Why Afzal shouldn't hang

The death penalty revolted many citizens and stands abolished in nearly 130 countries. However, as we move into the age of terrorism and counter-terrorism, revenge and retribution are coming back.

The Latin American writer Eduardo Galeano says: "In a world that prefers security to justice, there is loud applause whenever justice is sacrificed at the altar of security." Galeano believes executions have "a pharmaceutical effect" on the elite. Pharmacy is derived from the Greek pharmakos -- "humans sacrificed to the Gods in times of crises."

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A section of Indian society wants just such pharmaceutical relief through the hanging of Mohammed Afzal for the Parliament House attack of 2001.

A medieval lynch mob is being mobilised through lurid media stories which say the families of the victims of the attack cannot get justice unless Afzal is hanged. There must be no clemency for a traitor. He must die.

It is unspeakably sad that rank blood-thirst and chauvinist ultra-nationalism are disguised as an innocuous demand for justice. All manner of arguments are cited to claim that the president has no power to pardon Afzal.

However, former Solicitor General TR Andhyarujina has clarified that the power of pardon is not an individual act of grace, but is an integral part of the criminal justice system and India's constitutional scheme. It doesn't interfere with the courts.

The president is entitled to re-appraise a case, and come to a conclusion different from the court's. The purpose of the clemency power is to ensure that "the public welfare would be better served by inflicting less punishment than what the judgment has fixed."

President Kalam, acting on the cabinet's advice, should take a fresh look at Afzal's case. It is his constitutional and moral duty to ensure that there are no grey areas in the evidence on which Afzal was convicted.

Consider the facts. Afzal was not the mastermind or chief conspirator in the Parliament attack. He didn't commit murder or participate in the attack. Yet, he was sentenced to death for murder (Sec 302 of the Indian Penal Code), waging war against the state (Sec 121 and 121A), and criminal conspiracy (Sec 120A & B).

The punishment is, prima facie, excessive and disproportionate.

The investigation was completed in just 17 days by Assistant Commissioner Rajbir Singh of the Delhi police's anti-terrorism "Special Cell." A self-confessed "encounter specialist," Singh stands disgraced for extortion and corruption.

Huge gaps remain in the sequence of events, links between Afzal and the claimed masterminds (Jaish-e-Mohammed's Masood Azhar and Ghazi Baba), and the attackers' identity.

The biggest gaps pertain to the role of the J&K police's Special Task Force to whom Afzal, a former JKLF militant, surrendered. Afzal claims -- without being contradicted -- that he met Tariq Ahmad at an STF camp. Tariq took him to a police officer, Dravinder Singh, who introduced him to Mohammad alias Burger, named as the leader of the attackers.

Afzal brought Mohammad to Delhi, and helped him buy the car used in the attack. But he says Dravinder and Tariq ordered him to do this.

Here, the investigation goes cold. There's no trace of Tariq or Dravinder. In the murky world of Kashmir's insurgency-counter-insurgency, it is hard to pinpoint crime and complicity. And it's a mystery why the police knew nothing about the activities of a closely-monitored surrendered militant.

Circumstantial evidence of Afzal's involvement in conspiracy hinges on the recovery of explosives, and crucially, on records of cell phone calls to the five attackers.

However, the police couldn't explain why they broke into Afzal's house to recover explosives during his absence -- when the landlord had the key.

The cell phone record traced several calls from the five men to number 98114.89429 -- allegedly belonging to an instrument seized from Afzal. The instrument had no SIM card. The only identity mark was its IMEI number, unique to each instrument.

How did the police discover the IMEI number? There are only two ways: open the instrument, or dial a code and have the number displayed. But the officer certifying the recovery swore that he neither opened nor operated the instrument.

Besides, the claimed dates of purchase of the phone (December 4) and its first recorded operation (November 6) don't match!

This large grey area in the evidence puts a big question-mark over the conclusion that Afzal must be awarded the severest punishment.

Afzal's personal deposition describes how he was drawn into secessionist militancy, but got disillusioned. After surrendering he was harassed and subjected to extortion by the STF. The picture that emerges is that of a person who isn't beyond reform.

Afzal's death sentence violates the Supreme Court's guidelines, which say that sentence should be awarded in "the rarest of rare cases" -- when a murder is extremely brutal, grotesque or diabolical, or targets a community or caste. This doesn't apply to Afzal.

The judiciary has often distinguished between an act's commission and conspiracy to commit it. Nathuram Godse was hanged for Gandhiji's assassination, but not his fellow-conspirator Gopal.

In the Purulia arms-drop case -- India's worst-ever security breach -- the state commuted the life sentence of six men. Five ethnic-Russian Latvians were freed at the Russian government's request. Peter Bleach was freed in 2004 at the urgings of British Prime Minister Tony Blair.

The reasons for releasing them involved political relations with foreign governments.

In Afzal's case there are more persuasive reasons. The government must apply the "public welfare" test and take a statesman-like view based on a compassionate and humane vision.

Finally, we must recall the all-important moral argument against capital punishment. It violates a principle at the heart of any civilised society -- prohibiting the planned killing of a person. Capital punishment does not deter heinous crime.

All legal systems are fallible. It's immoral to extinguish a human life by assuming the opposite.

Praful Bidwai is an eminent Indian columnist.