The Death Penalty Case of Mohd. Afzal

According to the formula, the death penalty is awarded only in the “rarest of rare” cases. There must be something about the crime or the criminal which causes the judge to decide that the penalty of imprisonment for life will be insufficient. The crime must be grave or heinous enough to warrant the extreme penalty, or else the criminal must be considered entirely without hope of redemption.

Criminal. It goes without saying that the person sentenced to death must have been shown conclusively to have committed whatever was the crime. It goes without saying that that person’s guilt must have been established, to quote another formula, “beyond the shadow of a doubt.”

Was Mohd. Afzal’s guilt in the “Parliament attack case” established in this conclusive way? Here I shall look only at the fact that the judgment states that his guilt was established on the basis of circumstantial evidence.

By its very nature, circumstantial evidence is a weak form of evidence. It involves the putting together of two and two and does not depend on the sensory perceptions of any person. Circumstantial evidence says not “he did it” but “in view of this, this, and this, I think he must have done it.” It can be called deduction, it can be called conjecture, it can be called jumping to a conclusion. Certainly it is not based on something seen, heard, smelt, touched or tasted.

In a lay person, the juxtaposition of a supposed crime deemed to be of the “rarest of rare” kind and an inherently weak form of evidence causes perplexity and unease. It makes one think of stud bulls running around a racing track meant for greyhounds, or of a 5 lb. hammer used in driving home a screw with a Phillips head.

There are those among Christians who hold that the principle of lex talion (“an eye for an eye”) was divinely ordained. However, this principle, which was long ago abandoned by most civilised societies, demands the strictest proof, as we see.

“On the evidence of two witnesses or of three witnesses he that is to die shall be put to death; a person shall not be put to death on the evidence of one witness…” (Deuteronomy 17:6,7). And here is Jehovah in the Old Testament: “…but no person shall be put to death on the testimony of one witness.” (Numbers 35:30)

Judaism recognises the death penalty, but it places strict conditions. “For a Jew to be convicted by a Jewish court, two eyewitnesses must have seen the perpetrator about to commit the crime and warned him of the potential penalty. The murderer must verbally answer that he chooses to proceed anyway. (For a non-Jew, only one witness is required and no verbal warning.)” (Jewish Journal of Greater Los Angeles, 10 March 2000)

How many eye-witnesses testified against Mohd. Afzal in the “Parliament attack case”? One half, perhaps? An eighth, or a sixtieth? Less than one witness, that is certain.

The judgment of the Supreme Court was an attempt to produce a poetically elegant piece of prose, never mind the effect of much unwanted use of the definite article. “Afzal is characterised as a ‘menace to the society’, whose ‘life should become extinct’ to satisfy ‘the collective conscience of the society'” (Nirmalangshu Mukherji, quoting from the judgment in “Should Mohammad Afzal Die?”, Economic and Political Weekly, 7-13 October 2006).

What is conscience? My understanding of my own conscience has always been that it is what prevents me from shop-lifting, from kicking puppies, from bursting fire-crackers at midnight. It is also the force which makes me try to assist anyone who seems to be in distress.

The “collective conscience of the society” seems an altogether different phenomenon. It does not prevent “the society” from doing wrong: instead, it impels it to do that which so many consider wrong but which it transforms into right–if we are to go by the specious reasoning of the judgment–by reference to a man who is described as a “menace to the society,” etc.

Other than the Supreme Court, which waved it about to justify its award of the death penalty to Mohd. Afzal, who knew of this “collective conscience of the society”? Did “the society” itself know of it? Were the people of, say, Kashmir and the North-East among the possessors of this unusual “collective conscience”? Just who are those who make up “the society”? I am compelled to conclude that they are those who swallow the police’ version of facts dished out by an obliging and singularly uncritical media. I shall not repeat what so many have said about the impossibility of Mohd. Afzal’s getting a fair trial, given the sustained glare of one-sided publicity his case had received.

I have argued elsewhere (“S.A.R. Geelani and the Dance of Holy Justice,” Mainstream, 3 September 2005) that, in setting free Geelani with a face blackened for life, the Supreme Court gave the media what they wanted. In the case of Mohd. Afzal, the Supreme Court enabled the media to sate the public thirst for blood which they had created while co-operating with another arm of the justice machinery, the police. With the wheel of unreason moving in the only way in which wheels can move, we search in vain for the distinction between administration and judiciary.

