Death sentence dilemma

A nation that succumbs to threats of violence is worse than one that executes murderers

Opponents of Mohammad Afzal Guru’s death sentence fall into three categories. First, there are those who are opposed to the death sentence in principle. Regardless of the merits of the argument for or against the death penalty though, leaving a perception that the rules were changed to save Afzal risks dividing the nation in more than one sense. This case must be seen from the point of what the law is (or indeed, what it was when the crime was committed), rather than what it should probably be.

Second, there are those who believe that there is a reasonable chance of him being partially or wholly innocent of the crime he’s been convicted of. Afzal’s family and lawyers perhaps sincerely believe that he is innocent, or that the punishments is excessive in the light of his possible role in the conspiracy. But the issue of guilt has been decided by the Supreme Court—the most qualified body to decide such matters—and regardless of questions about its fallibility, that should be good enough for everybody. Because that’s what everybody gets. The argument that he is ‘less guilty’ as he was not one of the attackers is absurd. Bin Laden’s guilt, then, should be outweighed by Mohammed Atta’s.

And third, there are those who implicitly acknowledge that it is his very culpability that calls for sparing him the noose. Some argue that hanging him will never allow us to uncover the whole story. This in a country where confessions made in police custody are routinely retracted in court. It is the thin end of the wedge, for the professional liberals and the lofty-softy sorts can be counted on to rail against violation of the rights of prisoners and suspects by their interrogators.

The third category is by far the largest one, for it includes both genuine pragmatists and all the political opportunists that the Indian government has foolishly engaged in its attempts to resolve the troubles in Jammu & Kashmir. Kashmiri politicians have found it to their advantage to incite and project the Kashmiri people as being supportive of terrorists. Ordinary Indians are generally outraged by this, and may even have hardened their stands because of it. But the Indian government should hardly be surprised by this. Remember what the Hurriyat was saying after last year’s earthquake.

In the event, the Indian government finds itself left with two bad options. One the one hand, acceding to Afzal’s plea for clemency will be a grand confirmation of its generally soft attitude towards terrorism and national security. On the other, rejecting it will worsen its problems with its chosen interlocutors in Kashmir even if it does not do the irreparable damage that is being projected. It is indeed a bad situation. It has itself to blame. Engaging the Hurriyat in itself was not a mistake. Indulging it and failing to punish its transgressions and acts of bad faith certainly was.

There is no case for clemency. (It might be politically astute to take a couple of years to review the petition, as suggested here.) Afzal himself remains unrepentent. The consitution does not require him to personally repent for the president to grant him clemency. But the president has to consider the bigger picture. Professional liberals, lofty-softies and the human-rights types have done their usual routine. Like the last time when they came out on the streets to defend a child-rapist-murderer. But it is the politicians who have so characterised the Afzal case that clemency for him implies that the Indian state has yielded to extremists. At a time when it is under sustained attack from terrorists and extremists, India cannot afford to send any signal that can be interpreted as weakness.

If the Kashmir valley ‘goes into flames’ causing the ‘peace process’ with Pakistan to unravel then it is an early indicator of what lies ahead if the current course is followed. Far from causing the Hurriyat to be more ‘moderate’, it has driven the likes of Farooq Abdullah into reckless populism and Chief Minister Ghulam Nabi Azad into connivance. And why, a Pakistan that protests references to its ‘domestic affairs’ in conversations between the Defence Minister and the service chiefs, has the audacity to comment on Afzal’s clemency.

New Delhi must put the political opportunists and the Hurriyat on notice they will be held responsible for any ‘flames’ that may erupt in Kashmir, and future negotiations will be contingent on their co-operation in keeping the peace. There is no other way. Should India blink, only the naive will believe that an emboldened Hurriyat will be any more inclined towards compromise.

Check out the blogs linked off this post: some are well-known, some others deserve to be.

25 thoughts on “Death sentence dilemma”

  1. You know whats most disgusting about this case? Nobody has any doubts about Afzal’s guilt . Its just that he is guilty but
    a) He is a Kashmiri and you dont want another Maqbool Bhatt episode
    b) He is a Muslim and what secular country executes Muslims during Ramzan ( of course , the fact that this particular person also happens to be a convicted terrorist is beside the point )
    c) What about the human rights of this condemened-to-be-hanged gentleman ( Presumably the security guards who died during the attack were neither human nor did have any rights )

    Afzal supporters: take your pick from thh above choices.

  2. I think your post is quite a good summing up of all the arguments put across in support of and against the impending execution.

    However, there is one argument that i disagree with.

    But the issue of guilt has been decided by the Supreme Court—the most qualified body to decide such matters—and regardless of questions about its fallibility, that should be good enough for everybody. Because that’s what everybody gets.

