Terror convict's case divides India as wife campaigns for mercy

Nationalists want the 'mastermind' of the 2001 attack on parliament to hang - and quickly - while rights activists believe he deserves a retrial.

NEW DELHI // As India moves closer to deciding whether to hang a death row inmate convicted of masterminding an attack on parliament, nationalists and human rights activists have squared off on each side of the debate. Afzal Guru, who was convicted in 2002 of conspiracy in the December 2001 attack on parliament that killed eight security personnel and a gardener and left five militants dead, has been on death row since 2002. He was scheduled to be executed in 2006, but his fate has been in limbo after his wife filed a mercy petition against his death sentence.

Supporters of the BJP, India's Hindu nationalist party, have been holding protests against the delay, saying that Afzal's fate has been politicised by Congress while human rights activist have renewed their call for a for retrial. Delhi's lieutenant governor, Tejendra Khanna said on June 4 that the mercy petition should be rejected, but the final decision lies with India's president, Pratibha Patil.

Despite this outside pressure, India's home secretary, GK Pillai, said last month that the government could not "jump the queue" on the clemency petition of Afzal or fast-track the decision on his execution. "Afzal Guru is in the queue [of mercy petitions in the president's office] and is the 22nd among 28 mercy petitions pending with the government. Nobody will be expedited," Mr Pillai said. There was no indication on how long the process may take, but pundits in the past have said it could take years because the government does not want to cause added unrest to the Kashmir region, where Afzal was a resident.

Nitin Gadkari, the BJP president, said last month that the ruling United Progressive Alliance, led by the Congress Party, "is dithering to hang Afzal because it fears loss of [Muslim] votes and is appeasing terrorists in the process". The BJP also attacked federal government for "not expediting" the hanging. "There is no legal basis that mercy petitions have to be dealt with in a sequence in which they have been submitted. Gravity of the issue certainly demands expediting his hanging and not delaying it further," said Ravi Shankar Prasad, a BJP spokesman.

"If the case of [the Mumbai attack convict] Ajmal Kasab could be fast-tracked, a similar action could be taken in deciding the mercy petition of the parliament attack convict." The Delhi government has held on to Afzal's mercy petition for four years. It returned the file to the home ministry on June 4 with no objection against the death sentence, but the BJP charged that the Delhi government, which is also led by the Congress party, sat on the file for four years because the party was not willing to hang Afzal for fear of losing Muslim votes.

Sheila Dikshit, Delhi's chief minister, said that her government never wanted to oppose the death sentence, but took time to clear the file because it was worried about rioting if Afzal was hanged in the city. P Chidambaram, the Indian home minister, said in May that Afzal was the same as any other convict on death row and the "rulebook could not be thrown away" to fast-track the decision on his mercy petition or execution.

The Indian prime minister, Manmohan Singh, weighed in on the issue, saying: "There is law of the land and legal processes should be allowed to take their course [in the case of Afzal]." It is the legal process that has rights groups renewing their calls to see Afzal get a new trial. Colin Gonsalves, who represented Afzal in his appeal to the Supreme Court and the director of Human Rights Law Network, an NGO, said that since Afzal did not have a defence lawyer in the trial court, witnesses for the prosecution were discharged "without effective and competent cross-examination".

"The record of the trial court shows that undoubtedly he did not receive a fair trial," Mr Gonsalves said. At his initial trial, Afzal was given a court-appointed lawyer. However, the lawyer never visited Afzal and did not prepare any witnesses in his defence. Afzal has asked for a new lawyer, but none would defend him out of fear of being labelled anti-Indian. Two others sentenced to death with Afzal at their first trial when acquitted on appeal. Afzal lost his final appeal to the Supreme Court, with the court ruling "the collective conscience of the society will only be satisfied if capital punishment is awarded [to Afzal]".

However, many Indian rights activists and intellectuals said that Afzal's case should be retried since he did not have a defence lawyer in his initial trial. "As for the overwhelming evidence produced against Afzal, almost nothing was challenged at the trial court, making the task virtually insurmountable for his defence in the appeal courts," said the social activist and Delhi University professor Nirmalangshu Mukherjee.

"Looking at this evidence, therefore, the Supreme Court was obliged to conclude that Afzal was guilty of aiding and abetting the attackers." At the time of his sentence is 2006, Arundhati Roy, the Booker prize winning author and activist, said the prosecution built its arguments on "fabricated stories and evidence". "To invoke the 'collective conscience of society' to validate ritual murder, which is what the death penalty is, skates precariously close to valorising lynch law."

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