Hanging a man who was denied a fair trial would be a stigma on
BY NANDITA HASKAR
All day I have been getting calls from television channels
asking me for a bite on the Afzal case (This piece was written on May 27).
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 Bansal was amicus curiae, not a
Every Indian citizen should read the annexure to Afzal’s
mercy petition, reproduced in the curative petition filed by Indira
Jaising. 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 HS 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 curt 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 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
This resolution was signed by Syed Ali Shah Geelani,
Shabbir Ahmad Shah, Mohammad Yasin Malik, Mian Abdul Qayyoom and Nisar
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 Islamophobia 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
If Afzal 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.
(Nandita Haksar is a civil rights activist closely
associated with the rights of defendants in the Parliament attack case.)