An Appeal to the President of India
Honorary Sir,
We, on behalf of the All India Committee against Death Penalty, here by appeal to you to commute the death sentence of Mohammad Afzal, the only person given capital punishment in the Parliament attack case.
We wish to put forward before you the following arguments in favour of this appeal:
1. Md. Afzal, while doing his MBBS course, joined JKLF in 1990. When he was disillusioned about the movement, he surrendered to BSF with two other fellow members. He was given a Certificate of Surrendered Militant. Afterward he tried his best to lead a normal life with his family members.
2. But the STF and other Security Forces operating in Kashmir did not allow him a normal life. He was continuously harassed and tortured in the name of extracting information about the militant activities from him.
3. He was made an accused of the Parliament attack case, but the Supreme Court has acquitted him of charges of belonging to any terrorist organizations or gang under POTA.
4. It is also an open fact that he was not involved in the actual attack on Parliament. He did not kill or even injure anyone.
5. He did not get an opportunity to defend himself in the court properly. He did not get a lawyer of his own choice, and so he was denied a fair trial.
6. The role of investigating agencies in this case was very much biased and sloppy. These agencies not only tried to implicate a Delhi University teacher S.A.R.Geelani (who was subsequently acquitted by the High Court and Supreme Court), but also pressurised Afzal and his family members to shut their mouth during the whole trial process. There are reports that they threatened Afzal and his family members to kill all of them, if they dare to reveal the facts anywhere. But the people of India deserve the right to know the real facts behind the attack on the Parliament, and also about those persons and outfits responsible for this terrorist attack. We are of the opinion that by hanging Afzal some of the real facts of this attack will also we buried for ever.
7. We also appeal to commute the capital punishment of Md. Afzal on theoretical and moral grounds, given below:
(a) The root causes of violence and terrors are inherent in the socio-economic and political system. Without changing the system we cannot stop the violence and terrorist activities by hanging a few inviduals like Md. Afzal.
(b) Death penalty is a brutal, inhuman and disgraceful form of punishment, which amounts simply to an act of vengeance by state. Vengeance can not be the basis of modern law or a legitimate motivation of the state.
(c) World wide 120 countries have already abolished the death penalty either in law or in practice. So, the Indian state should also abolish this brutal form of punishment.
(d) Death penalty is an inherently unjust and arbitrary punishment. Global studies suggest that death penalties are being awarded mostly to poor, less educated and marginalised sections of the societies. In India such punishments are being given to landless, Dalits, OBC’s and Muslims mainly. We have already put the facts of Bihar, when our delegation met you with an appeal to commute the death sentences of Bara Case accused.
(e) All investigations are subject to human error. Such error becomes irreversible if death penalty is imposed. There have been cases of executed persons, being proved innocent after their death.
(f) One strong argument in favour of death penalty is that it deters people from crime. But worldwide evidence of this claim is singularly lacking. Countries like U.S.A. and China, where huge numbers of accused are getting death punishment, did not show any decline in crimes.
So, we earnestly appeal to you to pardon Md. Afzal by commuting his death sentence. It will also help in solving the militancy of Kashmir. We have already witnessed that the hanging of Maqbul Bhatt in the 1980’s, sparked off a long phase of unrest in Kashmir.
We hope that Your Excellency will consider our views seriously and decide to commute the death sentence of Md. Afzal.
With Regards.
We, the Convenors of All India Committee against Death Penalty
1. Nirmaladeshpande, Member of Parliament
2. Surender Mohan, Ex. Member of Parliament
3. Gautam Navlakha, Consultant Editor, EPW
4. Tripta Wahi, Prof., Delhi University
5. Ali Javed, Prof., Delhi University
6. Sunil, Trade Union Leader, Delhi
7. Arjun Prasad Singh, Ed.Board Member of Jan Pratirodh
Delhi,
13.10.2006
All India Committee Against Death Penalty
Contacts: Tripta Wahi : 011 – 27667209; Ali Javed : 9868571543; Surender Mohan : 011 – 22231883; Gautam Navlakha:9811153254; Nirmaladeshpande: 011-23782683; Arjun Prasad Singh: 9891703484
Chairperson:
Justice V. R. Krishna Iyer
Committee Members:
Justice (Rtd.) Ajit Singh Bains, Punjab & Haryana High Court
Justice (Rtd.) D K Basu, Kolkata High Court
Justice (Rtd) Rajendar Sachchar, Delhi High Court.
