An Appeal, 10 January 2007
The campaign to save Mohammad Afzal Guru from the gallows, the prime accused in the Parliament attack case, took momentum with the Supreme Court giving him death sentence in its judgment in the first week of August 2005. In his letter written to the Society for the Protection of Detainees’ and Prisoners’ Rights (SPDPR), Afzal had expressed his faith in SPDPR to lead the campaign for ensuring justice to him. Since then SPDPR has taken the real facts underlying the case of Mohammad Afzal to the larger public.
SPDPR started off with a meeting in Srinagar wherein, the nationalist leaders of Kashmir, the trade union leaders and the Bar Association of Srinagar and various intellectuals came together to pass a resolution demanding that Afzal be given justice. On the last week of September 2006, the government had announced the date of Afzal’s execution as on October 20. The SPDPR had soon come out with a booklet titled “Afzal’s Story in His Own Words”. This was a collection of the letters that Afzal had written to the All India Defence Committee for Syed Abdul Rehman Geelani, to his lawyer Mr. Sushil Kumar who appeared on his behalf in the Supreme Court, to the SPDPR and also the open letter of Tabassum, Afzal’s wife seeking justice for Afzal. On the first week of October, 2006 the SPDPR organised a massive dharna at the heart of New Delhi where the cross section of the civil society, trade unions, student groups, human rights activists, lawyers and various people’s representatives from Kashmir participated.
It was followed huge demonstrations in the valley demanding justice for Afzal. Signature campaigns—condemning the judicial murder of Mohammad Afzal as a stigma on Indian democracy—to the Hon’ble President of India from Jammu & Kashmir, Aligarh, Delhi, Hyderabad, Lucknow, Tamilnadu was conducted. This campaign are still on. Various public meetings were organised in Punjab, Haryana, Delhi, Uttar Pradesh, Tamilnadu, Kerala, Hyderabad and Bombay. Apart from this, various organisations in response to the call given by SPDPR held their demonstrations at various centres. They have also started signature campaigns protesting against the death penalty and the injustice meted out to Mohammad Afzal Guru. The issue of the hanging of Afzal without even letting him say his version of the story has to the day rocked the conscience of the democratic people of India.
We as SPDPR came into being during the campaign for the acquittal of Mr. SAR Geelani, Delhi University lecturer framed in the parliament attack case. This campaign made us conscious of the complex political issues involved in the question of political prisoners in jails in India.
Who is Afzal?
Mohammad Afzal’s story is like that of many young Kashmiris. Afzal was drawn to the movement led by the JKLF in 1990 like thousands of other youth. But he could not continue as he was disillusioned. Afzal had surrendered before the forces. But the State Task Force (STF) continuously harassed him so that he would become an informer for the state. He wanted to lead a simple normal life and the closest he could get to his earlier desire of a life in medicine was his attempt at opening a shop selling surgical instruments and medicines. He got married to Ms. Tabassum in 1998 and has a son Ghalib.
It is true that Mohammad Afzal’s case is not just a legal case. It has raised certain crucial issues with serious implications on basic human rights, civil liberties and constitutional safeguards guaranteed to the citizens. We believe that the conviction of Mohammad Afzal and the subsequent death sentence came about through a legal process fraught with irregularities and illegalities.
War against Terrorism
The increasing tendency of the Indian state to look at all forms of dissent through the politics of war against terror have further diminished the standards of human rights with national security taking precedence over principles of natural justice. The Supreme Court verdict also is not an exception to this hard reality when it observes:
“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 challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators can only be compensated by giving the maximum punishment to the person who is proven to be a conspirator in these treacherous act the appellant who is a surrendered militant and who was bent upon repeating the acts of treason against the nation is a menace to the society and his life should become extinct. Accordingly we uphold the death sentence.”
Yet, the SPDPR campaign demanding justice for Mohammad Afzal remains focused on the legal aspects of Mohammad Afzal’s case.
Media trial and vilification of Mohammad Afzal
Throughout the trial of the parliament attack case there has been utter disregard for procedures, the only guarantee for any accused in such circumstances, to take recourse to the provisions of law to represent oneself while being presumed innocent till proven guilty.
A few days after Mohammad Afzal was arrested, the officers of the Special Cell of the Delhi Police called a press conference at their Lodhi Road office and in the full media glare Mohammad Afzal was forced to incriminate himself. The clips of the media conference were broadcast by all the news channels for days which prejudiced public opinion against Mohammad Afzal and condemned him as guilty much before the trial began in the court. This is a serious violation of Articles 10 and 11 of the International Bill of Human Rights.
It is not that the High Court had not taken note of this media trial. It states: “It has indeed become a disturbing feature as is being noticed by us repeatedly that the accused persons after their remand by the Magistrate are brazenly paraded before the press and interviews are being allowed”. (Para-139)
The Amnesty International in its first letter dated July 8, 2002 to the then law minister Jana Krishnamoorthy had raised its serious concern on the media profile of the arrested that had left a negative impact on their right to be presumed innocent as required by Article 14(2) of the ICCPR.
