There are two ways you could answer this question. To begin with, you can argue that the death penalty is an abhorrent, archaic and arrogant punishment that contradicts India’s claim to be a fair, humane and wise society. After all, the courts can be wrong and judges are not infallible. But if a human being has paid with his life little will be achieved by rectifying the error afterwards. However, beyond that, do we have a moral right to take someone’s life? Since it’s not in our gift to grant it should we possess the power to command death?
I have no doubt where I stand on this issue of principle. I’m against the death penalty. It therefore follows that I would recommend commuting Afzal’s death sentence to life imprisonment. But by life I mean life — till death, in the natural course of events, terminates his existence.
However, the question ‘Should Mohammed Afzal be hanged?’ can also be answered another way — by examining the technical, legal and political arguments proffered by his defendants. I call that examining the merits of the case.
Afzal claims he was “entrapped” by the Special Task Force. He says he was “beaten” and his family “threatened (with) dire consequences” if he disclosed this. His wife adds the police “urinated in his mouth”. Writing in his defence, Nandita Haksar, who heads the campaign for clemency, states “the courts noted the police lied ... they fabricated evidence ... and used torture to extract false confessions”. If true, all of this raises serious doubts about the police handling of his case.
The Afzal trial is equally open to questioning. At the lower court, Afzal didn’t have a lawyer. He only had an amicus curiae. He says that three written applications for a lawyer of his choice were ignored by the judge. Consequently, he adds, not a single witness was cross-examined on his behalf by a legal mind. Then, at the High Court level, Afzal says he accepted Colin Gonsalves’s offer to represent him only to discover that “my advocate requested the Court (that I) should be killed by lethal injection rather than by hanging.” Again, if all this is true, one could ask has he had a fair and proper trial.
However, let’s for a moment dismiss these doubts. Let’s consider them to be baseless or, at least, self-serving. Turn instead to the crimes Afzal has been found guilty of and approach the question should he be hanged down this road.
He’s guilty of conspiracy to wage war against India. But his role is limited to arranging shelter and transport for the terrorists who attacked Parliament and maintaining contact with Ghazi Baba, the Jaish commander. Afzal is not guilty of direct participation in the attack. So, though by no means innocent, are his crimes serious enough to warrant a death sentence? Or would a lesser punishment be more appropriate?
I have little doubt that in terms of these technical and legal issues Afzal should not be put to death. But could there be overpowering political reasons that force a different decision? The Supreme Court, in its judgement of August 2005 upholding the death sentence, claimed that “the collective conscience of society can only be satisfied if capital punishment is awarded to the offender.” However, is that really the case?
First of all, who is to determine what the collective conscience of India requires? Supreme Court judges, sitting singly or collectively, are no better fitted to do so than you or I. Secondly, because such claims cannot be validated they also cannot be accepted as irrefutable. They are just claims and no more than that. Finally, I, at least, don’t believe India’s conscience hungers for blood. We’re not a vengeful people and our concept of justice is not revenge.
There is, however, an opposite political argument that could work in Afzal’s favour. If it’s the case that his hanging will send Kashmir up in flames then might clemency be in the greater public good? Soli Sorabjee says this argument is both tantamount to blackmail and could also set a terrible precedent. Perhaps.
But what if Kashmir does start to burn? What if this fear is real and not just a threat? Would it still be justice to risk the future of the state simply to honour the last letter of the Supreme Court? Or, in this case, does wisdom require caution?
Remember we’re not talking of a pardon but simply remission of a death sentence into imprisonment for life.
And, arguably, it’s for the greater good of India.