"The quality of a nation’s civilization can be largely measured bythe method it uses in the enforcement of its criminal law."
"The first obligation of the criminal justice system is to secure justiceby seeking and substanting truth through proof. Of course themeans must be as good as the ends and the dignity of the individualand freedom of the human person cannot be sacrificed by resortto improper means, however, worthy the ends… Safety of societyand the worth of the human person may co-exist in peace."
…Quoted in the Supreme Court judgement
inParliament attack case.
I believe that if Mohammad Afzal is hanged it will be a severe blowto the future of Indian democracy. Why do I say this? Because thehanging would further institutionalize the growing lawlessness ofthe police; it would strengthen the growing authoritarianism of theIndian state; it would undermine the peace process in Kashmirand give fillip to the Hindu fascist forces. Let me substantiate eachof these points with hard facts and then you, the reader can judgefor yourself whether you want to allow Mohammad Afzal to behanged in the name of your country.
Police lawlessness:
It is true that the attack on the Indian Parliament was the mostserious challenge to our democracy and if it had been successfulit would have had very long term consequences for the entireregion. Precisely for this reason it was imperative that the policeand investigation agencies should have carried out an honest andvigorous investigation into the crime. Instead, the investigationagencies did a shoddy investigation, fabricated evidence andmanipulated the nation’s sentiments by telling lies through themedia.
The investigating agencies failed to arrest the three people whothey said had masterminded the conspiracy to attack theParliament: Masood Ahzar, Ghazi Baba and Tariq Ahmad. Thenthe police try to say that one of the five men who attacked ourParliament was the same man who had hijacked the Indian Airlinesplane to Afghanistan. However, it was soon discovered that thiswas not true. In fact we still do not know the identities of the fivemen who attacked the Parliament and they were all killed.
The investigating agencies along with the Special Cell of the DelhiPolice picked up four persons and charged them with the offenceof conspiring to attack the Parliament. And after the arrest theycarried out a media trial to make up for the deficiencies in theirinvestigation. They held a media conference on December 20, 2001in the Special Cell, Lodi Road where they made Mohammad Afzalincriminate himself on the national media. Then in the court underoath the DCP Ashok Chand denied having had such a conference.The Delhi High Court and the Supreme Court noted that this seniorpolice officer told lies on oath in the court.
The courts also noted that the police lied about the time and placeof arrest of the accused; they fabricated evidence including thearrest memos and used torture to extract false confessions fromthe accused. The result of this shoddy investigation was that twoof the accused that the police had tried to frame in the case wereacquitted because there was no evidence against them at all. Thetwo acquitted are S A R Geelani and Navjot Sandhu wife of ShaukatGuru. Supreme Court also reduced the sentence of Shaukat Gurufrom death to ten years rigorous imprisonment.
The Supreme Court upheld the death sentence against Afzal Gurudespite the fact the court held that there was no direct evidenceagainst him.
No direct evidence
The Supreme Court categorically stated that there was no evidenceto show that Mohammad Afzal was a member of any bannedorganization. In fact the Court acquitted Afzal of the charges underPOTA. They held: "The conviction under section 3 (2) of POTA isset aside. The conviction under section 3 (5) of POTA is also setaside because there is no evidence that he is a member of a terroristorganization, once the confessional statement is excluded.Incidentally, we may mention that even going by confessionalstatement, it is doubtful whether the membership of a terrorist gangor organization is established."
None of the 80 prosecution witnesses ever even alleged that Afzalwas in any way associated or belonged to any terrorist organization.Despite these facts the police and a section of the media still referto Afzal as a "JeM activist".
Does Mohammad Afzal have to pay the price for the shoddy andillegal investigation by the corrupt and communal officers of theSpecial cell? And the main Investigating Officer, ACP Rajbir Singhis facing serious corruption charges and has been removed fromthe Special Cell. Another officer was himself arrested on corruptioncharges.
Rarest of rare cases
Under Indian law death sentence can be awarded only in rarest ofrare cases. There is no doubt that the offence Afzal has beenaccused of is serious. It is very serious indeed. But the question isnot the seriousness of the offence but what role, if any Afzal playedand whether the death sentence is in accordance with the principlesof natural justice and equity.
The Supreme Court has not passed any strictures against thecorrupt officers for their shoddy and illegal investigation and hasheld there is no direct evidence against Afzal. However, they haveconfirmed the death sentence because they believe that his deathis necessary to assuage the feeling of Indian citizens.
I quote from the judgement: "The incident, which resulted in heavycasualties, has shaken the entire nation and the collectiveconscience of the society will be satisfied if the capital punishmentis awarded to the offender. The challenge to the unity, integrityand sovereignty of India by these acts of terrorists and conspiratorscan only be compensated by giving the maximum punishment tothe person who is proved to be a conspirator in this treacherousact. The appellant, who is a surrendered militant and who wasbent upon repeating the acts of treason against the nation, is amenace to the society should become extinct. Accordingly weuphold the death sentence."
