Should Mohammed Afzal be hanged?

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.

HT

 

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The complexity of execution

Should Mohammed Afzal be hanged? The honest answer is: I do not know. I have wrestled long and hard with the question and I still cannot decide what the right thing to do would be.

My problems with the sentence begin with my doubts about the death penalty itself. For much of my youth, I accepted the traditional liberal arguments against capital punishment.

And those arguments are intellectually unassailable. The basis of all punishment is deterrence. We do not put a man in jail only to get him out of the way (if that were so, then we would never release him); we do it to make an example out of him, to tell people that they will also be punished if they break the law.

There are arguments about what constitutes effective deterrence. For instance, Singapore believes that very strict punishments are required to deter criminals. Many Arab countries believe that, for true deterrence, punishments should be publicly carried out. And European countries think they can get by with lenient punishments. But nobody disputes that the point of putting somebody in jail, of hanging him or of flogging him in public is to deter others.

The problem with the death penalty is that it has absolutely no deterrent value. In every society, where capital punishment has been abolished, there has either been no effect at all on the crime rate or — and this is the significant bit — there have actually been fewer murders after they stopped hanging people.

Consequently, nearly every developed country (with the exception of some American states — but then, development is a relative term) has abolished capital punishment. They regard it as a barbaric hangover from a medieval era where punishment was about revenge and bloodlust. And none of them has suffered as a result of the abolition.

As convincing as all this is, I have become an agnostic on the subject of the death penalty in India: I am no longer as passionate about demanding its abolition. There are two reasons for this. The first is that the death penalty is handed out every day on the streets of India by policemen and paramilitary troops in the form of the so-called encounter. Given that there is widespread public support for such encounters, and that they seem set to continue, does it make any sense to get so self-righteous about a few hangings?

As weak as the case for capital punishment may be, a hanging is, at least, the result of due process where a judge looks at the evidence and a defendant is given a right to present his case. On the other hand, encounters follow no process, there is no sense of justice and innocent people are frequently bumped off. Moreover, the numbers tell their own story. More people are killed by policemen on the streets of India in an average week than are hanged after due process in a decade. So, if you really want to get agitated about the right to life, then don’t recycle a largely irrelevant Western debate about hanging; focus on encounters instead.

There is a second reason why I am less passionate about opposing hanging. After IC-814, I am now convinced that the longer we keep terrorists in jail, the greater is the incentive for their compatriots to hijack planes or to seize hostages to secure their release. In this case, the death penalty is a deterrent. It is the jail sentence that will encourage more terrorists.

Nevertheless, I do not pretend that my arguments can undermine the intellectual basis of the case against capital punishment. And those who support hanging in India usually fall back on two rather tiresome and well-worn strategies. Either they make the case for revenge (“Shouldn’t we avenge the guard who was murdered by this terrorist?” etc) or they play to cheap sentiment (“What will we tell the father of this murdered girl who has spent his life fighting for justice?”). Both arguments may have emotional power, but they have zero intellectual merit.

Which brings us to the case of Mohammed Afzal. The most distressing aspect of the campaigns for and against his hanging is how communally polarised the debate has become. The people who demand that he be killed forthwith tend to be sangh parivar sympathisers. Equally, many of those who ask that his sentence be commuted play the minority card. Some Kashmiri politicians have already begun to portray him as a martyr put to death by heartless Hindu policemen. The sub-text to all this is that it will now be almost impossible for a Muslim President to grant him clemency. Which is sad and against the principles of Indian secularism.

As for the case against hanging him, I have to say that I am not convinced. It is all very well to argue that the police are biased, that they torture suspects and that they manufacture evidence: in our hearts, we already know all that. But it is quite another thing to say that Afzal’s trial was unfair or that the judge was biased. Let’s not forget that others accused of complicity in the same attack were acquitted. If the judge was biased, he would have hanged everybody. And let’s also remember that it wasn’t just a single judge who found him guilty. His appeals were also turned down.

Nor does it make any sense to say that the poor fellow wasn’t physically present in Parliament when it was attacked and is therefore only a minor conspirator. This is the equivalent of saying that you can’t really blame Osama bin Laden for the 9/11 attacks because he did not fly one of the planes. In cases of terrorism, physical presence is not a necessary condition for guilt.

I am almost as annoyed by the Kashmiri arguments against his hanging. As far as I can tell, the basic appeal is as follows: he may well have attacked Parliament but, on the other hand, he could equally have been framed. Besides, he is a Kashmiri so we think you should commute his sentence.

This is nonsense. The man has been convicted by a court law. It doesn’t matter if he’s a Hindu or a Muslim, a Bihari or a Kashmiri; as far as we are concerned, he’s an Indian. I find it particularly shameful that so many mainstream political parties in the Valley have tried to whip up sentiment against the sentence by playing on subliminal communal fears.

But two arguments against the hanging seem to have some merit. The first is that many of those who got off in the Parliament attack case had heavyweight legal representation. Afzal, on the other hand, had no access to top lawyers, and relied on an amicus curiae. The sad reality of the Indian legal system is that even if you massacre a family in the middle of Connaught Place or Flora Fountain, in front of hundreds of witnesses, you’ll probably be found innocent if you get somebody like Ram Jethmalani to defend you or have enough money to buy off the witnesses. I always find it particularly distressing that the overwhelming majority of those hanged are poor people with no access to fancy legal brains. You could argue that Afzal belongs in this category.

But it is the second argument that still troubles me. Why are we punishing Afzal? Is it to deter other terrorists? If so, then I’m not sure that it’s going to work.

Look at it this way: suppose we do hang him, what do you suppose the consequences will be? Of course, we will deter terrorists from hijacking planes to free him. But given how high passions in the Valley are now running, isn’t there a danger that we will turn him into a martyr? That extremists and fundamentalists will use his execution as an emotional plea for recruitment?

Let’s take a parallel. When the US went into Iraq, conservative policy wonks argued that the introduction of democracy into Iraq would enable the Arab world to see a liberal society up-close. And once the Arabs discovered the virtues of democracy, they would discard religious fundamentalism and feudalism.

In fact, the invasion had exactly the opposite effect. Fundamentalists were able to portray it as part of a Western war against Islam and used it as part of their recruitment drive. Eventually, the invasion of Iraq created more terrorists than al-Qaeda could ever have hoped for.

Is this too far-fetched a comparison? Is it wrong to suggest that the hanging of a Kashmiri at a time when passions have been stirred up may well serve as a rallying point for extremists and help them convert more youth to their cause? That, far from being a deterrent, it could actually serve as an encouragement?

I’m not sure. And I also recognise the danger of accepting the ‘public opinion’ argument when it comes to handing out justice.

A basic tenet of a liberal society is that justice is not subject to swings in the public mood but is absolute.

All of which takes us back to where I started: should Afzal be hanged? I still don’t know. The issues are too complex for there to be any one right or wrong answer. Each of us will have to rely on our conscience and judgment to reach a view that is fair and just. And one that is pragmatic.

(To read responses to last week’s Counterpoint The Indians Are Coming, log on to www.hindustantimes.com/counterpoint.)