Justice (Rtd.) S. M. Daud, Mumbai High Court
Justice (Rtd.) Suresh, Mumbai High Court
Rabi Ray, Ex. Speaker, Lok Sabha
Jaipal Reddy, Member Parliament
Dr. Ashok Mitra, Ex. Finace Minister, W.B.
Gurusharan Singh, Dramatist, Punjab
Prakash Ambedkar, Pol. Activist, Maharashtra
Girish Patel, Advocate, Gujarat
Surender Mohan, Ex. M.P.
Indira Jai Sing, Advocate, Supreme Court
Arundhati Roy, Writer, New Delhi
Asghar Ali Engineer, Mumbai
Nandita Haksar, Advocate, Supreme Court
Dr. K Balagopal, Human Rights Forum, Hyd.
K G Kannabiran, All India President, PUCL
Prashat Bhushan, Advocate, Supreme Court.
Varvara Rao, Revolutionary Poet,. AP
Nedumaran, Peoples Rights Federation, T.N.
Vrinda Grover, Advocate, Supreme Court
Dr. Tripta Wahi, Hindu College, Delhi University
D. R. Chaudhary, Ex. Chairman, HPSC, Haryana
Gaddar, Revolutionary Balladeer, A.P
Gautam Navlakha, Editorial Consultant, EPW
Prabahkar Sinha, Human Rights Activist, Bihar
Prof. B.P. Kesari, Retd. Professor, Ranchi University
Prof. Gopal N. Guru, Professor, J N University
Prof. Ali Javed, HoD, Urdu Deptt. Delhi University…and Others
***
Oppose Death Penalty To Landless & Poor Peasants
The Supreme Court on 15 April 2002 confirmed death penalty to Krishna Mochi, Bir Kuer Paswan, Dharmendra Singh and Nanhe Lal Mochi, all poor peasants from Gaya district of Bihar. The four were convicted for the killings at Bara village in Gaya district in 1992 in which 35 men belonging to upper caste families were killed. In another case the Supreme Court has confirmed death penalty on Shobhit Chamar, a dalit landless labourer from Bhabua district. He is also accused in the killing of upper caste landowner.
Who are these people condemned to death?
Nanhe Lal Mochi and Krishna Mochi were semi-bonded dalit agicultural labourers who cultivated the fields of the Bara landowners. They were well known to the Bara landowners as those active in the peasant organisation and therefore their adversaries. They have spent 7 and 13 years respectively in jail till date, of which the last two years were spent in condemned cells in Bhagalpur jail. Veer Kuer Paswan was a dalit resident of nearby Khutbar village who herded goats but due to serious indebtedness was forced to work as an attached labourer. He too was known as a participant in struggles for wages and land led by the local poor peasant organisation. Dharmendra Singh is Rajput by caste, educated till matric who tried to leave cultivation, but unable to obtain remunerative employment, came back to the village. The larger landowners of the village had meanwhile captured his land. He approached the court to regain control over his land, meeting expenses by taking loans. The court decided in his favour, but by then his financial state was miserable and Bara massacre had occurred. His opponent in the court case implicated him in the Bara case.
How were the charges framed against them?
Immediately after the Bara incident, police started rounding up people from dalit hamlets who were known to have participated in land and wage struggles. The terror created by the landowners and police forced dalits from neighbouring villages to flee. Bhatbigha dalit tola of Bara village was completely deserted. The FIR was filed on the basis of an eyewitness account naming 35 people and 400-500 others. 115 people were arrested of whom 13 were later charged. This eyewitness was however not part of the witnesses produced in court. No Test Identification Parade was conducted to identify the accused.
