state 
must find the maturity to learn from countries 
like South Africa - which abolished capital 
punishment 11 years ago - rather than the US, 
where so many states, including Texas, send 
criminals to the gallows every year.

The use of force is in fashion today. We have 
become too morally lazy to think before we act - 
especially when we wield power. States and 
governments so easily forget the imitative 
repercussions that their organized, visible and 
"legitimate" violence has on those restless, 
disgruntled or aggrieved groups who might be keen 
to resort to violence to resolve human conflicts. 
When killing is used - often in deep ignorance of 
facts, thus even more unjustly - by the state, it 
legitimizes the use of violence in the 
administration of justice. Terror groups then do 
not have to restrain themselves and exercise 
their moral imagination to find peaceful 
approaches to their grievances. They take the law 
into their own hands. They are only too happy to 
put their fingers even closer to the trigger. 
Recent observations from the experience of the US 
in Iraq, of Israel in Palestine and Lebanon, of 
the Indian state itself in Kashmir come readily 
to mind.

The methods of Gandhi, Martin Luther King, and 
Nelson Mandela evoke interest even today 
precisely because they provoked ethical thought 
by the dignity and efficacy of the actions that 
they carried out and inspired. If the movements 
they represented used excessive violence they 
would not only have been readily suppressed by 
their much more powerful enemies, but also been 
forgotten by now. The secret of their success was 
their principled eschewal of the methods of the 
powerful.

Mandela opened the door to a moral and spiritual 
universe whose existence was not even suspected. 
It shows us that there is indeed a vision which 
transcends human conflicts and which helps us 
accept with fortitude and grace the inerasable 
facts of the past. It sets human life as it is 
outwardly lived on this planet in its proper - 
puny -perspective. It humbles us into recognition 
of our own moral limits. What we cannot cure we 
must endure. We cannot pretend to know all there 
might be to know about the matter of good and 
evil. Our knowledge is limited, our ignorance 
infinite. Hence public remembrance and 
forgiveness may be our best bet for living 
peaceful, even satisfying, lives.

Mandela is reported to have said "for all people 
who have found themselves in the position of 
being in jail and trying to transform society, 
forgiveness is natural because you have no time 
to be retaliative." He also said "one of the most 
difficult things is not to change society - but 
to change yourself." Mercy alone liberates us 
from the shackles of revenge and false justice.

Indian leaders ought to regard this truth in 
their deliberations over the fate of Mohammed 
Afzal Guru.

Aseem Shrivastava is an independent writer. He 
can be reached at aseem62 at yahoo.com



-----

[3]

www.sacw.net  | 16 November 2006
http://www.sacw.net/hrights/mukulD16Nov06.html

November 15, 2006

TAKING A BLUNDERBUSS TO A MOUSE:
SOME OBSERVATIONS ON THE MOHD. AFZAL CASE

by Mukul Dube

[This article in Mainstream and on Counterpunch on 11 November 2006.]

According to the formula, the death penalty is 
awarded only in the "rarest of rare" cases. There 
must be something about the crime or the criminal 
which causes the judge to decide that the penalty 
of imprisonment for life will be insufficient. 
The crime must be grave or heinous enough to 
warrant the extreme penalty, or else the criminal 
must be considered entirely without hope of 
redemption.
Criminal. It goes without saying that the person 
sentenced to death must have been shown 
conclusively to have committed whatever was the 
crime. It goes without saying that that person's 
guilt must have been established, to quote 
another formula, "beyond the shadow of a doubt."

Was Mohd. Afzal's guilt in the "Parliament attack 
case" established in this conclusive way? Here I 
shall look only at the fact that the judgment 
states that his guilt was established on the 
basis of circumstantial evidence.

By its very nature, circumstantial evidence is a 
weak form of evidence. It involves the putting 
together of two and two and does not depend on 
the sensory perceptions of any person. 
Circumstantial evidence says not "he did it" but 
"in view of this, this, and this, I think he must 
have done it." It can be called deduction, it can 
be called conjecture, it can be called jumping to 
a conclusion.  Certainly it is not based on 
something seen, heard, smelt, touched or tasted.

In a lay person, the juxtaposition of a supposed 
crime deemed to be of the "rarest of rare" kind 
and an inherently weak form of evidence causes 
perplexity and unease. It makes one think of stud 
bulls running around a racing track meant for 
greyhounds, or of a 5 lb. hammer used in driving 
home a screw with a Phillips head.