    The problem is that apparent the Supreme Court does not go into the evidence of the case. That is what Afzal’s wife states in this letter to the President, I suppose someone could verify this for us.

    Second, you say that this is what everybody gets. But that is not necessarily true. Courts might also be partial. Kashmiri courts are apparently hand in glove with the army there.

    Nw, I don’t have proof for any of these claims. But the point is that we can’t brush them off just like that. There might be an element of truth in what they say. That possibility is not entirely ruled out.

  3. Karthik,

    One of the most uneven ways to come to a conclusion is to attempt to judge a court’s decision through media reports and articles written by the lawyers of the parties involved. It’s one thing to use these to arrive at a personal opinion. It’s quite another to pass verdicts over decisions that have arrived at after due process.

    The system is imperfect, but it’s imperfect for everyone. If we take the line that courts are corrupt and the appeals process is flawed, I’d say that we must offer clemency to every guilty party. Look at the argument: Afzal’s sentence must be discounted in view of the possible imperfections in the system. But sentences themselves are handed down in relation to the severity of the crime. So a sentence for a criminal convicted of a lesser crime must be discounted for the same reason. So on and so forth until we say that the pettiest criminals must be allowed to go scot-free (because sentence minus imperfection-discount equals zero). Then, because the same argument holds, you start at the top again and begin discounting. The logical end of this line of argument is no punishment for any crime!

  4. I hope no one is suggesting that he be let to get away with the crime scot-free if the crime has indeed been committed. I suggest that if there are suggestions that the trial has not been fair, we could have an inquiry on that, one which includes the likes of Ram Jethmalani and such, and the right-wingers too, so that we know for sure that there has been no injustice meted out.

    The problem is that the wife’s letter gives such facts that need to be disproved if a sane person has to believe that Afzal is indeed guilty. I am yet to see such proof being provided in the media.

    I have not passed verdicts over the Supreme Court and its judgements. But just as you can’t say for sure that the court passed the wrong judgement, you can’t say for sure that they were right either.

    A court derives its honour and prestige not only from the power vested in it by the constitution of India, but also from the respect it has gained in the hearts of Indian citizens by passing right judgements. It is extremely crucial that the general image of the court as a just body is maintained. But this image will not last for too long if the impression gets around that the courts give people death sentences without a fair trial.

    If the police and the courts have the facts to disprove the claims of Afzal’s wife, then I wish they make it public. It is of vital national interest that they do so.

    Otherwise, there ought to be an inquiry, for as long as there is doubt whether Afzal got a fair trial or not, he can’t be executed without tying an albatross around the Supreme Court’s neck.

  5. An excellent round-up of views. I’m amazed how many blogs you keep track of.

    Bottomline: Afzal survives because of communal politics.

  6. “if a sane person has to believe that Afzal is indeed guilty.”

    The Paralimaent Attack case went up from the trial court to High Court to Supreme Court. All three courts have pronounced Afzal guilty. Any person who “believes” that Afzal is not guilty after even the Supreme Court pronounces him guilty cannot be counted in the “sane” category.

  7. Mr. Cavale:

    Have you actually read the Mrs. Guru’s letter? I ask this out of genuine puzzlement, given that her letter does not seem to dispute that Mr. Guru was part of a conspiracy to attack Parliament. Rather, she seems to argue that members of the STF directed him to engage in the conspiracy!

    Here’s the relevant quote from her letter:

    “….the STF got hold of my husband in Delhi. The STF told my husband to bring one man Mohammad to Delhi from Kashmir. He met Mohammad and one other man Tariq there at the STF camp. He did not know anything about the men and he had no idea why he was being asked to do the job. He has told all this to the court but the court chose to believe half his statement about bringing Mohammad but not the bit that he was told to do so by the STF.”

    If I read correctly, Mr. Guru’s defense is that some members of the security forces ‘made him do it’. Do you really think this sort of defense ought to have impressed the Indian courts?

    Were the STF members doing this on their own initiative? Freelancers, in effect? Or were they part of some conspiracy? Perhaps the ISI penetrated the STF and used them to advance the plot? No, wait, maybe it was an Indian security force conspiracy? Btw, given the mindset in the secessionist faction, the last is the option they no doubt favor.

    All of these possibilities seem, on different grounds, quite implausible to me. You are quite right to point out that the Indian courts are not infallible, but if this is the best evidence Mr. Guru can proffer on his behalf, I am not persuaded of his innocence.

    Regards,
    Kumar

  8. RR,

    The same three courts first found Dr.Geelani to be guilty and later axcquitted him, maybe on a mere technicality, but still they did acquit him. Points out that even three layers of judiciary is not foolproof enough.