The charges were filed under TADA, a law that the Parliament allowed to lapse in 1995, in the face of its rampant misuse due to the arbitrary powers it gives to police officers, and since it violates all norms acceptable evidence and of a fair trial and. The numerous instances of killings of dalits by upper caste landlords never invited the provisions of TADA. No authorisation was taken for the application of TADA. Still the trial for the Bara killing was conducted under TADA after the lapsing of the law.
Two weeks after the Bara killings, police arrested Bihari Manjhi and two others from Bodh Gaya under another case. The Superintendent of Police was said to have recorded his confession that named many others as involved in the Bara killings. Such confessions are valid evidence under TADA. But in this case the SP did not record it but stated in court that he had assigned this job to an Inspector in his presence. The SP was unable to identify Bihari Manjhi in court. The Inspector turned out to be an accused in the murder of the nephew of Wakil Yadav, another accused in the Bara killings whose inclusion was based on the confession of Bihari Manjhi!
Still this confession became the clinching evidence and the basis for conviction of 9 people by the TADA court – four to death, four to life imprisonment and one to 10 year imprisonment.
How this happened is again related to the way TADA operates wherein the accused were denied their right to bail and to a fair trial, but all the procedures in TADA meant as a check on the prosecution were conveniently flouted. An inspector was made the investigation officer (I.O.) when TADA requires that investigation be conducted by an officer of rank not lower than a DSP. The I.O. was changed midway. The second IO stated in court that most of the investigation was conducted by the first I.O., yet neither the first I.O. nor his case diary was presented before the court. TADA however ensured that the accused remained continuously in jail and were even denied appeal to the High Court, which is normally the court that can confirm a death sentence. In this way the accused were denied one level of appeal.
The case was heard by the Supreme Court against eight of the accused. One had already completed his 10 years and did not appeal. Four facing life imprisonment were acquitted. The court was divided in its opinion on the other four. Two judges awarded death penalty to the four while the third judge acquitted one and converted the sentence to life imprisonment for the other three. Bihari Manjhi, whose confession to the police became the basis for the conviction in the TADA court, was acquitted.
This time the reason for the conviction was identification of the accused by witnesses. But the witness accounts show serious discrepancies. Each witness was either unable to identify the accused s/he had named, or denied they had ever named them, or named them for the first time in court, or wrongly identified the accused. In this game of matching names and faces, the faces that were randomly matched correctly got sentenced to death. So serious were the errors that one of the judges stated in the judgment that: “It is apparent that the investigation in the case is totally defective”; and again “it can be said without any doubt that almost all witnesses have exaggerated to a large extent.
But the conviction and sentencing failed to address the crucial facts that (i) the witnesses never said that these accused were involved in any specific violent act; (ii) that they held any weapon; and (iii) the police never recovered any weapon from them.
Why did the Bara killings occur?
The structure of landholdings in rural Bihar that emerged after the land reforms, initiated by the government since the 1950s, left the lives of the poorest sections comprising dalits, landless and small peasants largely unaffected. They remained at the mercy of landlords for access to land, work, food and credit. Raising of any demands by this section led to swift and brutal attacks. Things began to change from the mid and late 1970s when organisations of this poorest section of the people started forming in the plains of central Bihar. By the mid eighties, different parties of the CPI (ML) emerged as the major organisers of the poor in rural Bihar. Successful struggles were waged for distribution of ceiling surplus lands, access to common lands and other resources, better wages; against feudal practices of forced labour, indebtedness and to stop sexual exploitation of women workers. The state at best remained a mute spectator, and in perceiving these struggles of the rural poor as a law and order problem, failed to even address the issues raised by the struggles.