There are those among Christians who hold that 
the principle of lex talion ("an eye for an eye") 
was divinely ordained. However, this principle, 
which was long ago abandoned by most civilised 
societies, demands the strictest proof, as we see.
"On the evidence of two witnesses or of three 
witnesses he that is to die shall be put to 
death; a person shall not be put to death on the 
evidence of one witness..." (Deuteronomy 17:6,7). 
And here is Jehovah in the Old Testament: "...but 
no person shall be put to death on the testimony 
of one witness." (Numbers 35:30)

Judaism recognises the death penalty, but it 
places strict conditions. "For a Jew to be 
convicted by a Jewish court, two eyewitnesses 
must have seen the perpetrator about to commit 
the crime and warned him of the potential 
penalty. The murderer must verbally answer that 
he chooses to proceed anyway. (For a non-Jew, 
only one witness is required and no verbal 
warning.)" (_Jewish Journal of Greater Los 
Angeles_, 10 March 2000)

How many eye-witnesses testified against Mohd. 
Afzal in the "Parliament attack case"? One half, 
perhaps? An eighth, or a sixtieth? Less than one 
witness, that is certain.

The judgment of the Supreme Court was an attempt 
to produce a poetically elegant piece of prose, 
never mind the effect of much unwanted use of the 
definite article. "Afzal is characterised as a 
'menace to the society', whose 'life should 
become extinct' to satisfy 'the collective 
conscience of the society'" (Nirmalangshu 
Mukherji, quoting from the judgment in "Should 
Mohammad Afzal Die?", Economic and Political 
Weekly, 7-13 October 2006).
What is conscience? My understanding of my own 
conscience has always been that it is what 
prevents me from shop-lifting, from kicking 
puppies, from bursting fire-crackers at midnight. 
It is also the force which makes me try to assist 
anyone who seems to be in distress.

The "collective conscience of the society" seems 
an altogether different phenomenon. It does not 
prevent "the society" from doing wrong: instead, 
it impels it to do that which so many consider 
wrong but which it transforms into right-if we 
are to go by the specious reasoning of the 
judgment-by reference to a man who is described 
as a "menace to the society," etc.
Other than the Supreme Court, which waved it 
about to justify its award of the death penalty 
to Mohd. Afzal, who knew of this "collective 
conscience of the society"? Did "the society" 
itself know of it? Were the people of, say, 
Kashmir and the North-East among the possessors 
of this unusual "collective conscience"? Just who 
are those who make up "the society"? I am 
compelled to conclude that they are those who 
swallow the police' version of facts dished out 
by an obliging and singularly uncritical media. I 
shall not repeat what so many have said about the 
impossibility of Mohd. Afzal's getting a fair 
trial, given the sustained glare of one-sided 
publicity his case had received.

I have argued elsewhere ("S.A.R. Geelani and the 
Dance of Holy Justice," Mainstream, 3 September 
2005) that, in setting free Geelani with a face 
blackened for life, the Supreme Court gave the 
media what they wanted. In the case of Mohd. 
Afzal, the Supreme Court enabled the media to 
sate the public thirst for blood which they had 
created while co-operating with another arm of 
the justice machinery, the police. With the wheel 
of unreason moving in the only way in which 
wheels can move, we search in vain for the 
distinction between administration and judiciary.

As a side light, there was a comedy of errors in 
which the errors were not those which the chief 
actor described as such. Colin Gonsalves, 
advocate for Mohd. Afzal at a late stage, has 
insisted again and again that his 250-page 
submissions-their length is stated each time-did 
not contain the plea that his client, whose guilt 
would implicitly have been accepted, be executed 
by lethal injection rather than by hanging. 
Indeed Mr. Gonsalves' submissions did not contain 
that plea; but he forgets that he filed a 
supplementary affidavit-which bore the signature 
of Mohd.  Afzal who, when he signed it, did not 
know what it contained - - which described lethal 
injection as a method of execution much to be 
preferred to hanging because it was humane, not 
painful, etc. Why should a man sign such an 
affidavit who knew that above his head hung the 
death penalty? In the context of larger 
philosophical considerations, perhaps? Mr. 
Gonsalves, otherwise hardly tongue-tied, does not 
say.

There is something else, however, which eminently 
credible people say who were present in court at 
the time. It is that Mr. Gonsalves, in his oral 
submissions, clearly asked that his client Mohd. 
Afzal be put to death not by hanging but by 
lethal injection. Unlike written submissions and 
supplementary affidavits, oral submissions do not 
form part of the record unless the court refers 
to them in its judgment.  The court did not refer 
to them in this instance, possibly because of 
their absurd nature: but, I repeat, those who say 
that the defence lawyer's spoken words included 
this admission of his client's guilt-and 
apparently the foreknowledge that the sentence to 
be handed down would be that of death-are 
credible people.

The efforts to have Mohd. Afzal's death sentence 
commuted have attracted the attention of the 
media, but in a strange and perhaps predictable 
way: they have transformed the matter into a 
debate for and against capital punishment. 
Whether or not Mohd. Afzal received justice is 
not of any interest to them. The oak is all, the 
acorn forgotten. Other than the talk about Colin 
Gonsalves and lethal injections-of which Mr. 
Gonsalves seems to have become aware rather more 
than a year after I heard it-there is the 
question of whether or not the trial judge said 
to Mohd. Afzal, in his chamber and in the 
presence of Seema Gulati, then amicus curiae, 
that he should not worry because he was "our man. 
' This must remain forever a rumour, since no one 
can be expected to say for the record that it 
happened. If it did happen, though, once again no 
difference remains between judiciary and 
administration.
Mohd. Afzal, we might recall, is a former 
militant who, since his surrender, was in close 
and constant contact with the "forces of law and 
order." Lamb to the slaughter? One man at least 
will be hanged: forget that the genesis of the 
plot to blow up Parliament has not been and 
cannot be explicated. Do not ask if there even 
was a plot. On the basis of circumstantial 
evidence, with no independent witness or 
corroboration, the Supreme Court has passed 
judgment in order to satisfy its constructed 
"collective conscience of the society." A fine 
conscience, one which bays for blood.

The strongest argument against the death penalty 
is the imperfections of systems of justice. For 
example, the Stanford Law Review uncovered 350 
20th-century cases in the U.S. in which "clearly 
innocent" people had been sentenced to death. 
That 75 of these cases dated since 1970 shows an 
improvement over time, it could be argued.

Besides, execution has by no means been shown to 
be a deterrent. Now and then, murderers-that is, 
those convicted of murder-are hanged and the 
people are made to know of this. Yet murders 
continue to be committed. I do not know if anyone 
has tabulated these figures for a year or for a 
decade or two: on the one side, the numbers of 
people hanged for having committed murder; and on 
the other, the numbers of murders committed in 
the weeks and months following the hangings. When 
many guilty people get away scot free, the 
miscarriage of justice involved in hanging an 
innocent becomes all the more appalling.

I shall probably never decide if I am absolutely 
for or absolutely against the death penalty. On 
the one hand are the Modis, for whom a sentence 
of being torn asunder by horses would be horribly 
mild: and on the other are the Afzals, who are 
pushed towards the gallows although against them 
proof positive exists by no stretch of the 
imagination.

In our land of justice, the Afzals are tried, 
never mind that for most of their trials they 
have no lawyers to speak for them: while the 
Modis do not even have charges framed against 
them. Our socially conscious, responsible, etc., 
media find it convenient and safe to debate the 
death penalty in the abstract.

A friend suggested another way of looking at this 
affair. She said that the "attack on Parliament" 
had been offered as the reason for the immediate 
mobilisation of the armed forces on a scale 
unprecedented in peace time; and that many hold 
that the two countries were brought to the brink 
of a nuclear war. Now Pakistan never accepted 
that it had done anything wrong or that it had 
looked the other way while its men did wrong and 
its territory was misused. For its part, India 
never presented evidence so convincing as to put 
Pakistan squarely in the dock. Pakistan has only 
expressed a general regret, which is very 
different from saying "sorry." That is, war-like 
India ("You tried to blow up our Parliament: we 
will blow up your country") could not extract 
even an apology.

It was to justify that inordinately expensive and 
dangerous "reaction", my friend said, that Mohd. 
Afzal was sentenced to be put to death. Blood 
alone could serve as the ink on the rubber stamp 
which would close the file in a satisfactory and 
satisfying way; and Mohd. Afzal was State 
property, a readily available resource, an 
expendable pawn well placed.


