The issue of exercising presidential clemency and commuting to life imprisonment the death sentence passed on Mohammad Afzal in the December 13, 2001 Parliament attack case which took a toll of nine lives, not counting the five terrorists killed by the security forces has proved to be extremely divisive. It has pitted those who favour a hard line on terrorism against those considered soft, and politicians and groups in Kashmir against much of the rest of the nation. Yet if Afzal deserves a life sentence rather than death by hanging, it is because the death penalty is abhorrent under any circumstances. To plead for clemency alleging a flawed trial or pointing to incensed Kashmiri sentiment is to miss the point. First, it is clear that he was convicted after a fair trial, with the judiciary from the trial court through the high court to the Supreme Court concurring on both his guilt and his sentence, even while two others were acquitted. Critics of the Afzal verdict have made it out that he did not have proper legal representation; that the evidence against him was not direct but only circumstantial; and that as he did not actually take part in the attack or mastermind it, he should have been given a lesser sentence. These issues were examined at length by the Supreme Court, which found that he was adequately represented. Even after disregarding his confession to the police, the apex court found enough circumstantial evidence of his being a key conspirator who played an active role in the attack. This role included the purchase of mobile phones for the terrorists; being in contact with them in the minutes before the attack; arranging accommodation for them and staying with them; and purchasing vehicles and explosive material for the attack. As for the nature of the offence, the court found it to be "a terrorist act of gravest severity" and "a spectacle of the rarest of rare cases," warranting the death sentence.
The argument rooted in Kashmiri sentiment also seems to be on shaky ground. It is a measure of the peculiar circumstances in Jammu & Kashmir that even mainstream political parties in the State think nothing of identifying themselves with a convicted terrorist and pleading his cause. Yet going by such considerations would be subversive of the fundamental principles of the rule of law and setting a dangerous precedent. For any group or region could use its collective voice and muscle to bale out anyone convicted by a court.
The Hindu has, for some decades now, been calling for the abolition of the death penalty and this consistent editorial position will naturally be valid for Afzal's case as well. After surviving a constitutional challenge, the death penalty is now supposed to be applied only in "the rarest of rare cases," as laid down by the Supreme Court. Yet however grave or gruesome the crime, the taking of a human life by the state under the banner of justice dehumanises society as a whole. The judicial system is not immune to mistakes, and there is always the danger of extinguishing a life in error. That this is not hypothetical has been shown occasionally by DNA evidence clearing a convicted criminal on death row. In a 1930 case in Bihar, five persons were sentenced to death on a charge of murder but had to be released because it was discovered just in time that the case had been totally fabricated by a police officer.
The most common argument advanced in favour of capital punishment is that it is qualitatively different from imprisonment and, as all fear death, it is the most effective deterrent. Yet there is little evidence that the death penalty is any more deterrent than imprisonment for life. Indeed, the evidence, if any, supports the opposite conclusion: the period when the death penalty remained suspended in the United States, for instance, did not see any change in the number of `capital offences.' Very often, rather than deterrence, the unstated rationale is retribution and revenge the taking of a life for a life. In the Afzal case, the Supreme Court comes close to echoing such sentiments when it says: "the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender" and he "is a menace to the society and his life should become extinct." Over the past half century, proposals made on and off for the abolition of capital punishment fell through because of the argument that public opinion and the conditions in the country did not warrant such a radical change. Such a line was taken even by the Law Commission when it examined the issue in detail, but that was in 1967. Now, abolition is becoming more and more the international norm, with the whole of Europe doing without it as India found when Portugal allowed the extradition of Abu Salem on condition that he would not be awarded the death penalty.
The Government needs to turn the issues thrown up by the latest case into a broader discussion on whether India can retain on its statute book something so abhorrent to human rights as the death penalty and should move boldly towards its abolition. Meanwhile, in the specific case of Mohammad Afzal, the death sentence must be commuted to imprisonment for life. This is indeed a fit case for the use of presidential clemency for the right reasons. The pleading by Afzal's wife and seven-year-old son and his background as a surrendered militant who cooperated with the authorities are reasons sound enough to exercise the executive power of clemency, which may be subject to broad judicial scrutiny but still retains a large measure of discretion.