    Kumar,

    It is clear what Mrs.Guru is suggesting. She is suggesting that Afzal is a scapegoat. That the guilty in this particular case is someone else and that Afzal has been charged for offences he did not commit so that the STF has something or somebody to show for. Is this true, I do not know. What I know is that there is no response to these allegations. If there has been any, please be so kind as to direct me as to where to find it.

  9. “The same three courts first found Dr.Geelani to be guilty”

    You are misinformed. Only the lower court pronounced him guilty.

    But how do you know that Geelani is not guilty, except by courts declaring him to be so? Or is it your contention that courts are doing a good job when they acquit terrorists, but not when they convict them?

  10. @KRC: May be even three layers of judiciary are not enough. Lets create a fourth. Then a fifth. And so on? But then, lets be consistent in our approach. Let *every* case go to a higher court, and then the next higher one and then.. you get the drift.

    Why only send convictions to higher levels, why not acquittals? False convictions have the potential of ruining some individuals’ lives. False acquitals have the potential of doing exactly the same – and often at a much wider level.

    Let every accused stay under trial forever. Let the police arrest everyone they suspect, and then we can go on till forever with appeals and re-appeals. Does that sound okay to you?

    You also say, “.. for as long as there is doubt whether Afzal got a fair trial or not ..”

    Let me state just one thing – there will always be doubt in *someone’s* mind about every case. It is not the Supreme Court’s (or any other court’s) duty to go around convincing everyone. If that were to be so, the criminal justice system would completely collapse. The judiciary works on the principle of acquiting people when it (the judiciary) has “reasonable doubt” about the accused person’s guilt. That is the only doubt that counts. And that is the way it should be. Else, there will never be any justice done.

    The rest of us, the majority of whom have not even read the actual judgement, would always find it easy to have a doubt about everything. I doubt, therefore I exist. Indeed.

  11. Vivek,

    A minor point. Judiciary convicts only when the guilt has been proved beyond reasonable doubt. In all other cases the accused is set free, so its not the doubt of his guilt which is the driving force, but having no doubts having his involvement. A much higher scale. That is why in the Mattoo case, while you might criticize the lower court judge for ignoring evidence as the Delhi High Court has done, but it is perfectly understandable when he says that he is letting off Santosh Singh even when he ”knows” he is guilty. That’s perfectly ok.

  12. Confused,

    My bad. I meant “involvement”, and I don’t know how I ended up with “guilt”.

    Not a minor point at all (as you humbly suggest), so thanks a lot for the correction! I should learn to pause before posting comments 😉

  13. RR,

    I stand corrected. I was under the mistaken impression that it was the Supreme Court that first found Geelani to be guilty before acquitting him.

    Without reducing this into a I-am-sane-you-are-insane kind of brawl, I would like to say that the courts may not really deserve the implicit confidence that many of us have. Since none of us here have the expertise to actually go into the technicalities, it all depends on whom we choose to believe in. The courts, or those who say that the trial was not fair.

  14. In the case of Afzal we are saying that the supreme court can’t go wrong. But Sarabjit Singh was convicted by the pakistan supreme court. That time the indian media, people and politicians were saying that the judgement was wrong.

  15. Jai , I hardly think comparing Indian Supreme Court and Pakistan Supreme court is fair. The Paki judges have a history of siding with the ruling side ( army or democratic parties ) . But that is beside the point. The point is that the constitution of India provides for the Supreme Court as the highest court of appeal. Here we have a trial by media of a Supreme Court judgment ( + review judgement ) AFTER the whole trial process is over. Where were all these learned critics during the trial itself , when their opinion or advice MIGHT haVe influenced the matter. In any case , if you wanted the Supreme Court to change its decision because of public pressure ( whether media or politicians ) I think you are going to be rightly disappointed. The Supreme Court has a clear stand of handing the death penalty only in the ‘rarest of the rare cases’. Give the judges some credit that they will have followed due process of law.

  16. Okay here is all I know about him being not represented in the courts.
    First Seema Gulati was appointed by the courts to represent Afzal after he refused to hire a lawyer. Then Seema quit. But why? So that she can represent SAR Geelani. “All India Defence Committee for S A R Geelani” was formed with much fanfare and she was getting paid for defending SAR Geelani. Nandita Haskar mobilised the funds. So Seema’s junior Neeraja Bansal took over as Afzal’s defence lawyer. Today all – Geelani, Haskar and Gulati are playing the “Afzal did not have a proper defence lawyer” card. Juxtapose this with Afzal’s disinclination to file mercy petition and the cacophony of voices which sometimes say that he was not guilty, sometimes that he was guilty but the punishment is too heavy you fill find gaping holes in the “safe Afzal” campaign.
    And here is the whole story in TOI
    http://timesofindia.indiatimes.com/articleshow/2201307.cms

    (Surprising that TOI publishes these!)