By mid 1980s landowners started forming caste-based armies to reverse the gains achieved by the struggles of poor peasants. Bhoomi Sena, Kisan Sangh, Sunlight Sena, Sawaran Liberation Front, Ranbir Sena are some of the more notorious ones. Their modus operandi was to create terror through organised masscares. They attacked dalit hamlets, setting them on fire, killing men, women and children, and destroying houses and goods. Police was either found conniving with these armies or at best was a spectator. Even the IG of Bihar police admitted in a policy document that the police was responsible for promoting the formation of these armies. But police repression on even peaceful rallies by the poor was growing. In 1986 at a mass rally at Jehanabad demanding distribution of a fourth of an acre of land for nine landless families police opened fire killing 23 people.
The Sawaran Liberation Front was the most brutal one till that time operating in Gaya, Jehanabad, Patna and Aurangabad. Targetting its leaders, Ramadhar Singh ‘Diamond’, and Haridwar Singh became a necessity for the peasant movement. Bara village was a known hideout of these leaders. News of their presence in Bara village led to the Maoist Communist Centre organising an attack with hundreds of people on the upper caste village.
Why should the death penalty be opposed?
The details of the present case make it amply clear that awarding of death penalty is unfair. When one judge acquits an accused and two judges award death penalty, the only conclusion one can draw is that the judgment of the court shows a high degree of subjectivity. In addition the flouting of procedures by the investigation, exaggerated and faulty witness accounts makes the conviction itself seriously suspect. One judge of the Supreme Court has even hinted at ‘free fabrication of evidence’. Death sentence cannot be permitted in such a situation and the imposing of the irrevocable penalty can lead to serious miscarriage of justice.
The killings such as at Bara form the few exceptions in a long string of killings by upper caste landlord armies. But the killings by landlords have neither invited harsh punishments, let alone the death penalty. Most have not even resulted in conviction. The state has never found them to be a fit case for the imposition of TADA. All this simply shows that “terrorism” is defined merely as a violent activity which challenges the existing power structure. And death penalty cannot be awarded when dalits are killed by landlords simply because such instances are the norm. Death penalty, like TADA and POTA, leads to arbitrariness in law and punishment and should be opposed.
Death penalty in our country is awarded only in the rarest of rare cases. This statement is as subjective as it can get. The fact is that only the poor and dalits or else those whose crimes are seen as threats to the state get this punishment. This is natural because such accused are normally unable to get access to competent lawyers. The subjective factors such as judicial authorities’ lack of empathy with the lives of such accused makes the awarding of the extreme penalty more likely. Death penalty is therefore both subjective and biased.
The only argument presented in favour of death penalty, is that it deters people from crime. But evidence of this is singularly lacking. In the present case, no such claim can be made. Since the Bara massacre landlord armies have killed several hundred more persons and peasant organisations have retaliated in some cases. Crimes, both by the landlord armies and by the organisations of the poor are a reflection of the conditions of existence of the people and the role played by the state. Doing four people to death makes no difference to this living reality.
Crimes have a social, economic and in such cases, a political basis, which means that crime can only be reduced by addressing its root causes. Officially murdering 4 people disregarding this larger responsibility of society and state is brutal, and amounts simply to an act of vengeance by the state. Vengeance cannot be the basis of modern law, or a legitimate motivation of the state.
More apparently in this case, but in virtually every case of heinous crime, the responsibility for the crime also rests upon society. The penalty of death tries to shift the entire blame on to the criminal and society in turn forgets the lessons that need to be learnt. The myth that purging society of some aberrant individuals is the solution to crime needs to be shattered. Abolition of the death penalty is a first step in that direction.
We appeal to everybody to oppose this death sentence in every sphere of life to prevent the gross miscarriage of justice. Join rallies and write letters to the President of India and to the Governor of Bihar to commute the death penalty against the five landless peasants.
All India Committee Against Death Penalty
For more details: Gautam Navlakha, sagrik@vsnl.com or 9811153254
New Delhi, 23 April 2004