Significantly, the officers of the Special Cell denied on oath any knowledge of the media conference during the cross examination in the trial court. The news channels to this day continue their vilification of Mohammad Afzal by showing the clippings of Mohammad Afzal addressing the conference while portraying him a Jaish-e-Mohammad (JeM) terrorist. This is despite the fact that all the three courts (the special POTA court, High Court, Supreme Court) have exonerated him from the charge of belonging to any terrorist organisation or group. To quote from the Supreme Court judgment:
“The conviction under section 3(2) of POTA is set aside. The conviction under section 3(5) of POTA is also set aside because there is no evidence that he is a member of a terrorist organisation, once the confessional statement is excluded. Incidentally we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organisation is established.” (Page-20)
Denial of the right to defence
Mohammad Afzal had no opportunity to defend himself at the trial court stage for he had no lawyer to represent him. Despite his several requests to the court to provide him a lawyer of his choice he never got one. He, in fact, gave a list of lawyers to the trial court and requested that he should be defended by any of them but none of the lawyers agreed to represent him owing to the fear psychosis created by the police and the media. The trial court finally appointed amicus curiae for Mohammad Afzal against his will. But the amicus curiae proved to be of no help as he did not ever take instructions from Mohammad Afzal. At least twice in writing, Mohammad Afzal had expressed his dissatisfaction regarding the amicus curiae.
The amicus curiae either not at all cross-examined the witnesses on extremely crucial points or he did so very inadequately. Of the 80 odd prosecution witnesses the amicus curiae managed to cross examine only 22 and that too half of them extremely inadequately. Although Mohammad Afzal himself was allowed by the court to cross examine the witnesses and he did so on certain occasions but how can an ordinary person with almost little knowledge and experience of law and legal procedure be expected to master the art of cross examination? All these factors together led to the travesty of legal procedure and severe miscarriage of justice.
Serious allegations not heeded
Mohammad Afzal has never denied the charge that he brought Mohammad, one of the attackers—as charged by the prosecution—to Delhi. He has maintained throughout that it was at the STF headquarters at Srinagar where the STF officers introduced him to Mohammad and told Afzal to take him to Delhi. Mohammad Afzal’s admission that he brought Mohammad to Delhi has been treated as a piece of evidence against him. The investigators and the judiciary took no heed for his allegation that he did it on behalf of the STF officials. Mohammad Afzal’s allegation not only merits a serious consideration but warrants an immediate investigation of the whole case from an entirely different angle.
Deeply flawed and dishonest investigation
Violation of procedural safeguards, callousness and even dishonesty in the investigation to the extent of fabricating evidence is something over which the courts have also expressed their concern. On top of this is the character of the investigating officers. Some of them are now behind bars for taking bribes while some others are facing enquiries for serious charges levelled against them.
Afzal’s plea is not for mercy but justice
Ever since the date of execution of the death sentence was announced, there has been mounting protests in the valley of Kashmir. The people of Kashmir are united in their opinion that what the Indian state is doing has been the only historical experience that they had from Delhi. The judicial murder of Mohammad Afzal is the vindictive policy of the Indian state towards the people of Kashmir. Way back on September 24, 2005, two days after the review petition on the death sentence on Mohammad Afzal was rejected by the Supreme Court, in a meeting organised by the SPDPR in Srinagar, the nationalist leaders, trade union activists and the Srinagar Bar Association jointly passed a resolution which read:
“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 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 Indian lawyers think it is more patriotic to allow a Kashmiri to die rather than ensure he gets a fair trial?”
Tabassum, Afzal’s wife, Ayesha Begum, mother and Ghalib his seven year old son filed a clemency petition on the second week of October, 2006. Afzal himself filed another petition under Article 72 of the Indian Constitution before the President of India in the second week of November 2006. Both the petitions stressed the enormity of the injustice meted out to him throughout the trial from the session’s court to the highest court. This was followed with a curative petition filed in the first week of December with more focus on the grave legal inadequacies of the trial that gave death sentence to someone without even hearing him!
The curative petition is coming up for hearing on the 12th of January 2007.
The campaign to save Mohammad Afzal from the gallows is poised at the moment for a long and arduous struggle. The struggle to ensure that truth makes sense with every one who values the dignity of freedom. The government has so far been non-committal and the right-wing hindutva opposition led by the RSS-BJP combine has used this opportunity for catering votes in the coming UP assembly elections fanning the hysteria of jingoism and hatred. In this moment, it is important that the campaign continue through all possible avenues and forms so as to ensure that the democratic people of India and South Asia and the world will not take this gross injustice to a fellow human being without dissent.
How you can HELP
A. Through campaigns among the international community through
(a) Public Meetings (b) Pamphleteering (c) Signature Campaigns
(d) Demonstrations before
(1) Indian High Commission (2) UN office (3) Various foreign embassies that can put pressure on India
B. Lobbying with various senators, Kashmir groups and with various Human Rights Groups.
C. Demonstrations during the time of the visit of various India Dignitaries.
D. Fax messages to the President, Prime Minister, Foreign Minister, Home Minister, Law Minister and other important parliamentarians.
E. You may write to Indian President:: http://www.presidentofindia.nic.in/scripts/writetopresident.jsp
You may write to Indian Prime Minister: http://pmindia.nic.in/write.htm
For our record, you may CC your appeals to spdprdelhi@gmail.com
With Regards and Best wishes,
In Solidarity,
A. Dasharatha
Gen. Secretary
SPDPR
SAR Geelani
Vice President
PS. All correspondence to SPDPR should be addressed to
Society for the Protection of Detainees’ and Prisoners’ Rights (SPDPR)
H. No. 185, IV Floor, Street No. 3
Zakir Nagar, New Delhi-110025