  17. Mr. Cavale:

    Your interpretation that Mrs. Guru merely claims that the STF framed her husband is mistaken. Rather, Mrs. Guru’s statement seems to suggest that the STF was involved in the attack on Parliament. Notice that the letter says the court “….chose to believe half his statement about bringing Mohammad but not the bit that he was told to do so by the STF.”

    By implication, this statement suggests the following:

    1. Someone named ‘Mohammed’ was involved in the attack on Parliament.
    2. ‘Mohammed’ was transported to New Delhi by Mr. Guru, at the insistence of the STF.

    If this reading of the statement is correct, Mr. Gurus’s statement is exculpatory if and only if the STF was involved in a conspiracy to attack Parliament. Only strong evidence can underwrite fantastic claims such as these.

    Assume, for the sake of argument, that my interpretation is correct: Do you think it plausible that some section of the security forces were involved in the attack on Parliament?

    Regards,
    Kumar

  18. There are very interesting parallels emerging. The left loons in the US claim that 9/11 was the handiwork of the Bush establisment in order to attack islamic states. Here, the loons claim that Dec. 13 was an NDA conspiracy to attack pakistan and persecute minorities. The current online article by one faddist activist on outlook india reiterates the same claims. Afzal, we are being told, is not the mastermind co-ordinating the attack but the one person who knows the *Truth* about Dec. 13 and hanging him would end our chances of ever *knowing it*.

    I think Kafka’s work in fiction best describes the loonies and the world they live in.

  19. Kumar,

    You know that I have no idea whether this ‘Mohammed’ is just a figment of imagination or what. He might have escaped, committed suicide, I don’t know. And I have only suggested that one more investigation is in order, for answering all these questions…Either that, or we be given proof as to why we must not give any credit Afzal’s claims.

  20. Mr. Cavale:

    “….I have only suggested that one more investigation is in order, for answering all these questions…Either that, or we be given proof as to why we must not give any credit Afzal’s claims.”

    You are rather credulous in crediting Mr. Guru’s assertions: His assertion deserves no credit, a priori, because it relies on the highly implausible scenario that (at the least) some part of the GOI’s own security forces participated in the attack on Parliament. Claims that are, a priori, fantastically absurd require exceptionally strong evidence in order to win our assent, and there is simply no evidence–let alone strong evidence–along those lines.

    The prosecution does not need to ‘run down’ this absurd defense of Mr. Guru. I suspect that if Mr. Guru said little green men from Mars forced him to participate in the Parliament attack, you would insist that the GOI send astronauts to Mars for ‘one more investigation’.

    Kumar

    P.S., Perhaps on the way to Mars, the GOI would do well to investigate whether the Moon is made of green cheese–the open-minded fellow that you are Mr. Cavale, I am sure you harbor some doubts about the reigning orthodoxy on that issue.

  21. Kumar,

    I am sorry to say this but I think you are being extremely thick-headed about this.

    There are a no. of possibilities other than the one you suggest as implausible, and which would confirm with Mrs.Guru’s account. I can’t help it if you refuse to see them.

  22. Mr. Cavale:

    “There are a no. of possibilities other than the one you suggest as implausible, and which would confirm with Mrs.Guru’s account. I can’t help it if you refuse to see them.”

    Well, I admit that my imagination is not as hyperactive as yours. But the alternatives you mentioned in an earlier rejoinder–‘Mohammed’ commits suicide or escapes, etc.–simply do not relieve you of the epistemic burden of holding to a rather implausible conspiracy fantasy.

    Both the court and Mrs. Guru (based on the most plausible interpretation of her letter) agree that the ‘Mohammed’ whom Mr. Guru was (allegedly) forced by the STF to bring to Delhi, took part in the conspiracy to attack Parliament. You can fantasize all you want Mr. Cavale, but if you harbor doubts about Mr. Guru’s guilt based on his wife’s letter, then you are perforce committed to the plausibility of conspiracy theories about the involvement of some sections of the security forces in the attack. The burden of proof is on you, not me, to show that Mrs. Guru’s absurd claim merits further investigation.

    “I am sorry to say…”

    Why are you so passive-aggressive, Mr. Cavale? Of course you are not sorry, otherwise you wouldn’t have posted the comment! I am not sorry to say Mr. Cavale that you exactly fit the stereotype of the person who is so open-minded that his brain has fallen out.

    Kumar

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