Can the collective conscience of the Indian people be satisfied if afellow citizen is hanged without even allowing him to defendhimself?
The Supreme Court noted that Afzal was denied access to anylawyer at the stage of interrogation. The Court held: "The accessto a lawyer at the stage of interrogation serves as a sort ofcounterweight to the intimidating atmosphere that surrounds thedetenu and gives him certain amount of guidance as to his rightsand obligations of the police."
Afzal denied legal assistance
Afzal comes from an economically poor family and did not havethe means to engage a lawyer. He was the only one of the fouraccused who had no lawyer even though he was the mostvulnerable. Afzal asked the designated court to appoint a lawyerfor him and even gave a list of at least eight lawyers. However, thelawyers refused to represent him out of fear of being dubbed anti-national.When Mr Ram Jethmalani, senior counsel and Memberof Parliament offered to defend Geelani the Shiv Sena goonsransacked his office in Mumbai. Such is the patriotism of the Hindufascist forces.
Finally, the designated judge passed an order on July 12, 2002appointing a junior lawyer as his amicus curiae and gave Afzal theright to cross examine the witnesses. Everyone knows that acriminal trial requires knowledge of criminal law procedures and itis impossible for a layman to conduct a proper cross examinationwithout legal assistance.
Afzal tried to get legal assistance and if you read his letter to theAll India Defence Committee for SAR Geelani and to his lawyer atthe Supreme Court you will know how cruelly Afzal was denied anopportunity to defend himself.
A section of the media and the Hindu fascist forces think that byhanging Mohammad Afzal without even listening to his story is alegitimate assertion of nationalism. They are indeed victims of theideology of Islamophobia spawned by the US war against terrorism.But even in the USA the jury trying Zacarias Moussaoui forcommitting acts of terror transcending national boundaries wasmore compassionate than our courts. Zacarias was not given deathpenalty even though he was involved in the conspiracy to attackthe twin towers on September 11, 2001. The reason why he wasnot given death penalty was because he has an "unstable childhoodand dysfunctional family resulted in his being placed in orphanagesand having a home life without structure and emotional and financialsupport eventually resulting in his leaving home due to his hostilerelationship with his mother."
If the courts had heard Afzal’s story they would have realized thathis case cannot be judged or separated from the story of KashmirValley and its tortured history of oppression and domination. Thereis no way to judge Mohammad Afzal without understanding andtaking into account the political context of the conflict between theIndian state and people of Kashmir.
Afzal’s story
On October 21, 2004 the Kashmir Times carried Afzal’s wife’sAppeal. It was reproduced in the Asian Age on Novemeber 4, 2004.From Tabassum’sstory you will understand the tragedy facing the people of Kashmir.
Afzal has corroborated the facts in his long letter to Sushil Kumarthe senior advocate who appeared for him in the Supreme Court.However, the facts in the letter were never put on record beforethe courts.
It is only when we read about the lives of Afzal and Tabassum thatwe begin to understand the outrage of the people of Kashmir againstthe death sentence awarded to Afzal. The people of Kashmir havebeen pouring out in the streets to vent their anger, resentment andanguish not only against a death sentence but for them MohammadAfzal is a symbol of Kashmiri people’s resistance to Indian state’sKashmir policy. A Resolution passed and signed by all the Kashmirileaders included in this collection of documents [available as a link under'In This Story' at the bottom of this page] reflects the feelingsof Kashmiri people.
The death sentence on Afzal reminds the people of Kashmir ofhow the Indian State hanged Maqbul Bhatt in the 1980s. It wassoon after that the Kashmiris took to armed resistance. Afzal’sdeath sentence has united all Kashmiris across ideological lines.Would it not be wise to learn from past mistakes and understandthat judicial murder and state revenge can never lead to justice orbring peace to Kashmir Valley or to our region? The fight forMohammad Afzal’s life is a fight for all that is good and meaningfulin Indian democracy; the cry for revenge and his death representsthe dehumanized and authoritarian aspects of the Indian Stateand civil society.
Read Afzal’s story in his words and choose what kind of societyyou want to live in.
Nandita Haksar
New Delhi
October 2006
Nandita Haksar is a civil rightsactivist, and a Supreme Court lawyer. She is closely associated with the rightsof defendants in the Parliament attack case and this article appears as theForeword to the brochure, Afzal's Story In His Words brought out by TheSociety for the Protection of Detainees’ And Prisoners’ Rights (SPDPR), leading the public campaign against the death sentence to Mohd Afzal. Since manyof the articles carried in that brochure already exist in the dossier for'Parliament Attack Case' in chronological order, available as a link under AlsoSee at the bottom of this page, they have been linked directly.