As a side light, there was a comedy of errors in which the errors were not those which the chief actor described as such. Colin Gonsalves, advocate for Mohd. Afzal at a late stage, has insisted again and again that his 250-page submissions–their length is stated each time–did not contain the plea that his client, whose guilt would implicitly have been accepted, be executed by lethal injection rather than by hanging. Indeed Mr. Gonsalves’ submissions did not contain that plea; but he forgets that he filed a supplementary affidavit–which bore the signature of Mohd. Afzal who, when he signed it, did not know what it contained–which described lethal injection as a method of execution much to be preferred to hanging because it was humane, not painful, etc. Why should a man sign such an affidavit who knew that above his head hung the death penalty? In the context of larger philosophical considerations, perhaps? Mr. Gonsalves, otherwise hardly tongue-tied, does not say.

There is something else, however, which eminently credible people say who were present in court at the time. It is that Mr. Gonsalves, in his oral submissions, clearly asked that his client Mohd. Afzal be put to death not by hanging but by lethal injection. Unlike written submissions and supplementary affidavits, oral submissions do not form part of the record unless the court refers to them in its judgment. The court did not refer to them in this instance: possibly because of their absurd nature: but, I repeat, those who say that the defence lawyer’s spoken words included this admission of his client’s guilt–and apparently the foreknowledge that the sentence to be handed down would be that of death–are credible people.

The efforts to have Mohd. Afzal’s death sentence commuted have attracted the attention of the media, but in a strange and perhaps predictable way: they have transformed the matter into a debate for and against capital punishment. Whether or not Mohd. Afzal received justice is not of any interest to them. The oak is all, the acorn forgotten. Other than the talk about Colin Gonsalves and lethal injections–of which Mr. Gonsalves seems to have become aware rather more than a year after I heard it–there is the question of whether or not the trial judge said to Mohd. Afzal, in his chamber and in the presence of Seema Gulati, then amicus curiae, that he should not worry because he was “our man.” This must remain forever a rumour, since no one can be expected to say for the record that it happened. If it did happen, though, once again no difference remains between judiciary and administration.

Mohd. Afzal, we might recall, is a former militant who, since his surrender, was in close and constant contact with the “forces of law and order.” Lamb to the slaughter? One man at least will be hanged: forget that the genesis of the plot to blow up Parliament has not been and cannot be explicated. Do not ask if there even was a plot. On the basis of circumstantial evidence, with no independent witness or corroboration, the Supreme Court has passed judgment in order to satisfy its constructed “collective conscience of the society.” A fine conscience, one which bays for blood.

The strongest argument against the death penalty is the imperfections of systems of justice. For example, the Stanford Law Review uncovered 350 20th-century cases in the U.S. in which “clearly innocent” people had been sentenced to death. That 75 of these cases dated since 1970 shows an improvement over time, it could be argued.

Besides, execution has by no means been shown to be a deterrent. Now and then, murderers–that is, those convicted of murder–are hanged and the people are made to know of this. Yet murders continue to be committed. I do not know if anyone has tabulated these figures for a year or for a decade or two: on the one side, the numbers of people hanged for having committed murder; and on the other, the numbers of murders committed in the weeks and months following the hangings. When many guilty people get away scot free, the miscarriage of justice involved in hanging an innocent becomes all the more appalling.

I shall probably never decide if I am absolutely for or absolutely against the death penalty. On the one hand are the Modis, for whom a sentence of being torn asunder by horses would be horribly mild: and on the other are the Afzals, who are pushed towards the gallows although against them proof positive exists by no stretch of the imagination.

In our land of justice, the Afzals are tried, never mind that for most of their trials they have no lawyers to speak for them: while the Modis do not even have charges framed against them. Our socially conscious, responsible, etc., media find it convenient and safe to debate the death penalty in the abstract.

A friend suggested another way of looking at this affair. She said that the “attack on Parliament” had been offered as the reason for the immediate mobilisation of the armed forces on a scale unprecedented in peace time; and that many hold that the two countries were brought to the brink of a nuclear war. Now Pakistan never accepted that it had done anything wrong or that it had looked the other way while its men did wrong and its territory was misused. For its part, India never presented evidence so convincing as to put Pakistan squarely in the dock. Pakistan has only expressed a general regret, which is very different from saying “sorry.” That is, war-like India (“You tried to blow up our Parliament: we will blow up your country”) could not extract even an apology.

It was to justify that inordinately expensive and dangerous “reaction”, my friend said, that Mohd. Afzal was sentenced to be put to death. Blood alone could serve as the ink on the rubber stamp which would close the file in a satisfactory and satisfying way; and Mohd. Afzal was State property, a readily available resource, an expendable pawn well placed.

MUKUL DUBE lives in Delhi. He can be reached at: