Why Afzal Must Not Be Hanged
By Nandita Haksar
27 May, 2010
Kashmirtimes. com
All day I have been getting calls from television channels asking me for
a bite on the Afzal case. I have refused. Whatever I wanted to say has
been written in my book Framing Geelani, Hanging Afzal: Patriotism in
the Time of Terror.
The question of Afzal came up because of the judgement in the Mumbai
attack case and death sentence to Kasab. The facts of the two cases are
different and there is no link between the two cases.
If the media really wanted to hear Afzal's side of the story it could
read his mercy petition published in the form of a book by Champa
Foundation along with Bibliophile South Asia in 2007. It is called The
Afzal Petition: A Quest for Justice. Except for the Frontline, which
reviewed the book, other media ignored it. Now the electronic media
wants me to give them a bite so that they can satisfy their conscience
that they have put both sides of the story.
The reason why we began the campaign for Afzal was because he did not
get a fair trial. He did not have a chance to represent himself. And
this fact alone makes it a clear case for commuting his death sentence
into life imprisonment.
There is no need to get into any complicated legal reasons. The record
of the Sessions Court is enough to show that Mohammad Afzal was denied a
fair trial. He did not get a lawyer because he was too poor to pay the
fees for a lawyer, and even those who he named refused to represent him
(including a well-known human rights lawyer). The lawyer foisted on him
by the Sessions Judge did not want to represent Afzal. The Order of the
Sessions Judge, dated July 7, 2002, states: "Mr Neeraj Bansal has
requested for withdrawal from this case, but he is requested to assist
the court during trial." This shows Mr Bansal was an amicus curiae, not
a defence lawyer.
Every Indian citizen should read the annexure to Afzal's mercy petition,
reproduced in the curative petition filed by Indira Jaisingh. The chart
lists the 80 witnesses produced by the prosecution and shows that the
lawyer appointed by the Sessions Court for Afzal did not cross- examine
56 of those witnesses, even the most crucial ones. And even those who
were cross- examined were done most inadequately, sometimes by merely
giving one suggestion.
Anyone remotely interested in justice should just read the court records
with regard to the cross-examination of the most important witnesses
including the Investigating Officer. The records clearly show that PW 76
(Inspector H. S. Gill), on whose testimony Afzal was given a death
sentence, was most inadequately cross-examined.
I do not want to go into the controversies about Afzal's lawyers at the
High Court and Supreme Court. Even if they had done their best they
could not have undone the damage done at the Sessions Court where the
foundation of his case was laid.
These facts alone should shame us as citizens of the world's largest
democracy.
Apart from the fact that Afzal was denied a fair trial, even on the
facts of the case Afzal cannot be given death penalty because the
prosecution did not produce any evidence of his being linked to any
terrorist organisation. The Supreme Court of India acquitted Mohammad
Afzal of the charges of belonging to any terrorist organisation. There
was not even an iota of evidence produced by the prosecution to link
Afzal with any banned organisation. Secondly, Afzal was not directly
involved in the killing of anyone. Thirdly, the Supreme Court rejected
his confession because it was found to be extracted by torture.
The trial of the four persons accused of attacking Parliament exposed
the shoddiness of the investigation process. It brought to light the
communal atmosphere in the Special Cell, the corruption of some of its
officers (the Investigating Officer, Rajbir Singh, was involved in many
corruption cases and subsequently murdered) and their story of arrests
was proved to be not true. That is the reason that of the four accused
two were acquitted, one was given ten years sentence and only Afzal was
given death sentence.
Despite this the Supreme Court sentenced Afzal Guru to death. Why? The
Supreme Court held: "The incident, which resulted in heavy casualties,
had shaken the entire nation and the collective conscience of the
society will only be satisfied if the capital punishment is awarded to
the offender."
The Kashmiris have not forgotten the injustice perpetuated on Maqbool
Butt and they will not forget Afzal if he is hanged. Kashmiris protested
against Afzal's death sentence not merely because he was a Kashmiri, but
because he was denied justice.
In a resolution passed in Srinagar on September 24, 2005 the leaders of
the movement for Kashmir's self-determination asked the following
question: "We the people of Kashmir ask: why the collective conscience
of Indians is not shaken by the fact that a Kashmiri has been sentenced
to death without a fair trial, without a chance to represent himself?
Throughout the trial at the Sessions Court Mohammad Afzal asked the
Judge to appoint a lawyer. He even named various lawyers but they all
refused to represent him. Is it his fault that the Indian lawyers think
it is more patriotic to allow a Kashmiri to die rather than ensure he
gets a fair trial?"
This resolution was signed by Syed Ali Shah Geelani, Shabir Ahmad Shah,
Mohammad Yaseen Malik, Mian Abdul Qayyoom and Nisar Mir.
In contrast, there was a tremendous response in Kashmir to our campaign
for defence of the Parliament attack case accused and the acquittal of
one accused after he was awarded the death sentence. They felt that for
the first time some Indians had taken up the matter without any hidden
agenda, without raising funds or for political gain. In fact our
campaign created so much goodwill and hope. This is because the story of
Afzal is the story of Kashmiris of his generation. And for the first
time his story was being heard.
Apart from Kashmir, many Muslims also felt that our campaign for the
Parliament accused had set new standards for human rights and they saw
some hope in the midst of the Islamo-phobia engulfing our country. The
campaign made them feel slightly more secure.
Now once again Afzal is being hanged by the media. Broadcasting the
press conference he was made to give inside the Special Cell in
violation of all rules and ethics. One TV channel even claimed that it
was an interview with its correspondent when it was a conference in
which he was in handcuffs and made to make a self-incriminating statement.
If Azal is hanged today will it resolve any problem? Will it satisfy the
conscience of this country? Will all those gunning for him feel any
safer? The answer to all these questions is 'no'. Hanging Afzal under
the pressure of the Hindu Right-wing lobby would only endanger Indian
security and would be a stigma on Indian democracy.
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