_____


[4]

truthout.org
9 November 2006

WHEN THE NOOSE IS DOUBLY GOOD NEWS
by J. Sri Raman

     Within a fortnight, India is witnessing 
furious debates over two death sentences. And no 
prizes for guessing the political identity of 
those who see the noose as positive news in both 
the cases.

     The far right is baying like a lynch mob for 
the hanging of Afzal Guru, whom the Supreme Court 
of India sentenced to death for a role of 
"conspiracy" in the still largely mysterious 
attack on India's Parliament in December 2001. A 
broader coalition of forces has backed the death 
sentence for deposed Iraqi leader Saddam Hussein.

     Afzal has appealed for presidential 
"clemency," under a statutory provision that can 
save him still. The noose alone can save the 
nation, counters the Bharatiya Janata Party 
(BJP), the political front of the fascist phalanx 
known as the "parivar" or the "family." The party 
wants Afzal killed before any clemency can be 
considered.

     Supporters of the sentence on Saddam have not 
spoken up against an appeal against the verdict 
being allowed (even if few see this as anything 
but a formality). But they are sternly 
disapproving of any effort by New Delhi even to 
appear equivocal or sound embarrassed about the 
verdict of the Washington-installed court.

     The case of the anti-Afzal campaigners is 
clear. The attack on Parliament may be an untold 
story in many respects, though the then BJP-led 
government trotted it out as an excuse for taking 
India to the brink of a nuclear war with its 
neighbor. No member of either of the legislative 
chambers may have suffered bodily harm, though 
some poor security personnel were killed. But, 
according to the official version, Islamic 
terrorists from Kashmir staged the attack with 
the help of Pakistan. So, Afzal cannot escape the 
death penalty, though justice continues to evade 
thousands of victims of the Gujarat pogrom of 
early 2002, which the party presided over.

     The case of the anti-Saddam campaigners is 
equally clear, though it may appear slightly more 
complex. They may concede that some questions of 
international law can possibly be raised in 
relation to the case and the verdict. Their main 
point, however, is that such questions should 
make no difference to New Delhi - especially when 
that all-important US-India nuclear "deal" is 
involved.

     It took very little to provoke them on this 
issue. Just how little can be judged from the coy 
and convoluted statement of India's external 
affairs minister, Pranab Mukherjee. "Such 
life-and-death decisions," he said, "require 
credible, due process of law, which does not 
appear to be victor's justice and is acceptable 
to the people of Iraq as well as the 
international community." He added: "We hope that 
this verdict will not add to the suffering of the 
people of Iraq."

     For good measure, the ruling Congress Party, 
which Mukherjee represents, rejected the Left 
demand for New Delhi's "active intervention to 
get the sentence rescinded" and condemnation of 
the "travesty of justice" by a court that 
represented "occupation forces." The party's plea 
was that the appeal provision made such steps 
utterly unwarranted.

     All this was not good enough for those firmly 
of the opinion that it just was bad form for 
Prime Minister Manmohan Singh's government to 
voice such reservations about the wisdom of the 
Bush regime and its accredited representatives in 
Baghdad.

     From one particular editorial pulpit, known 
for pious advocacy of the "strategic alliance" 
and paramount importance of the nuclear "deal," 
came the exhortation: "It is possible to be 
circumspect about at least some parts of the 
legal architecture that surrounds the Saddam 
Hussein verdict and yet keep the necessarily 
hard-headed calculations of national interest in 
mind. Which is to say the UPA government (United 
Progressive Alliance) could have probably 
achieved a better balance between its 
reservations about the verdict and India's 
strategic goals in Iraq and the surrounding 
areas."

     Security expert C. Raja Mohan, a staunch 
defender of Singh on the "deal," sounded 
displeased. "Irrespective of its intent, the 
Indian reaction, issued in the name of External 
Affairs Minister Pranab Mukherjee is bound to 
irritate Washington, Baghdad and Tehran in one 
stroke." Striking is the show of concern for the 
sensitivities of Iran, which Mohan and 
like-minded have been denouncing as a country 
undeserving of India's support on the nuclear 
issue.

     The BJP's top leadership has avoided sounding 
as bloodthirsty on this issue as on Afzal. The 
party spokesman, however, conveyed implicit 
disapproval of Mukherjee's statement by 
describing the sentence on Saddam as "an internal 
affair of Iraq," as though it had nothing to do 
at all with that country's invasion and 
occupation by foreign forces.

     At lower levels, however, the party was more 
open in its pro-noose stand on both the issues. 
Just one example is the reported statement by a 
leader of the party's student wing, the Akhil 
Bharatiya Vidyarthi Parishad (ABVP), in New 
Delhi's politically alive Jawaharlal Nehru 
University (JNU). "We are happy," reads the 
statement, "that Saddam will be hanged to death 
and we demand that Mohammed Afzal Guru ... should 
also be hanged soon."

     To the rest of the world, the two issues may 
not readily appear to be related. To the common 
people of India, however, the connection is 
obvious.


_____


[5] 

Asian Age
7 November 2006

LIFE, NOT DEATH: WHY AFZAL MUSTN'T HANG

by Meenakshi  Ganguly

Mohammad Afzal Guru is supposed to hang. His 
conviction for his role in the  conspiracy to 
attack Indian Parliament in 2001 was upheld by 
the Supreme Court  in August. He was deemed 
guilty enough to receive the "rarest of rare" 
sentences: the death penalty. The hanging was set 
for October 20, but was  delayed as a mercy 
petition awaits the decision of the government 
and,  eventually, President A.P.J. Abdul Kalam.

  Much has been said and written about this case. 
Most Kashmiri leaders say the  hanging will 
adversely affect the ongoing peace process. One 
of India's leading  magazines published an essay 
by Booker Prize winner Arundhati Roy arguing 
against the sentence. Its rival magazine ran an 
opinion poll of urban Indians  that found 78 per 
cent opposed "liberal rhetoric" such as hers, and 
believed  Afzal should be hanged. In fact, some 
right-wing Hindu groups even held a mock  hanging 
to support this claim.

  Some say that Mohammad Afzal was able to appeal 
his conviction and therefore  has no reason to 
complain. The legal system has worked. Others say 
that the  guilty verdict was based on 
unconvincing circumstantial evidence. Activists 
also  point out that he did not receive proper 
legal counsel.

  Let's be clear at the outset. Human Rights Watch 
unequivocally opposes the  death penalty. Guilty 
or not, we believe that neither Mohammad Afzal 
Guru, nor  Priyadarshini Mattoo's killer, Santosh 
Kumar Singh, nor Saddam Hussein, nor  anyone 
else, should be executed. Taking the life of a 
human being is inherently  cruel, and as a form 
of punishment is unique in its irreversibility. 
The  intrinsic fallibility of all criminal 
justice systems assures that even when  there is 
a fair judicial process, innocent persons will 
still be executed. On a  practical level, there 
is no evidence that it is an effective deterrent.

  The sentencing of Mohammad Afzal also represents 
a different and perhaps  deeper problem in India. 
As a former militant, at the very least it seems 
clear  that Mohammad Afzal once sympathised with 
Kashmir militancy. Militants blow up  markets and 
kill Indian soldiers and civilians. In the common 
Indian narrative,  Indian soldiers are the good 
guys, and militants are the "bad guys." Bad guys 
deserve to be punished.

  Yet the backbone of any proper legal system is 
that individuals who commit  crimes should be 
prosecuted and punished for their specific 
actions, not for who  they supposedly represent. 
For many in India's powerful middle class with 
little  real understanding of the complexities of 
Kashmir, Kashmiris have become a  distant 
"other," interchangeable people who need not be 
considered as  individuals. Thus, whether 
Mohammad Afzal was a key figure in the attack 
deserving a long criminal sentence or just a 
marginal figure whose actions merit  a much 
lesser punishment is of little concern. This 
needs to change if there is  any chance of a 
resolution of the conflict or, in the meantime, 
making the  justice system work in a fair and 
impartial manner.

  Recently, Human Rights Watch became the first 
international organisation to  release a human 
rights report ("Everyone Lives in Fear: Patterns 
of Impunity in  Jammu and Kashmir") in Srinagar. 
We noted that in Jammu and Kashmir, police and 
soldiers have been given extraordinary legal 
powers to tackle a violent armed  conflict. Any 
such law is based on trust that those thus 
empowered will not  abuse it. Unfortunately, our 
research found that this trust has been violated, 
and that abuse is common practice.

