India looks all set to hang Mohammed Afzal, who has been sentenced to deathfor the terrorist attack on the Indian Parliament, in the next few days. Theoutcome of a clemency petition from his family which is presently before theIndian President, APJ Abdul Kalam, is still awaited. As in the movies, Afzal mayget a last minute reprieve, a commutation of his death sentence to lifeimprisonment or a lesser term, a power conferred on the President by Article 72of the Indian Constitution. But time is clearly not on Afzal's side.
On 13 December 2001, five men sprung from a white Ambassador car that hadentered the premises of the Indian Parliament complex and exchanged gunfire witharmed guards. Half an hour later, all five terrorists were dead, as were nearlytwice as many security personnel. The incident was immediately dubbed India's"9/11", but India, notwithstanding the ambitions of its élites andthe fantasies of its mandarins and powerbrokers, who are eager to pounce uponthe slightest suggestion that the country is headed for greatness, is nosuperpower. It cannot with impunity violate the sovereignty of other nations andlaunch air attacks at a 'moment of its choosing'; indeed, it cannot do much ofanything, except lodge diplomatic complaints, or, if it wishes to be moretheatrical, mass tens of thousands of troops on the border. It cannot, in onefell swoop, bomb Pakistan into abject submission. One immediately knew, once theterrorists had been killed and the license to unearth a conspiracy against thenation had been obtained, that more sacrificial lambs would have to be found.
Mohammed Afzal Guru was long ago, to put it plainly, a man in the waitingroom leading to the execution chamber. Afzal is a Kashmiri, and his home town ofBaramulla has been sharply hit by militancy; by his own admission, he oncebelonged to the militant organization JKLF, before surrendering to stateauthorities and endeavoring to create a new life for himself and his family. Forall one knows, Mohammed Afzal may be guilty of the crime, for which he has nowbeen condemned to death, of aiding the suicide attack on the Indian Parliament.Many who are not necessarily disposed towards Afzal have nonetheless pleaded forhis life, some among them primarily because, as they rightfully claim, the legalcase against Afzal is not even remotely close to being ironclad. Though theIndian Evidence Act is among the most stringent in the world, a forcedconfession was unlawfully used in evidence against Afzal. The police officerswho extracted the confession from Afzal have since been charged with corruption,and Afzal was not accorded the opportunity of legal representation. However,Afzal's conviction has been upheld by the Indian Supreme Court, and it isunlikely that President Kalam will be moved by these considerations.
The opposition to the Supreme Court's decision of those who take a principledethical stand against capital punishment is understandable, but the remainingarguments made on Afzal's behalf are largely derived from reasons of pragmatismand prudence. The state prosecutors admitted, and the Supreme Court agrees, thatAfzal is not among the 'masterminds' of the attack. Maulana Masood Azhar, theleader of the Jaish-e-Mohammed, which is believed to be the terroristorganization most likely to have orchestrated the attack, remains free inPakistan. It is contended that the punishment is vastly disproportionate to thecrime of which Afzal has been convicted, considering that he did not evenparticipate in the attack. The arguments from realpolitik which oppose Afzal'sdeath sentence stress that his execution would erode the Indian government'salready extraordinarily strained credibility in Kashmir, and give a boost tothose very terrorists and secessionists to whom the Indian state would like toteach a lesson or two. The Srinagar Valley has been rocked by demonstratorsopposed to the imminent execution, and the United Jihad Council has warned of'dire consequences' if it is allowed to take place. On the realpolitik view,nothing is gained by turning Afzal into a martyr: far from serving as adeterrent, his execution is likely to be turned into a recruiting tool forterrorist and secessionist groups in Kashmir, as well as for jihadiorganizations in Pakistan. Some Muslim organizations are likely to trumpet thecase as the most visible instantiation of the inability of a Muslim to get dueprocess of law in a non-Muslim state.
