On 13 December 2001, five heavily armed individuals attacked the Indian Parliament building in Delhi. In the ensuing confrontation, eight security personnel, one gardener, and the five attackers were killed. After a 17-day investigation, prosecutors charged four Kashmiris – S.A.R. Gilani, Shaukat Hussain Guru, Afsan Guru (Shaukat’s wife), and Mohammed Afzal – with conspiracy to carry out the attack. 

Three years later, the trial court found all four guilty; Gilani, Shaukat Guru and Afzal were sentenced to death and Afsan Guru to five years imprisonment. On appeal, the Delhi High Court acquitted Gilani and Afsan Guru of all charges, but upheld the death sentences of Shaukat Guru and Afzal. The Supreme Court upheld the acquittals, reduced Shaukat Guru’s sentence to 10 years, but upheld Afzal’s three life sentences and a double death sentence. 

The pressure to punish somebody—anybody 

Faced with such a flagrant incident as the attack on Parliament, Indian authorities were under tremendous pressure to arrest suspects and punish them. This pressure pushed India’s rickety criminal justice system past breaking point in Afzal’s case. His death sentence makes a mockery of India’s constitutional promise not to “deprive[] [someone] of his life or personal liberty except according to procedure established by law” — meaning a procedure that is “right, just and fair.” 

Fatally flawed process 

Despite the growing trend towards the abolition of the death penalty worldwide and the Indian Supreme Court’s admonition that the death penalty should only be imposed in the “rarest of rare” cases, India continues to sentence people to death under legally dubious and sometimes arbitrary circumstances. 

For example in Devender Pal Singh Bhullar v. State of Delhi, a divided panel of the Supreme Court confirmed Singh’s death sentence based on an alleged confession that he had later retracted and on circumstantial evidence; his co-accused was acquitted when Singh’s confession was deemed inadmissible. In Harbans Singh v. State of U.P. and Others, three men convicted of playing an equal role in murdering a family received different sentences depending on the Supreme Court bench that heard their appeal — two had their death sentences commuted, while the third was executed. 

Part of the explanation for the apparent capriciousness with which death sentences are imposed and upheld in India lies in the Supreme Court’s own case law. The Court has held that the death penalty should only be imposed “when [the community’s] collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict [it] irrespective of their personal opinion as regards [the] desirability or otherwise of retaining [the] death penalty.” However, if taken literally, little separates this legal rule from the passions of a lynch mob. 

Not only is it unacceptable for the judiciary to succumb to public “collective conscience” when fundamental rights are concerned, but it is important to consider what constitutes the “collective conscience” of the “community” in Afzal’s case. For example, many in Kashmir are warning that executing Afzal would have even more disastrous consequences than the full-blown Kashmiri militancy sparked by Maqbool Butt’s hanging in 1989. 

The public’s apparent expectation that Afzal ought to be killed is unlikely to stem from the actual “facts” of the case, as these were not presented to the public. Rather a media trial began soon after his arrest. Contrary to all norms of fair trial proceedings, one week after the attack on Parliament, the police presented Afzal at a press conference. There he incriminated himself — allegedly after he was beaten by police and his family threatened. The ensuing negative media coverage culminated with a dramatisation of the Parliament attack that aired on national television three days before the trial court declared its verdict; it portrayed the defendants as guilty. The actual guilty verdict appeared to be a foregone conclusion. 

Competent counsel 

Afzal had no legal assistance in the five months after his arrest. Though a lawyer was finally appointed to represent him, she left after a short time to defend Afzal’s co-defendant Gilani. She left her junior colleague as amicus on Afzal’s behalf. Despite Afzal’s protest and the nomination of other advocates, and the junior lawyer’s request to be removed from the case, he remained as amicus for the rest of the trial. He called no defence witnesses and failed to adequately cross-examine the 80 prosecution witnesses. Though the judge allowed Afzal the right to cross-examine witnesses, this was an empty measure considering his lack of legal expertise. Despite all of these shortcomings, the Supreme Court held that he had had “the facility of effective defence.”

Circumstantial evidence 

Though Afzal’s confession was dismissed due to grave procedural irregularities, the prosecution’s case nevertheless proceeded and was supported by circumstantial evidence alone. The lack of competent counsel gravely prejudiced Afzal’s defence because much of this circumstantial evidence remained unchallenged.  

Such evidence included the “fact” that “Afzal knew who the deceased terrorists were”. However, Afzal denied ever identifying their bodies. The only evidence to the contrary was a police memo that was accepted as undisputed evidence by the counsel who had initially represented Afzal. According to Afzal, she made this concession on his behalf without consulting him. 

The evidence also included alleged “frequent telephonic contacts” between Afzal and other terrorists, though the SIM card allegedly used by Afzal was never found, and the only remaining evidence of his cellular number was his inadmissible confession. A shopkeeper testified that Afzal had purchased a phone and SIM card from him in December 2001, but call records for Afzal’s alleged number show that it had been active since November. The Supreme Court considered it unimportant which SIM card had been sold to Afzal; it dismissed the contention that witnesses to the call records were not technical persons, and observed that computer errors were “magnified to discredit the entire document”. 

The government also alleged that Afzal could identify “the abodes or hideouts of the deceased terrorists” and “shops…where various items used for preparation of explosives” were sold. This assertion was supported by a disclosure statement allegedly written by Afzal in December 2001. However, the language of the disclosure statement is fluent and sophisticated, in marked contrast to Afzal’s September 2002 oral testimony before the trial court, which was notable for Afzal’s limited knowledge of English. Moreover, his disclosure statement refers to his alleged co-conspirators as “my associates” and “the terrorists”, unlikely phraseology if these had truly been his partners in crime. Although the Court recognised that the disclosure statement was “most similar to the confessional statement” that had already been thrown out, the Court nevertheless admitted the disclosure statement as evidence. 

Afzal also allegedly “led” the police to “the abodes or hideouts of the deceased terrorists”, where prosecution witnesses identified Afzal in police company. There was no test identification parade for the witnesses to identify Afzal in an unbiased manner. Though the High Court thought that the witnesses had no motive to implicate the accused falsely, this ignores the psychological inclination to “recognise” someone once told that person is guilty (or is a suspect in police custody), and the real possibility that ingrained stereotypes about Muslims and Kashmiris in India affected the identification. 

Lastly, a laptop containing incriminating evidence was supposedly recovered from a truck in which Afzal and Shaukat were arrested. Afzal denies he was arrested anywhere near the truck or the laptop. There were no independent witnesses to the arrest. 

Conclusion 

Due process protections are even more vital when a defendant is on trial for his life. Yet even in high profile cases like Afzal’s, which the government knows will be closely scrutinised, the Indian criminal justice system has great difficulty providing the accused with a fair and legitimate process. Considering the circumstances under which Mohammad Afzal was awarded the death penalty, it is vital that his sentence be at least commuted if not wholly vacated.

 Human Rights Features