  In Kashmir a person can be lawfully arrested for 
committing or planning  offences against national 
security, such as harbouring militants, hiding 
weapons  or planning an attack. But the 
extraordinary powers that the state provides to 
its security forces also encourage abuses. To 
take but one example, there are so  many weapons 
in a conflict area like J&K that to plant 
evidence such as a  grenade or a gun is all too 
easy - and presents a credible story that is hard 
to  rebut.

  Many Kashmiris have to supply food or shelter to 
militants at the point of a  gun. Yet, the Public 
Safety Act can be used, or abused, to put such 
people in  detention for years, held without 
trial, because the state never has to prove 
their guilt. Often the basis of detention is 
highly unreliable information  provided during 
the coerced confession of another, usually 
through torture or  the threat of torture.

  Sadly, Kashmiri lawyers are grateful when a 
person turns up in detention. Not  because they 
can make some extra money from another client, 
but because it means  the government has publicly 
admitted that it has the person in custody, and 
the  detainee's life, therefore, becomes more 
secure. Those who do not turn up in an  official 
place of detention frequently "disappear" or turn 
up dead, killed in a  faked armed encounter.

  Both the government of India and much of the 
population are aware that this  happens. There is 
however, a widespread wink and nod. Some may 
believe that "bad  guys" deserve to die and 
inquire no further. Government officials explain 
privately that there is little option to use such 
measures because the legal and  judicial process 
is flawed. It takes too long and it is too hard 
to secure a  conviction, they say. Witnesses, 
terrified of reprisals from the militants, 
refuse to testify against them. Detaining 
militants carries the risk that their  comrades 
will organise jail breaks, abductions or plane 
hijackings to gain their  release. So the 
security forces often murder those they believe 
to be guilty. A  police report is lodged 
describing an armed encounter or an escape 
attempt.

  The Armed Forces Special Powers Act, used when 
troops are deployed to tackle  internal 
insurgencies, has been widely criticised because 
it allows enormous  powers to arrest and shoot to 
kill. The Act has also been used to protect 
military personnel responsible for abuses, 
leading to widespread impunity for  human rights 
abuses. For example, five days after 36 Sikhs 
were killed in  Chattisinghpora in March 2000, 
the Army and police claimed to have killed the 
militants that were responsible. The Central 
Bureau of Investigation discovered  that the Army 
had lied, that the so-called militants killed 
were illegally  detained villagers who had 
nothing to do with the massacre. Earlier this 
year,  five officers were charged with murder. 
These men are now claiming immunity from 
prosecution under the Armed Forces Special Powers 
Act. For this reason, in  J&K many troops believe 
they can get away with murder. Because of these 
abuses, a government-appointed committee in 2005 
said the Act should be  repealed. But the 
government refused to release the report and has 
not acted. 

  Justice in J&K has taken a peculiar form where 
patriotism, nationalism,  political ideology, 
duty, and religion, all dance to their own tune 
of  retribution.

The killing of supposed informers and traitors by 
militants,  attacks upon civilians by both 
government forces and militants, and the torture 
and summary execution of supposed militants by 
troops - all illegal in both  peacetime and 
wartime - are common in J&K. The militants 
actually  responsible for such attacks are seldom 
prosecuted. Nor do troops responsible  for such 
killings face transparent courts-martial or 
criminal courts.

  In light of all of this, it is important to 
consider Mohammad Afzal Guru's  case very 
carefully. Is he really the person that so many 
Indians supposedly  want dead? Or are they taking 
out their frustrations on an easy target? For 
many, Afzal bears the burden of representing all 
those who dare to oppose Indian  rule in restive 
parts of the country, because the attack on 
Parliament was an  attack on India. Conversely, 
many Kashmiris would say that Afzal is a freedom 
fighter, planning an attempt at the symbol of 
Indian oppression.

  Both views are flawed. For this multi-religious, 
multi-ethnic, multi-cultural  state to survive, 
Indians have to believe in equal justice for all. 
And in the  case of J&K, there has been 
consistent failure to deliver on this promise. 
Dealt with properly, the case of Mohammad Afzal 
could be part of the solution,  not part of the 
problem.

  Meenakshi Ganguly is the South Asia researcher for Human Rights  Watch


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Buzz on the perils of fundamentalist politics, on
matters of peace and democratisation in South
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