The advocates of the death sentence have summoned the usual arguments thatprevail whenever 'terrorism' is at issue. They argue that India should not, in aword, be a 'soft' state, and it should unequivocally convey to militantorganizations, and to their patron Pakistan, its resolute determination to bringto justice the perpetrators of terrorist atrocities. Since the victims ofterrorist attacks are, whether in India, the United States, or elsewhere,invariably turned into martyrs, the families of victims are brought on stage, soto speak, to offer the view that appeasement of terrorists would be a betrayalof the ideals for which the victims gave up their lives. The Indian SupremeCourt, while upholding the death sentence, furnished an argument bearing somefamily resemblance, though couched in a different and more anthropologicalidiom. Describing the present case as having 'no parallel in the history of theIndian Republic', the court noted that the attack had shaken up the entirecountry and was intended to paralyze the government and disrupt 'the normal lifeof the people of India.' The Court was thus duty-bound to furnish balm to theirwounds: in the words of the judgment, 'the collective conscience of the societywill only be satisfied if the capital punishment is awarded to the offender.'Though the Court set aside Afzal's conviction under POTA, and found that noevidence had been offered to prove that Afzal was a member of any terrorist gangor organization, it nonetheless found him guilty of having partaken in acriminal conspiracy to shake the very foundations of the country by assisting inthe attack on India's supreme 'sovereign democratic institution'.
As the Supreme Court's judgment amply suggests, the Parliament Attack casecannot be disassociated from the symbolic politics in which it is deeplyembedded. The attackers exposed the vulnerability of a 'sovereign democraticinstitution' of the Republic, and, in a lighter vein, they did so by arriving atthe Parliament's gates in a white Ambassador car, itself one of the supremeicons of a capacious, cumbersome, and dinosaur-like officialdom. NanditaHaksar,a prominent civil rights campaigner and Supreme Court lawyer who has made aneloquent plea on behalf of the Society for the Protection of Detainees' andPrisoners' Rights (SPDPR) to spare Afzal's life, has with some justificationsuggested that a wider symbolic politics renders a more sympathetic hearing ofAfzal's case improbable. The 'Hindu fascist forces' braying for Afzal's blood,Haksar argues, are 'victims of the ideology of the Islamophobia spawned by theUS war against terrorism.' She further submits that the American jury whichconvicted Zacarias Moussaoui of involvement in the terrorist attacks of 11September 2001 showed more compassion than Indian courts, and taking intoaccount his 'unstable childhood and dysfunctional family' background, besideshis 'hostile relationship with his mother', spared Moussaoui his life and onlycommitted him to life imprisonment.
That Haksar is grossly mistaken about the supposed compassion displayed by anAmerican jury towards an alleged hardcore terrorist is a point by which we neednot be detained, though one cannot but question the assumption that the US of A,where Mohammed Afzal would in the present climate of opinion have been a sittingduck, still sets the standards of justice for the world to emulate. The presentcase, the Supreme Court judgment states, presents 'a spectacle of rarest of rarecases', and that is more than warrant enough for summoning, from the recesses ofthe past, another of the 'rarest of rare cases' from which perhaps more insightis gained than from the conviction of Zacarias Moussaoui. In February 1949,Nathuram Godse and several others were found guilty of a criminal conspiracythat had led to the assassination of Mahatma Gandhi. Though Nathuram Godse tooksole responsibility for the murder, Judge Atma Charan sentenced him and fellowconspirator Narayan Apte to death, and the assassin's brother, Gopal, andseveral others to varying terms of imprisonment.
Ramdas Gandhi, the Mahatma's third son, was among those who pleaded withNehru that the lives of Nathuram and Apte should be spared. Gandhi, it waspointed out, was a staunch and inflexible opponent of the death penalty. Nehruremained unmoved: as he was to write to Ramdas, no lesser a person than the'Father of the Nation' had been assassinated, and much as he was inclined toaccept and honour the teachings of Bapu, his very own mentor, the ends ofjustice would be better served by the deaths of Nathuram and Apte. In this, the'rarest of rare cases', the secular Nehru had to serve an unspecified will thatcould not be defied. Nehru, we can be certain, would have approved of the wordsthat the Supreme Court chose to use in upholding Afzal's death sentence:"The appellant, who is a surrendered militant and who was bent uponrepeating the acts of treason against the nation, is a menace to the society andhis life should become extinct.'
Interesting as are the legal issues surrounding Afzal's conviction, andcompelling as are the questions of culpability and responsibility, it is clearthat Afzal's case now belongs to another spectral order. We must thus be askingvery different questions: What sacrificial victims does the nation-staterelentlessly seek? What is the symbolic register of sacrifice demanded by amodern nation-state? What sacrifices are demanded by the regime of truth, andwhat truths must be forsaken by the regime of sacrifice? These questions do notadmit of easy answers, but perhaps they may guide us to better reflection andaction.
Dr Vinay Lal is Associate Professor of History and Asian American Studies, UCLA.
