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Alexander, Jeffrey, Becky and Deva
Weekend
Edition
November 11 / 12, 2006
Taking a Blunderbuss to a Mouse
The
Death Penalty Case of Mohd. Afzal
By MUKUL DUBE
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.
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