Afzal and the Right to Fair Trial

The TV channels continue to invite me to debates on death penalty. The corporate media refuses to understand that the fight for Afzal has nothing to do with the debate on death penalty. That is a separate debate. In the case of Mohammad Afzal Guru, the man convicted of being a part of the conspiracy to attack the Indian Parliament in December of 2001, the central question is whether an Indian citizen can be hung without a fair trial.

The arguments for and against the death penalty to Afzal have obfuscated the real issue at stake. The BJP (at least on corporate television) says that since the Supreme Court has given its verdict the government must enforce it. Its more vicious communal arguments are given outside the television channels. It would seem that the BJP has set itself up as the sole upholder of the Indian Constitution.

While there is no doubt that the Supreme Court is an institution that we as Indian citizens must respect, it is also not above scrutiny. There have been corrupt judges, there have been judgements which reflect vested interests and there are studies to show that the Supreme Court of India has over the years been fairer to the richer citizens of this country than to the poor, even when the poor have been able to move the Court. There is nothing disrespectful in criticising a judgement and indeed the criticism and debate has in the past led to major changes in the law.

The Congress is not being able to counter the BJP effectively because it has (as usual) not made up its mind on the issue; so they just postpone the time when they will make up their mind. Their two arguments are that the “law will take its own course” but that is falling into the BJP trap. The second argument is that the BJP too has taken long to decide on the death penalty of several persons.

The Supreme Court has, in a judgement, held that “pardons, reprieves and remissions are manifestations of the exercise of prerogative power…This discretion, therefore has to be exercised on public consideration alone.”

And in a democracy the right to fair trial is a basic right. The right is enshrined in Part three of our Constitution and anyone committed to the values of our Constitution must uphold the right to fair trial.

Mohammad Afzal Guru did not get a fair trial because he was too poor to hire a lawyer. The legal aid services do not provide adequate support. This was amply documented in the curative petition filed by Ms Indira Jaising. The curative petition has this chart which speaks for itself:

The reason for the column on “cross examination by Afzal” is because the Sessions Court judge recognised that the amicus curiae was not doing his job and allowed the accused to cross examine. But this hardly helped because cross examination requires both skill and training of a criminal lawyer and experience to hone one’s skills. Afzal had neither.

The reason why Afzal should not be hanged is simple: he was denied a fair trial, his fundamental right under our Constitution.