Afzal must not hang

India's justice delivery system will undermine its own credibility if Mohammed Afzal, accused in the Parliament attack case, is hanged.

OUR higher judiciary has come to play an ultra-conservative role that increasingly resembles its status in the 1950s and 1960s as a defender of privilege. Then, the Supreme Court and most High Courts acted as bulwarks of opposition to egalitarianism and ruled against progressive measures, including land reforms, abolition of privy purses, and bank nationalisation. They saw themselves as guardians of private property and interpreted freedoms and rights in largely individualistic terms.

It took a systemic upheaval - including changes in judicial appointment procedures, major shifts in the political balance-of-forces and the public mood, and a change-of-guard in the ruling party - before the higher judiciary stopped obstructing laws that promote the popular interest. Then followed a brief spring of judicial creativity with a liberal reinterpretation of fundamental rights and flowering of public interest litigation.

Over the past decade or more, the process has been reversed. The courts have handed down conservative judgments on numerous issues - from environmental protection to slum-dwellers' rights, from education to secularism, and from entrepreneurs' privileges to Bhopal.

Recent verdicts show a consistent conservative inclination, whether on the Narmada issue (which failed to uphold the imperative of rehabilitation), labour rights (subordinated to employers' profit), social policy (reservations, tribal rights, and so on), and urban issues (on which it is totally elitist), not to speak of the Hindutva-is-secularism judgment (1995).

The courts' failures to deliver a modicum of justice to the victims of the Gujarat carnage in four-and-a-half years (barring retrial in the Zaheera Sheikh case), and to intervene to stop one of the greatest corporate frauds in India's history (Enron) contrast sharply with their zealous micro-management of urban issues, including large-scale demolitions in Delhi, which have destroyed thousands of livelihoods. All this has weakened the public's faith in the higher judiciary.

In one respect, today's justice system is even worse than its earlier conservative avatar. Earlier, Judges usually took a lenient view of personal liberties, including the physical person's rights, and did not put an overly stringent interpretation on crime and punishment, with harsh sentences. For instance, the perpetrator of a crime was not equated with someone who conspires to commit it or is accessory to it.

Thus, Gopal Godse was not hanged for Gandhi's assassination, although he was fully complicit in that conspiracy. In 1983, the Supreme Court spelt out death penalty guidelines in the Machhi Singh case: As a rule, a murderer must be sentenced to life; capital punishment must be awarded in "the rarest of rare" cases - where murder is committed in an extremely brutal, grotesque, diabolical or revolting manner, or to punish a particular caste or community, and so on.

But in recent years, in response to terrorism, the judiciary's stance has considerably hardened. A decisive break was the Kehar Singh case (1989), when a conspirator was sentenced to death, although he did not assassinate Indira Gandhi. This represents a definite erosion of liberal values - at a time when the abolition of the death penalty has emerged the world over as a precondition for a country being considered civilised.

Today, we are witnessing yet another - perhaps even more distressing - retrogression: in Mohammed Afzal's case pertaining to the Parliament House attack of 2001. Afzal's appeal against his death sentence was rejected by the Delhi High Court and the Supreme Court. Served with the infamous "black warrant", he will be executed on October 20.

Afzal's hanging will be a grave miscarriage of justice and an offence to civilised conscience. It will have a profoundly negative impact on opinion in Kashmir at this extremely delicate juncture in the peace process. The widespread, spirited protests in the Kashmir valley are only the first sign of this.

The demand of all parties in Kashmir, barring the Bharatiya Janata Party (BJP), for clemency for Afzal represents the pervasive view that he was not directly responsible for the attack; nor is he beyond the pale of reform. The Indian state will commit a huge blunder if it does not prevent Afzal's hanging.

Lest it be contended that this is only a "political" argument, considering the jurisprudential issues, it is nobody's case that Afzal personally committed murder or participated in the attack. Yet, he was sentenced to death for murder (Section 302 of the Indian Penal Code), waging war against the state (Section 121 and 121A), and criminal conspiracy (Section 120A & B). On the face of it, the punishment is excessive and wholly disproportionate to his offence.

Afzal was tried under Prevention of Terrorism Act (POTA), but sentenced under the IPC. POTA clearly distinguishes between committing a terrorist act resulting in death (punishable by death), and conspiracy in the act (penalty, life imprisonment). It makes no sense to invoke a harsher law selectively when a specific anti-terrorist law exists.

The courts relied both on Afzal's own testimony - which showed that he, a surrendered militant, brought one of the five attackers (Mohammed alias Burger) from Kashmir to Delhi and helped him purchase a second-hand car - and on circumstantial evidence, which crucially hinges on the recovery of explosives from his house and records of cellphone calls with the five militants.

Both are open to doubt. The police say that they found explosives in Afzal's house when he was in custody, but cannot satisfactorily explain why they broke into it when the landlord had the key. This puts a question-mark over the evidence. The cellphone records were all traced to a Delhi number (98114-89429), used on an instrument allegedly found on Afzal when he was arrested in Srinagar. The instrument did not contain a SIM (Subscriber Idendity Module) card; it was identified through the IMEI (International Mobile Equipment Identity) number (which is unique to each instrument).

But how did the police discover the IMEI number? This can only be done in two ways: you either open the instrument and read the number; or you dial a code and it is displayed. But the policeman who made the recovery said on oath that he neither opened the instrument nor operated it. (Remarkably, Jammu and Kashmir did not have a cellular network in 2001.)

It is open to doubt whether Afzal actually had the cellphone that was so crucial to establishing that he was in contact with all five terrorists. In the absence of conclusive evidence that 98114-89429 belonged to and was used by Afzal, a deep, substantive conspiracy cannot be established.

There is another grey area. The police produced a dealer who deposed that Afzal had bought the cellphone on December 14, with a new SIM card. But the police's own records show that the number was in use since November 6.

All this casts doubt on the circumstantial evidence, and warrants circumspection and caution in concluding that Afzal was involved in a deep conspiracy.

Equally significant is Afzal's personal deposition of how he was drawn into secessionist militancy and crossed over to "Azad Kashmir", but got disillusioned. As a surrendered militant, he was constantly harassed and subjected to extortion by the Special Task Force (STF). He claims that he was ordered by one Tariq, connected with the STF, to escort Mohammad to Delhi, and did so. This was never controverted.

The picture that emerges from the testimony is that of a person who does not readily lie and can be forthright to the point of incriminating himself. Minimally, this suggests that he is capable of acting in good faith and not beyond reform.

Because Afzal did not commit murder, the death sentence verdict turns pivotally on the "waging-war-against-the-state" charge. But such treason is marked by great ambiguity. The idea derives from the early medieval doctrine of lese majeste, which holds that any affront to the sovereign (the king, with his divine sanction), is always grave enough to deserve death.

A secondary premise is that Parliament House is an embodiment of sovereignty - not just metaphorically or symbolically. Therefore, attacking it is tantamount to waging war on India. This is surely a literalist overreading. By this criterion, the members of the radical Dalit Panthers, who burned the Constitution in the 1970s, should have been hanged. Yet, the higher judiciary itself warned against such excess in 1951 - vis-a-vis the Bihar police mutiny, during which the rebels fired on the Army.

The inference that Afzal is guilty of waging war, murder and conspiracy is based on doubtful surmises. The element of doubt is so large that it would be unconscionable to extinguish a human life.

President Abdul Kalam must act to prevent such miscarriage of justice. He should unhesitatingly commute Afzal's sentence. He has every power to review and reappraise the case. It is his moral and Constitutional duty to apply humane criteria and ensure that misinterpretation of the law and anti-terrorist zeal do not result in death.